General Terms of Service

Last Updated: October 2024

These Terms of Service apply to all our websites and platforms, including nexperk.com, academy.nexperk.com, and vanessatrower.com, operated by NEXPERK PTY LTD (ABN 60 657 976 988), a New South Wales, Australia business. By accessing or using our websites, services, or products, you agree to these Terms of Service. If you do not agree with these terms, please do not use our services.

1. Acceptance of Terms

By using our websites or engaging with our services, you agree to comply with these Terms of Service, as well as any other policies referenced herein. If you have any questions, feel free to reach out to us at hello@nexperk.com or call 0498 777 500

2. Eligibility

Our services and websites are intended for users who are 18 years of age or older. By using our services, you represent that you meet this eligibility requirement.

3. Event Registrations and Mailing List

When you register for any of our events, whether in-person or online via platforms such as Zoom, you will be added to our mailing list. This allows us to send you updates, news, and special offers. You can unsubscribe from our mailing list at any time by contacting us at hello@nexperk.com or using the unsubscribe link in our emails.

4. Payments, Fees, and Refunds

All payments for events, courses, or other services must be made in full at the time of registration or purchase. We offer a refund within 2 days after the first session of any course if you are not fully satisfied. Please contact us directly at hello@nexperk.com to request a refund. Note that due to the nature of digital products, templates, and other downloadable content, these are non-refundable.

We reserve the right to cancel or reschedule any event or course due to unforeseen circumstances. In such cases, you will be offered a full refund or the option to transfer your registration to a future event. NEXPERK PTY LTD is not responsible for any additional costs incurred by you as a result of such cancellations or rescheduling.

5. Intellectual Property

All content on our websites, including text, images, designs, graphics, trademarks, and service marks, is the property of NEXPERK PTY LTD or our partners and collaborators. You may not use any of this content without our express written consent. If you would like to share or use any of our materials, please contact us for permission.

You may not copy, reproduce, distribute, or create derivative works from any content provided by NEXPERK PTY LTD without our prior written consent. Any unauthorized use of our intellectual property may result in legal action.

6. Disclaimer of Warranties

Our websites and services are provided on an "as is" and "as available" basis. We make no warranties or representations regarding the accuracy or completeness of any content provided on our sites or through our services. To the fullest extent permitted by law, NEXPERK PTY LTD disclaims all warranties, express or implied, including but not limited to implied warranties of merchantability, fitness for a particular purpose, and non-infringement.

7. Limitation of Liability

NEXPERK PTY LTD is not liable for any damages, including but not limited to direct, indirect, incidental, or consequential damages arising from your use of our websites, services, or products. This includes, but is not limited to, damages for loss of profits, data, or other intangibles, even if we have been advised of the possibility of such damages.

You agree that your use of our services, websites, and products is at your own risk. NEXPERK PTY LTD does not guarantee that our services will be uninterrupted or error-free, and we are not responsible for any technical malfunctions or issues that may arise.

8. Indemnification

You agree to indemnify and hold harmless NEXPERK PTY LTD and its affiliates, officers, and employees from any claims, damages, losses, liabilities, and expenses (including reasonable legal fees) arising from your use of our websites or services, your violation of these Terms, or your violation of any rights of another party.

9. Governing Law

These Terms of Service are governed by the laws of New South Wales, Australia. Any disputes arising from these terms will be resolved in the courts of New South Wales.

10. Changes to Terms

We reserve the right to modify these Terms of Service at any time. Changes will be posted on our websites, and your continued use of our services constitutes acceptance of the updated terms.

11. Event Participation and Content Use

11.1 Speaking and Participation
By speaking or participating in any NEXPERK event, whether as an invited guest, panelist, or attendee, you agree that your contributions—including but not limited to your voice, likeness, comments, and any other form of participation—may be recorded and used by NEXPERK PTY LTD for future use. This may include, but is not limited to, blog posts, promotional materials, social media content, training resources, and other educational purposes. You acknowledge that these contributions are provided voluntarily and without expectation of compensation, and you grant NEXPERK a perpetual, worldwide, irrevocable, royalty-free license to use, reproduce, modify, and distribute your contributions in any format or medium.

11.2 Photography and Videography
By attending any NEXPERK event, you grant NEXPERK PTY LTD the right to take photographs and record videos during the event, which may include your image and likeness. You consent to the use of these photos and videos for promotional purposes on our websites, social media platforms, and in other marketing materials.

11.3 Use of Event Materials
Any materials, presentations, or content shared during our events are the property of NEXPERK PTY LTD. You may not reproduce, distribute, or use these materials for commercial purposes without our express written permission.

11.4 Assumption of Risk
By attending any NEXPERK event, whether in person or online, you assume all risks associated with your participation. NEXPERK PTY LTD is not responsible for any injury, loss, or damage that may occur as a result of your attendance or participation in our events.

11.5 Release of Liability
You release NEXPERK PTY LTD, its affiliates, officers, employees, and agents from any liability for any claims, damages, losses, or expenses arising out of or in connection with your participation in any NEXPERK event, including but not limited to personal injury, property damage, or any other loss.

Privacy Policy

Last Updated: August 2024

NEXPERK PTY LTD ("we", "our", "us") is committed to protecting your privacy. This Privacy Policy explains how we collect, use, share, and protect your personal information when you use our websites, register for our events, or engage with us on social media.

1. Information We Collect

  • Personal Data: We collect personal information such as your name, email address, phone number, and payment details when you register for events, sign up for newsletters, or purchase products or services.

  • Financial Data: Payment information is collected and processed by third-party providers such as Stripe and PayPal. We store limited financial data.

  • Social Networking Data: We may access public information from your social media profiles if you interact with us on platforms like Facebook, Instagram, LinkedIn, etc.

  • Cookies and Tracking Technologies: We use cookies and similar tracking technologies to enhance your experience on our websites.

2. How We Use Your Information

We use the information we collect to:

  • Process event registrations and payments.

  • Send you updates, newsletters, and promotional materials.

  • Improve our websites and services.

  • Respond to your inquiries and provide customer support.

  • Deliver targeted advertising and marketing.

3. Sharing Your Information

We do not sell or rent your personal information. We may share your data with trusted third-party service providers who assist us with our operations, including payment processing, email marketing, and website analytics.

We may also share your information when required by law or to protect our rights, property, or the safety of others. This includes sharing information in response to a legal request, such as a subpoena or court order, or when we believe in good faith that disclosure is necessary to protect our rights, your safety, or the safety of others.

4. Data Security

We take reasonable measures to protect your personal information from unauthorized access, misuse, or disclosure. However, no data transmission over the internet is completely secure, and we cannot guarantee absolute security.

By using our websites and services, you acknowledge and accept these risks.

5. Your Rights

You have the right to:

  • Access, update, or delete your personal information.

  • Unsubscribe from our mailing list at any time.

  • Request a copy of the data we hold about you.

  • Object to or restrict the processing of your data.

To exercise any of these rights, please contact us at hello@nexperk.com.

6. Cookies

Our websites use cookies to enhance your browsing experience. You can manage cookie preferences in your browser settings. Disabling cookies may affect your ability to use certain features of our websites.

7. Data Retention

We retain your personal data as long as necessary to fulfill our legitimate business purposes or comply with legal obligations. You may request that we delete your data at any time by contacting us at hello@nexperk.com. However, please note that we may retain certain information as required by law or for legitimate business purposes.

8. International Data Transfers

Your information may be transferred to and stored on servers located outside of Australia, including in the United States. We take appropriate measures to ensure that your data is protected in accordance with applicable laws.

9. Children’s Privacy

Our services are not intended for use by children under 18. We do not knowingly collect personal information from children. If you believe we have collected data from a child, please contact us to have it removed.

10. Changes to This Policy

We may update this Privacy Policy from time to time. Any changes will be posted on our websites, and your continued use of our services constitutes acceptance of the updated policy.

11. Limitation of Liability

To the fullest extent permitted by law, NEXPERK PTY LTD will not be liable for any indirect, incidental, special, or consequential damages arising from your use of our websites or services. This includes, but is not limited to, damages for loss of profits, data, or other intangibles, even if we have been advised of the possibility of such damages.

12. Contact Us

If you have any questions or concerns about our Privacy Policy or how we handle your personal information, please contact us at hello@nexperk.com.

NEXPERK PTY LTD Contact Information:

Level 1/5 George St, North Strathfield, Wangal Country NSW 2137
Email: hello@nexperk.com
Phone: 02 8060 8801

Terms of Engagement / Terms of Service

These Client Terms, together with any Key Agreement Details (defined in clause 1) and Proposal, set out the agreement (this ‘Agreement’) under the terms of which Nexperk Pty Ltd (ABN 60 657 976 988) (‘Nexperk’) provides Services (defined in clause 2) to you or the company which you represent (the ‘Client’).

1 THIS AGREEMENT

(a) These Client Terms, together with the Key Agreement Details and Proposal, set out the terms under which Nexperk provides the Services to the Client (this Agreement).

(b) These Client Terms will apply to all the Client’s dealings with Nexperk, including being incorporated in all agreements, quotations, Proposals or orders under which Nexperk is to provide services to the Client.

(c) The Client will be taken to have accepted this Agreement if the Client accepts this Agreement, or if the Client orders, accepts, or pays for any services provided by Nexperk after receiving or becoming aware of this Agreement or these Client Terms.

(d) In the event of any inconsistency between these terms and conditions, the Proposal and the Key Agreement Details, the order of priority will be as follows:

(i) these terms and conditions;

(ii) the Key Agreement Details, subject to any Special Conditions, which will take priority over both these terms and conditions and the Proposal; and

(iii) the Proposal.

2 SERVICES

2.1 SCOPE OF SERVICES

(a) In consideration for the payment of the fees set out in the Key Agreement Details and/or Proposal (Fees), Nexperk will provide the Client with the services set out in the Key Agreement Details and/or Proposal (Services).

(b) Unless otherwise agreed in writing, Nexperk may, in its discretion:

(i) not commence work on any Services until the Client has paid any Fees or deposit payable in respect of such Services; and

(ii) withhold delivery of Services until the Client has paid an invoice in respect of any Services, including invoices for previous Services that have already been provided.

2.2 CHANGES TO SCOPE

(a) The Client must pay a ‘change in scope fee’, in an amount reasonably determined by Nexperk (Change Fee) for changes to Services requested by the Client which alter the scope set out in the Key Agreement Details and/or Proposal and requires Nexperk to perform additional work or incur additional costs (Changes).

(b) Nexperk will only be required to perform the Changes if:

(i) Nexperk agrees in writing to perform the Changes;

(ii) the Client confirms in writing that they wish for Nexperk to proceed with the Changes and the relevant Change Fee; and

(iii) the Client agrees to pay the Change Fee.

(c) This Agreement will apply to any Services that are the subject of a Change without this Agreement needing to be signed again.

3 SPECIFIC SERVICES

3.1 HOSTED SERVICES

If the Services to be provided by Nexperk include services to host the Client’s website, application or other information or data, including the Client’s learning management system (Hosted Services), the following terms apply unless otherwise agreed in writing:

(a) (hosting location) The Client acknowledges that Nexperk uses storage servers that may be located outside Australia.

(b) (service quality) While Nexperk will use its best efforts to select an appropriate hosting provider, it does not guarantee that:

(i) the Hosting Services will be free from errors or defects; or

(ii) the Hosting Services will be accessible or available at all times;

(c) (security) Nexperk will use its best efforts to ensure that the Client’s website, application or other information or data (Client Data) is stored securely, however Nexperk does not accept responsibility or liability for any unauthorised use, destruction, loss, damage or alteration to the Client Data, including due to hacking, malware, ransomware, viruses, malicious computer code or other forms of interference.

(d) (backups & disaster recovery) Nexperk will use its best efforts to create scheduled daily backups of Client Data stored by Nexperk. In the event that Client Data is lost due to a system failure (e.g. a database or webserver crash), Nexperk will attempt to restore the Client Data from the latest available backup, but cannot guarantee that this backup will be free from errors or defects.

(e) (troubleshooting) Nexperk’s Hosted Services does not include troubleshooting or fixing application or data-based failures and additional fees may apply for these sorts of services.

3.2 CONTENT DEVELOPMENT

If the Services to be provided by Nexperk include content development, the following terms apply unless otherwise agreed in writing:

(a) The Client acknowledges and agrees that Nexperk may employ artificial intelligence (AI) to create, modify and/or deliver the Services, including (without limitation) written text, images, videos and other media (AI Content).

(b) The parties acknowledge and agree that it is the Client’s responsibility to verify the accuracy and quality of the AI Content before its use and/or publication in the Deliverables.

(c) While Nexperk will use its best endeavours to ensure the accuracy and reliability of the content, the Client acknowledges that AI Content may have inherent limitations including providing incomplete or inaccurate information. Nexperk will not be liable for any loss or damage suffered by the Client in connection with the use and/or publication of AI Content or any copyright infringement that results from the use of AI Content sourced from other locations.

4 DISCLAIMER

4.1 NO LEGAL OR FINANCIAL ADVICE

(a) The Client agrees that all information, recommendations and advice provided by Nexperk as part of the Services is:

(i) general in nature;

(ii) may not be suitable for the Client’s circumstances; and

(iii) based on the information provided by the Client to Nexperk.

(b) The Client agrees that:

(i) no information, recommendations and advice provided as part of the Services is intended to be legal, accounting, financial, tax, insurance or professional advice of any kind and it should not be relied upon as such;

(ii) the Client should obtain their own independent legal, accounting, financial or other professional advice before relying on the Services; and

(iii) by not seeking independent professional advice, the Client accepts the risk that the information, recommendations and advice provided to them as part of the Services may not meet the specific needs of their business.

4.2 NO GUARANTEE

(a) All information, recommendations and advice provided as part of the Services is an opinion only, based on Nexperk’s professional experience and expertise.

(b) While the Services are intended to help the Client’s business, Nexperk does not guarantee, warrant or represent that, as a result of receiving the Services, a specific outcome for the Client will occur or that that the Client’s business, will achieve any growth or particular outcome (including, for example, profit growth or an increase in customers) or that any growth or particular outcome will occur at all.

(c) The Client agrees to make their own independent assessments and evaluations prior to relying on any information, recommendations and advice provided by Nexperk as part of the Services.

4.3 RELIANCE ON CLIENT MATERIALS

(a) The Client warrants that all documentation and information provided by the Client to Nexperk for the purpose of receiving the Services is complete, accurate and up-to-date.

(b) The Client releases Nexperk from all liability in relation to any loss, damage or expense arising out of or in connection with the Services, to the extent such loss, damage or expense is caused or contributed to by:

(i) documentation and information provided by the Client being incomplete, inaccurate or out-of-date; or

(ii) Nexperk's reliance on such documentation or information to provide the Services.

4.4 NON-EXCLUSIVITY

The relationship between the Client and Nexperk is non-exclusive. The Client acknowledges and agrees that Nexperk may provide Services to any third party, including (without limitation) those in the same or similar industry as the Client.

5 CLIENT OBLIGATIONS

5.1 PROVIDE INFORMATION AND ASSISTANCE

The Client must provide Nexperk with all documentation, information and assistance reasonably required by Nexperk to perform the Services. For the avoidance of doubt, this includes documentation relating to the Client’s standard operating systems, procedures and onboarding manuals.

5.2 PROVIDE A SUBJECT MATTER EXPERT

(a) If requested by Nexperk, the Client must provide Nexperk with a vetted subject matter expert (SME) to collaborate and consult with throughout the course of the Project Period.

(b) The Client acknowledges and agrees that the SME must:

(i) be a vetted expert in the specific subject matter;

(ii) provide accurate, relevant and timely information, guidance and feedback to Nexperk; and

(iii) actively participate in all necessary consultations, meetings, and discussions as reasonably required by Nexperk.

(c) For the avoidance of doubt, the Client is responsible for vetting the SME to ensure they have the necessary expertise, qualifications, and background to fulfil their obligations outlined in this clause 5.2.

(d) The Client must ensure that the SME provides feedback on all documents or other mock-ups provided to the SME within the agreed time frame. If the SME has delays in providing feedback, there may be delays in the delivery of the Services which Nexperk will not be liable for.

(e) In the event the SME becomes unavailable or unable to fulfil their responsibilities during the Project Period, the Client shall promptly appoint a suitable replacement and inform Nexperk of such replacement.

5.3 PROVIDE ACCESS

The Client agrees to provide Nexperk with access to:

(a) the Client’s personnel, to the extent required to perform the Services;

(b) the Client’s website (but only where Nexperk is providing Services that involve making updates or changes to the Client’s website);

(c) any software or analytics used by the Client in connection with the Client’s business, including any accounting software;

(d) the Client’s learning management system, if applicable, to enable Nexperk to deliver and integrate the Services effectively; and

(e) any other third party or other accounts used by the Client (including login details and passwords),

as reasonably required by Nexperk to perform the Services.

5.4 COMPLIANCE WITH LAWS

The Client warrants that it will not by receiving or requesting the Services, or during receiving or requesting the Services, or otherwise during any Project Period:

(a) breach any applicable laws, rules and regulations (including any applicable privacy laws and any relevant industry codes) (Laws);

(b) do anything which may cause Nexperk to breach any Law;

(c) breach the direction of any government department or authority; or

(d) infringe the Intellectual Property Rights or other rights of any third party or breach any duty of confidentiality.

6 TIMING

(a) In the course of Nexperk performing the Services, the parties may agree on a schedule for providing Services and/or Deliverables, including estimated dates of completion, deadlines or schedules (Schedules).

(b) Nexperk will use its best efforts to meet these Schedules, however these are subject to change if unforeseen complexities arise. In these cases, Nexperk will use its best efforts to minimise the impact of such changes.

(c) Nexperk reserves the right to revise Schedules in the event that a delay is caused by the Client’s failure to provide timely feedback or other information or Materials reasonably requested by Nexperk in order to perform the Services.

7 PAYMENT

7.1 FEES

The Client must pay to Nexperk the Fees in the amounts and at the times set out in the Key Agreement Details, the Proposal or as otherwise agreed in writing.

7.2 TIME FOR PAYMENT

Unless otherwise agreed in the Key Agreement Details or in writing:

(a) if Nexperk issues an invoice to the Client, payment must be made by the time(s) specified in such invoice; and

(b) in all other circumstances, the Client must pay for goods and services within 7 days of receiving an invoice for amounts payable.

7.3 PAYMENT METHOD

The Client must pay the Fees using the fee payment method specified in the Key Agreement Details.

7.4 EXPENSES

Unless otherwise agreed in writing:

(a) the Client will bear all travel, accommodation, office stationery, computer storage, media and related expenses reasonably incurred by Nexperk in connection with the Services; and

(b) any third-party costs incurred by Nexperk in the course of performing the Services may be billed to the Client, unless specifically otherwise provided for in the Key Agreement Details.

7.5 LATE PAYMENT

If the Client does not pay an amount due under this Agreement on or before the date it is due:

(a) Nexperk may immediately cease providing the Services;

(b) Nexperk may seek to recover the amount due by referring the matter to a collection agency;

(c) without limiting any of Nexperk’s other rights under these terms, the Client must pay Nexperk interest at the rate of 20% per annum, on each amount outstanding. However, before applying this interest, Nexperk will provide the Client with a written notice giving an additional 7 days to complete the payment. If payment is still not received by the end of this 7-day grace period, interest will accrue from the expiration of that period until the date the full payment is received by Nexperk ; and

(d) the Client must reimburse Nexperk for any costs it incurs, including any legal costs, in recovering the amount due or enforcing any of its rights under this Agreement.

7.6 GST

Unless otherwise indicated, amounts stated in the Key Agreement Details and/or Proposal do not include GST. In relation to any GST payable for a taxable supply by Nexperk, the Client must pay the GST subject to Nexperk providing a tax invoice.

7.7 CARD SURCHARGES

Nexperk reserves the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard or American Express).

7.8 ONLINE PAYMENT PARTNER

We may use third-party payment providers such as Stripe and Xero (Payment Providers) to collect payments for Services. The processing of payments by the Payment Provider will be, in addition to these terms, subject to the terms, conditions and privacy policies of the Payment Providers, to the maximum extent permitted by law, we will not be liable for the security or performance of the Payment Provider. We reserve the right to correct, or to instruct our Payment Provider to correct, any errors or mistakes in collecting your payment.

8 ACCREDITATIONS

Unless otherwise agreed in writing:

(a) all displays or publications of any deliverables provided to the Client as part of the Services must, if requested by Nexperk, bear an accreditation and/or a copyright notice including Nexperk’s name in the form, size and location as directed by Nexperk; and

(b) Nexperk retains the right to list the Client’s name and logo in Nexperk’s marketing materials, portfolios and websites, and other media or exhibits for the purposes of showcasing Nexperk’s client base, relationships and professional experience.

9 THIRD PARTY GOODS AND SERVICES

(a) Provided that Nexperk has notified the Client of such Third Party Terms and provided the Client with a copy of those terms, the Client agrees to any Third Party Terms applicable to any goods or services supplied by a third party that the Client or Nexperk acquires as part of providing the goods or services and Nexperk will not be liable for any loss or damage suffered by the Client in connection with such Third Party Terms.

(b) The Client has the right to reject any Third Party Terms. If the Client rejects the Third Party Terms, Nexperk cannot provide the Services to the Client and clause 15 will apply.

10 CONFIDENTIALITY

(a) Except as contemplated by this Agreement, each party must not, and must not permit any of its officers, employees, agents, contractors or related companies to, use or disclose to any person any confidential information disclosed to it by the other party without its prior written consent.

(b) This clause 10 does not apply to:

(i) information which is generally available to the public (other than as a result of a breach of this Agreement or another obligation of confidence);

(ii) information required to be disclosed by any law; or

(iii) information disclosed by Nexperk to its subcontractors, employees or agents for the purposes of performing the Services or its obligations under this Agreement.

11 INTELLECTUAL PROPERTY

11.1 CLIENT CONTENT

(a) The Client grants to Nexperk (and its subcontractors, employees and agents) a non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use the Client Content to the extent reasonably required to perform any part of the Services.

(b) The Client:

(i) warrants that Nexperk’s use of Client Content as contemplated by this Agreement will not infringe any third-party Intellectual Property Rights; and

(ii) will indemnify Nexperk from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of such infringement or a claim of such an infringement.

11.2 DEVELOPED IP

(a) All Developed IP will be solely and exclusively owned by Nexperk.

(b) Nexperk grants to the Client a non-exclusive, royalty free, non-transferable and revocable licence to use Developed IP to the extent required for the sole purpose of the Client using, enjoying the benefit of or exploiting the Services.

(c) For the avoidance of doubt and for the purposes of this Agreement:

(i) “Non-exclusive” means Nexperk may grant the same rights in the Developed IP to third parties;

(ii) “Royalty free” means the Client may use the Developed IP without paying ongoing royalties or fees to Nexperk (excluding the Fees set out in the Key Agreement Details);

(iii) “Non-transferable” means the Client is not permitted to transfer or assign the rights granted under clause 11.2(b) in respect of the Developed IP to another party; and

(iv) “Revocable” means Nexperk may withdraw its permission to use the Developed IP at any time during or after the Term of this Agreement.

11.3 NEXPERK IP

(a) Nexperk grants to the Client a non-exclusive, royalty free, non-transferable and revocable licence to use Nexperk IP to the extent required for the Client to use, enjoy the benefit of or exploit the Services.

(b) Unless otherwise agreed in writing by Nexperk or in this clause 11.3, the Client will not acquire Intellectual Property Rights in any Nexperk IP under this Agreement or as part of receiving the Services.

11.4 DEFINITIONS

For the purposes of this Agreement:

(a) “Client Content” means any Material supplied by the Client to Nexperk under or in connection with this Agreement, including any Intellectual Property Rights attaching to that Material.

(b) “Nexperk IP” means all Material owned or licensed by Nexperk that is not Developed IP and any Intellectual Property Rights attaching to that Material.

(c) “Developed IP” means the Material produced by Nexperk in the course of providing the Services, either alone or in conjunction with the Client or others, and any Intellectual Property Rights attaching to that Material.

(d) “Intellectual Property Rights” means any and all present and future intellectual and industrial property rights throughout the world (whether registered or unregistered), including copyright, trade marks, designs, patents, moral rights, semiconductor and circuit layout rights, trade, business, company and domain names, and other proprietary rights, trade secrets, know-how, technical data, confidential information and the right to have information kept confidential, or any rights to registration of such rights (including renewal), whether created before or after the date of this Agreement.

(e) “Material” means tangible and intangible information, documents, reports, drawings, designs, software (including source and object code), inventions, concepts, data and other materials in any media whatsoever.

12 WARRANTIES

(a) To the maximum extent permitted by applicable law, all express or implied representations and warranties not expressly stated in this Agreement are excluded.

(b) Nothing in this Agreement is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, you may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services we provide.

13 LIABILITY

13.1 LIABILITY

(a) To the maximum extent permitted by law and subject to clause 13.1(b), the total liability of each party in respect of loss or damage sustained by the other party in connection with this agreement is limited to the amount paid by the Client to Nexperk in the 3 months preceding the date of the event giving rise to the relevant liability.

(b) Clause 13.1(a) does not apply to the Client’s liability in respect of loss or damage sustained by Nexperk arising from the Client’s:

(i) breach of third party intellectual property rights; or

(ii) negligent, wilful, fraudulent, criminal act or omission.

13.2 CONSEQUENTIAL LOSS

To the maximum extent permitted by law, neither party will be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue in connection with this agreement or any goods or services provided by Nexperk, except:

(a) in relation to a party’s liability for fraud, personal injury, death or loss or damage to tangible property; or

(b) to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth).

14 SUBCONTRACTING

Nexperk may subcontract any aspect of providing the Services and the Client hereby consents to such subcontracting.

15 TERMINATION

15.1 TERMINATION FOR CONVENIENCE

(a) Either party may end this Agreement for no reason, by providing notice to the other party.

(b) This agreement will end 10 Business Days after the day the notice is sent (the End Date).

(c) On the End Date, Nexperk will provide an invoice to the Client for:

(i) any Fees for Services already performed up to the End Date (including Services performed to prepare not yet completed deliverables);

(ii) any pre-approved third party costs Nexperk has incurred on the Client’s behalf up to the End Date; and

(iii) if terminated by the Client, Nexperk’s pre-estimated genuine losses as a result of the Client ending this Agreement,

(together, the Outstanding Amounts).

(d) The Client will pay the Outstanding Amounts to Nexperk within a further 10 Business Days after the End Date, unless otherwise agreed in a written payment plan between the parties.

(e) Once the Outstanding Amounts have been paid, Nexperk will hand over any completed deliverables.

(f) If Nexperk terminates this Agreement pursuant to this clause, Nexperk will make reasonable efforts to handover the remaining scope of Services to the Client, so the Client can source an alternative provider.

15.2 TERMINATION FOR BREACH

(a) If a party (the Notifying Party) considers that the other party is in breach of this Agreement (the Breach), the Notifying Party may provide a notice to the other party.

(b) The notice must include the nature and details of the Breach, with reference to the relevant clause/s of this Agreement. The Notifying Party may, if it wishes to do so, make suggestions for resolving the Breach.

(c) The other party will have 10 Business Days (or longer, in the Notifying Party’s discretion) to rectify the Breach (the Rectification Period).

(d) After the Rectification Period, the Notifying Party will:

(i) if the Breach has been successfully rectified, notify the other party that the agreement will continue; or

(ii) if the Breach has not been successfully rectified, notify the other party that this Agreement is terminated (Termination for Breach Notice).

(e) Following a Termination for Breach Notice, the parties will stop all work under this Agreement unless otherwise agreed.

(f) Any disputes regarding termination under this clause must be dealt with in accordance with clause 15. The indemnities, warranties and liability caps in clause 13 will apply to any disputes and resulting claims. Any pre-estimated losses in clause 15.1 will not limit or otherwise effect Nexperk’s rights under this Agreement, at law or otherwise in equity; Nexperk’s losses resulting from the Client’s breach are likely to far exceed its losses resulting from termination for the Client’s convenience.

15.3 OTHER CONSEQUENCES FOR TERMINATION

If this Agreement ends, in addition to the specific consequences set out in clause 15.1 or 15.2 (as applicable), the parties will:

(a) return all property and Confidential Information to the other party;

(b) comply with all obligations that are by their nature intended to survive the end of this Agreement; and

(c) stop using any materials that are no longer owned by, or licensed to, them when this Agreement ends in accordance with clause 11.

16 IF THE PARTIES HAVE A DISPUTE

(a) If an issue between the parties arises under this Agreement that cannot be resolved day-to-day, the parties will make genuine efforts in good faith to participate cooperatively in mediation, at equal shared expense of the parties.

(b) The parties will conduct mediation through the Australian Disputes Centre (ADC) and in accordance with the ADC’s Guidelines for Commercial Mediation (as current at the time of the dispute).

(c) The parties will follow the mediator’s recommendations on the extent of mediation required, and when to stop mediation if the issue cannot be resolved.

(d) If mediation does not resolve the issue, the parties must:

(i) if they haven’t already done so, engage independent legal representation at their own expense to understand the strength of their arguments; and

(ii) based on that advice, if settlement is not achieved, participate in arbitration (or other dispute resolution mechanism agreed in mediation) through the ADC at equal shared expense.

(e) The parties will follow the binding outcome of arbitration (or other agreed mechanism).

(f) Either party may at any time during this process make an offer for settlement. The parties acknowledge and agree it is in their best interests to properly consider all genuine settlement offers. The parties will use best endeavours to avoid litigation and reach a prompt settlement.

(g) The process in this clause does not apply where a party requires an urgent injunction.

17 NOTICES

(a) Any notices required to be sent under this Agreement must be sent via email using the party’s email addresses set out in the Key Agreement Details and the email’s subject heading must refer to the name and date of this Agreement.

(b) If no email address is stated in this Agreement, the notice may be sent to the email address most commonly used by the parties to correspond in relation to this Agreement at the time the notice is sent.

(c) The notice will be considered to be delivered 24 hours after it was sent, unless the sender has reason to believe the email failed to send or was otherwise not delivered or received.

18 FORCE MAJEURE

(a) A ‘Force Majeure Event’ means any occurrence beyond the control of the Affected Party which prevents the Affected Party from performing an obligation under this Agreement (other than an obligation to pay money), including any:

(i) act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;

(ii) strike or other industrial action;

(iii) war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic; or

(iv) decision of a government authority in relation to COVID-19, or other epidemic or pandemic,

to the extent the occurrence affects the Affected Party’s ability to perform the obligation.

(b) If a party (Affected Party) becomes unable, wholly or in part, to carry out an obligation under this Agreement (other than an obligation to pay money) due to a Force Majeure Event, the Affected Party must give to the other party prompt written notice of:

(i) reasonable details of the Force Majeure Event; and

(ii) so far as is known, the probable extent to which the Affected Party will be unable to perform or be delayed in performing its obligation.

(c) Subject to compliance with clause 18(b), the relevant obligation will be suspended during the Force Majeure Event to the extent that the obligation is affected by the Force Majeure Event.

(d) The Affected Party must use its best endeavours to overcome or remove the Force Majeure Event as quickly as possible and resume performing the relevant obligation.

19 GENERAL

19.1 GOVERNING LAW AND JURISDICTION

This agreement is governed by the law applying in New South Wales, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this Agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.

19.2 BUSINESS DAYS

If the day on which any act is to be done under this Agreement is a day other than a Business Day, that act must be done on or by the immediately following Business Day except where this Agreement expressly specifies otherwise.

19.3 AMENDMENTS

This agreement may only be amended in accordance with a written agreement between the parties.

19.4 WAIVER

No party to this Agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.

19.5 SEVERANCE

Any term of this Agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this Agreement is not limited or otherwise affected.

19.6 JOINT AND SEVERAL LIABILITY

An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.

19.7 ASSIGNMENT

A party cannot assign, novate or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other party.

19.8 COUNTERPARTS

This agreement may be executed in any number of counterparts. Each counterpart constitutes an original of this Agreement and all together constitute one agreement.

19.9 COSTS

Except as otherwise provided in this Agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this Agreement.

19.10 ENTIRE AGREEMENT

This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this Agreement.

19.11 INTERPRETATION

(a) (singular and plural) words in the singular includes the plural (and vice versa);

(b) (gender) words indicating a gender includes the corresponding words of any other gender;

(c) (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;

(d) (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;

(e) (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;

(f) (this Agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this Agreement, and a reference to this Agreement includes all schedules, exhibits, attachments and annexures to it;

(g) (document) a reference to a document (including this Agreement) is to that document as varied, novated, ratified or replaced from time to time;

(h) (headings) headings and words in bold type are for convenience only and do not affect interpretation;

(i) (includes) the word “includes” and similar words in any form is not a word of limitation;

(j) (adverse interpretation) no provision of this Agreement will be interpreted adversely to a party because that party was responsible for the preparation of this Agreement or that provision; and

(k) (currency) a reference to $, or “dollar”, is to Australian currency, unless otherwise agreed upon in writing.

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