FIREHAWK CRM FOR FUNERALS TERMS OF USE

THIS MASTER SUBSCRIPTION AGREEMENT GOVERNS CUSTOMER’S ACQUISITION AND USE OF FIREHAWKCRM SERVICES. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN.

IF CUSTOMER REGISTERS FOR A FREE TRIAL OF FIREHAWKCRM SERVICES OR FOR FREE SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL OR THOSE FREE SERVICES.

BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR (3) USING FIREHAWKCRM SERVICES, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” AND “USER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

FIREHAWKCRM’s direct competitors are prohibited from accessing the Services, except with FIREHAWK’s prior written consent. In addition, the Services may not be accessed for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

This Agreement was last updated on 6th March 2019. It is effective between Customer and FIREHAWKCRM as of the date of Customer’s accepting this Agreement.

Parties

FireHawk Systems Pty Ltd trading as FireHawkCRM 79 620 266 962 of 2/100 Victoria Street, Taree NSW 2430 (the System Provider).

Your Funeral Home and employees thereunder (the System User)

The System Provider (hereon in known as “Provider”) is agreeable to providing such services to the System User on the terms and conditions set out in this Agreement. 

The System User (hereon in known as “User”) is of the opinion that the Provider has the necessary qualifications, experience and abilities to provide the FireHawkCRM System (hereon in known as the “System”) and support to the User.

The User wishes to use the System on the terms provided within this Agreement for use within the User’s Funeral Home. 

The System is used not sold and remains the property of the Provider. 

In Consideration of the matters described above and of the mutual benefits and obligations set forth in this Agreement, the receipt and sufficiency of which consideration is herby acknowledged, the Provider and the User (individually the “Party” and collectively the “Parties” to this Agreement) agree as follows:

 

Definitions

Provider – means FireHawk Systems Pty Ltd trading as FireHawkCRM ACN 620 266 962;

User – means the person or organisation to whom the use of the System is provided hereunder;

System – means any product of or relating to the FireHawk Client Relationship Management Platform also known as FireHawkCRM which is the subject of this Agreement, including without limitation (unless the context otherwise requires) any upgrade from time to time applied to the System.

Services – supply and maintain the System or repair work to the System. 

Agreement – means a negotiated and binding arrangement between two parties.

Term – means a fixed or limited period.

Payment – an amount paid or payable for services or goods rendered. 

Confidential Information – means the information must be identifiable, have some form of originality and not import public knowledge.

Intellectual Property – means proprietary knowledge or creative ideas.

Funeral Credit – a credit will allow you to convert an Enquiry to an ‘At Need’, ‘Pre Need’ or ‘Transfer’. All credits including any credits or bundles purchased in advance are non-refundable upon purchase. 

 

 

Services Provided

The User hereby engages the Provider to provide the following Services (the “Services”): 

        1. To provide access to the System and all of its capabilities for use within the User’s funeral home; 
        2. Also support services associated with above mentioned System where communication and, queries or concerns are delivered via Slack App Technologies. 
        3. The services may also include any other digital, marketing or graphic tasks which the Parties may agree on separately. The Provider agrees to provide such Services to the User. 

Term of Agreement

        1. The term of the Agreement (the “Term”) will begin on the date of this agreement and will remain in full force and effect indefinitely until terminated as provided in this Agreement.
        2. In the event that either Party wishes to terminate this Agreement, that party will be required to provide thirty (30) days’ written notice to the other Party. 
        3. This agreement may be terminated at any time by mutual agreement of the Parties. 
        4. Except as otherwise provided in this Agreement, the obligations of the Provider will end upon the termination of this Agreement. 

Performance

The Parties agree to do everything necessary to ensure that the terms of this Agreement take effect.

Currency

Except as otherwise provided in this Agreement, all monetary amounts referred to in the Agreement are in AUD (Australian Dollars).

Payment

The Provider will charge the User for Funeral or Transfer Credits to be utilised within the System as follows (the “Payment”):

        1. All Enquiry additions to the System are free of charge and will only convert to a chargeable credit when converted to an ‘At Need’, ‘Pre Need’ or ‘Transfer’ within the System. 
        2. Funeral Credits will be charged at twenty dollars ($20.00 AUD) per credit use. This amount will increase by 3% per year rounded up or down to the nearest dollar. Discounted Credit bundles are available. All credits including any credits or bundles purchased in advance are non-refundable upon purchase. 
        3. Transfer, Cremation and Burial Credits will be charged at five dollars ($5.00 AUD) per credit use. This amount will increase by 3% per year rounded up or down to the nearest dollar. All credits including any credits or bundles purchased in advance are non-refundable upon purchase. 
        4. Credits have to be purchased in advance by the User and credits will be not be added to the System until the payment has been receipted into the Providers bank account.
        5. Payments can be made to the Provider via Direct Deposit or Credit Card facilities on the System. Credits purchased via Credit Card will be instant approval, Credits purchased via Direct Deposit will be subject to clearing time. 

Confidentiality

        1. Confidential information (the “Confidential Information”) refers to any data or information relating to the business of the User which would reasonable be considered to be proprietary to the User including, but not limited to, accounting records, business processes, and client records and that is not generally known in the User’s Industry and where the release of that Confidential Information could reasonably be expected to cause harm to the User. 
        2. The Provider agrees that they will not disclose, divulge, reveal, report or use, for any purpose, and Confidential Information which the User has obtained, except as authorised by the User or as required by law. The obligations of confidentiality will apply during the term of this Agreement and will survive indefinitely upon termination of this Agreement. 
        3. All written and oral information and material disclosed or provided by the client to the Provider under this Agreement is Confidential Information regardless of whether it was provided before or after the date of the Agreement or how it was provided to the Provider.
        4. If a Party breaches any of its obligations with respect to confidentiality and unauthorised use of Confidential Information hereunder, the non-breaching party shall be entitled to equitable relief to protect its interest therein, including but not limited to injunctive relief, as well as money damages notwithstanding anything to the contrary contained herein. 
        5. The provisions of this clause shall survive termination of this Agreement.  

Ownership and Proprietary Rights of Intellectual Property

All Intellectual Property and related material (the “Intellectual Property”) that is developed or produced under this agreement, will be the property of the Provider. The User is granted non-exclusive limited-use of this intellectual property. Any Intellectual Property produced during the course of this Agreement may not be modified, reverse-engineered or de-compiled in any manner through current or future available technologies. 

Title, copyright, Intellectual Property rights and distribution of the Intellectual Property remain exclusively with the Provider. Intellectual property rights include the look and feel of any System produced.  

System User Obligations

      1. The User shall maintain a system of controls that will: 
          1. protect the integrity of the System; 
          2. control access to the System by third parties; 
          3. prevent unauthorised usage of the System; and 
          4. ensure that the amount of usage of the System is accurately recorded.
      2. The User also recognises that the System is the proprietary and confidential property of the Provider. Accordingly, the User shall not, during the term of this Agreement, disclose or reveal to any third party or utilise for its own benefit other than pursuant to this Agreement, any such technology provided by the Provider concerning the System. 
      3. The User further agrees to take all reasonable precautions to preserve the confidentiality of the System and shall assume responsibility that its employees, and assignees will similarly preserve this information against third Parties. 
      4. Any use of the System not expressly authorised in this Agreement is strictly prohibited. 
      5. The provisions of this clause shall survive termination of this Agreement.

System Provider Obligations

The Provider will supply the User with the System as described. The Provider reserves the right to withhold updates of the System in the event that the User should be in material default of this Agreement. We agree to 95% service uptime in a 31 day period

The Provider shall rectify all reproducible faults in the System for which the Provider is responsible when reported by the User within a reasonable period. 

      1. The User shall report the fault to the Provider in writing via the Slack Application (preferred method) or Email without undue delay. 
      2. The User shall describe the defect in as much detail as possible. 
      3. The Provider can opt to rectify the problem by debugging, providing new System build or showing how to avoid the effects of the fault. 
      4. The User shall accept a new System build unless this causes them unreasonable modification and switching problems. 

 

Return of Property

Upon the expiry or termination of this Agreement, the Provider will return any property, documentation, records, or Confidential Information which is the property of the User. 

Termination

The following termination rights are in addition to the termination rights which may be provided elsewhere in the Agreement:

      1. Right to Terminate Upon Notice – Either Party may terminate this Agreement on thirty (30) days’ written notice to the other party in the event of a breach of any provision of this Agreement by the other Party, provided that, during the 30-day period, the breaching Party fails to cure such breach.
      2. The User Right to Terminate – The User shall have the right to terminate this Agreement at any time upon one months’ written notice to the Provider for any reason in which case its unused credits become non-refundable. 
      3. The termination must be in writing and signed by the User or a person duly authorised by the User.
      4. Any materials must be delivered to the intended recipient by post, by hand or by email 

Notices

All notices, requests, demands or other communications required or permitted by the terms of this Agreement will be given in writing and delivered to the Parties by hand, post or via email.

Warranties and Obligations 

      1. The Provider warrants and represents that it has the necessary power and authority to enter into and perform its obligations under this Agreement and to grant the User ability to use the System; and that the Provider has no actual knowledge that the System infringes upon any copyright, patent, trademark or proprietary right (collectively “Intellectual Property Rights”) of any third party.
      2. Except for those warranties previously set forth above, the System is provided on an “AS IS” basis without guarantee, and the Provider does not guarantee that the System will meet the User’s requirements; that it will operate in the combinations, or in the equipment, selected by the User; or that its operation will be error-free or without interruption. 
      3. The User warrants and represents that it has the necessary power and authority to enter into and perform its obligations under this Agreement; and that the User has no actual knowledge that its Service and associated trademarks infringe upon any Intellectual Property Rights of any third party.

Indemnification 

Except to the extent paid in settlement from any applicable insurance policies, and to the extent permitted by applicable law, each Party agrees to indemnify and hold harmless the other Party, and its respective directors, shareholders, affiliates, officers, agents, employees, and permitted successors against any and all claims, losses, damages, liabilities, penalties, punitive damages, expenses, reasonable legal fees and costs of any kind or amount whatsoever, which result from or arise out of any act or omission of the indemnifying party, its respective directors, shareholders, affiliates, officers, agents, employees, and permitted successors and assigns that occurs in connection with this Agreement. This indemnification will survive the termination of this Agreement. 

Relationship of parties 

This Agreement does not create a joint venture or partnership between the Provider and the User, and each will act independently of the other. Neither party is empowered to bind or commit the other to any contract or other obligation.

Entire agreement

This Agreement contains the entire agreement between the Parties as at the date of this Agreement with respect to its subject matter and supersedes all prior agreements and understandings between the Parties in connection with it.

Amendment

This Agreement may be amended only by another agreement executed by both Parties. 

Neither Party may assign this Agreement or the rights and obligations thereunder to any third party without the prior express written approval of the other Party which shall not be unreasonably withheld.

Waiver

A failure to exercise or a delay in exercising any right, power or remedy under this Agreement does not operate as a waiver. A single or partial exercise or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the Party granting that waiver unless made in writing.

Titles and Headings

Headings are inserted for the convenience of the Parties only and are not to be considered when interpreting this Agreement. 

Gender

Words in the singular mean and include the plural and vice versa. Words in the masculine mean and include feminine and vice versa.

Force Majeure 

Neither party will be liable for, or will be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such Party’s reasonable control and that such Party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimise the impact of the event.

Remedies cumulative

The rights, powers and remedies provided to a Party in this Agreement are in addition to, and do not exclude or limit, any right, power or remedy provided by law or equity or any agreement.

Governing law and compliance 

This Agreement is governed by the laws of New South Wales and each Party irrevocably and unconditionally submits to the non-exclusive jurisdiction of courts exercising jurisdiction there.

Severability

In the event that any of the provisions of this Agreement are held to be invalid or unenforceable in whole or in part, all other provisions will nevertheless continue to be valid and enforceable with the invalid or unenforceable parts severed from the remainder of this Agreement.  

Costs and duty

Each party must bear its own costs arising out of the negotiation, preparation and execution of this Agreement.

Counterparts

This Agreement may be executed in any number of counterparts. All counterparts together will be taken to constitute one instrument.

Mediation 

All Parties agree to enter into mediation before the outset of any legal proceedings.

FIREHAWK DIGITAL TERMS & CONDITIONS

Please see below the standard terms and conditions for Firehawk Systems Pty Ltd (trading as Firehawk Digital). It is important that you (The Client), read and understand these terms and conditions prior to engaging Firehawk Digital for any services. These terms and conditions may change from time to time without notice. If you would like clarification on any point in these terms and conditions, please contact Firehawk Digital prior to work commencing.

COMMENCEMENT OF WORK

Agreement to work with Firehawk Digital and payment of deposit constitutes agreement to these terms and conditions.

PAYMENT TERMS

Prior to commencement of work, The Client agrees to pay to Firehawk Digital an amount equal to 50% of the total quoted price. This deposit is non-refundable once Firehawk Digital has allocated time, resources and/or  research on the project. Firehawk Digital prides itself on meeting and exceeding client expectations and will take all reasonable steps to ensure the project is delivered to expectations on time and on budget. If The Client has a change of mind once work has commenced, The Client acknowledges the deposit is also non-refundable.

The balance of funds is payable to Firehawk Digital prior to final delivery of the product or service.

CONTENT RESPONSIBILITY

It is the responsibility of The Client to provide within a reasonable timeframe, any content required by Firehawk Digital for the completion of the project. This includes, but not limited to logos, photos, artworks, testimonials, login details and word content.

TERMS OF SERVICE

1. DEFINITIONS

In this Agreement, unless the contrary intention appears:

1.1 Additional Charges mean a charge in accordance with Firehawk Digital’s standard fees, or where applicable third party fee schedules, for additional work not set out in the Scope of Services document.

1.2 Agreement means this Services Agreement and includes a Scope of Services document and any other annexure.

1.3 Authorised Representative means you or your staff member nominated in a Scope of Services document, empowered to act on your behalf.

1.4 Charges mean the fees payable by you to us for the Services set out in a Scope of Services document.

1.5 Client means you, as named in the Parties section of this Agreement.

1.6 Commencement Date means the date specified in a Scope of Services document.

1.7 Confidential Information means the confidential information of a Party, which relates to the subject matter of this Agreement and includes:

1.7.1 confidential information relating to the design and operation of the Deliverables and to the Project Services;

1.7.2 confidential information relating to you and your clientele;

1.7.3 information relating to our personnel, business strategies, policies, procedures, documentation, methods and clientele; and

1.7.4 information relating to the terms of this Agreement.

1.8 Core Technology means any proprietary technology and object and source codes created by Firehawk Digital in providing the Services, which have been used or embodied in the Deliverables.

1.9 Deliverables means the outcomes to be achieved under a Scope of Services document and any technology and applications specifically created for the Client, including object and source codes and look and feel of the deliverables pursuant to the Scope of Services document, but excluding any Core Technology.

1.10 Expected Completion Date means the date the Services are expected to be completed by, as set out in the Scope of Services document.

1.11 Insolvency Event means bankruptcy, administration, compromise, arrangement, amalgamation, reconstruction, winding up, dissolution and assignment for or compromise with creditors, and ‘Insolvent’ will be construed accordingly.

1.12 Intellectual Property Rights means:

 

1.12.1 patents, copyright, registered and unregistered design rights, registered and unregistered trade marks, rights in know-how and confidential information and all other intellectual property rights (without limitation);

1.12.2 all similar or analogous rights existing under the laws of any country; and

1.12.3 all rights to apply for or register such rights

created by or in relation to the Deliverables and Services or arising out of the performance of the Services and Deliverables.

1.13 Party means either Firehawk or the Client.

1.14 Scope of Services means a document incorporated into this Agreement and which sets out the specific services to be supplied to you by us.

1.15 Services means the services described in a Scope of Services document and supplied pursuant to this Agreement.

1.16 Start Date means the date that this Agreement is executed by the Parties.

2. SCOPE OF THIS AGREEMENT

    1. This Agreement is used where we supply you with the Services in return for the Charges.
    1. We provide the Services to you on the terms and conditions set out in this Agreement, or otherwise varied by a Scope of Services document.
    1. After we receive a request from you for the Services, you agree to complete and be bound by a Scope of Services document in respect of those services.
    1. If there is any inconsistency between this Agreement and a Scope of Services document, the terms of this Agreement will prevail, unless the Scope of Services document specifies otherwise.
  1. TERM

This Agreement shall commence on the Start Date and shall continue in perpetuity unless terminated in accordance with clause 12 of this Agreement.

  1. ENGAGEMENT OF FIREHAWK

4.1 Firehawk will provide the Services upon the terms and conditions set out in this Agreement and the applicable Scope of Services document.

4.2 Firehawk will use our reasonable efforts to commence the Services on the Commencement Date and to complete the Services by the Expected Completion Date. However, you acknowledge that these timeframes are estimated dates only.

4.3 Subject to otherwise complying with our obligations under this Agreement, we will exercise our independent discretion as to the most appropriate and effective manner of providing the Services and of satisfying your expectations of those Services.

4.4 Firehawk may sub-contract the performance of some or all of our obligations under this Agreement.

5. CLIENT OBLIGATIONS

5.1 You agree to nominate a staff member as your Authorised Representative and that person will be responsible for providing us with, on your behalf, instruction, information and material.

5.2 Your Authorised Representative will approve and sign project documentation on your behalf.

5.3 You must, at all times, comply with our payment terms in respect of your payment of the Charges.

 

6. ACCEPTANCE

Any instructions received from you for the supply of the Services will constitute acceptance of the terms and conditions set out in this Agreement.

7. CHARGES

7.1 You agree to pay the Charges within the payment terms specified in a Scope of Services document.

7.2 We may invoice you and you agree to pay all disbursements, including stock photography charges and other disbursements as they are incurred.

7.3 We may invoice you and agree to pay all Additional Charges as a consequence of any work to be carried out by us, which is in addition to the work contained in the Scope of Services document.

7.4 We may require that you pay to us an up-front deposit for work to be carried out under the Scope of Services document.

7.5 Final payment for the Services will be due prior to a website or App (included in the Deliverables) going ‘live’ to the public.

7.6 If payment is not effected within 14 days of the due date, Firehawk Digital may, at its absolute discretion, charge interest on the overdue amount at an interest rate equal to 10%. Such charges will be calculated on a monthly basis beginning on the day following the due date of payment. Firehawk Digital may, at its absolute discretion, charge other reasonable costs in relation to recovering overdue payments.

7.7 If you dispute the whole or any portion of the amount claimed in an invoice submitted by us, you agree to pay the portion of the amount stated in the invoice, which is not in dispute and will notify us in writing (within seven (7) days of receipt of the invoice) of the reasons for disputing the remainder of the invoice. If it is resolved that some or all of the amount in dispute should have been paid at the time it was first invoiced, then you agree to pay the amount finally resolved together with interest on that amount in accordance with the terms of payment set out in this Agreement.

7.8 You agree that all work carried out by Firehawk Digital pursuant to the Scope of Services document remain the property of Firehawk Digital until all Charges have been paid.

7.9 The Charges are inclusive of GST.

7.10 You agree to make payment of the Charges in accordance with any payment methods stated on any tax invoice that we may issue you with from time to time. You will be notified of any additional charges and/or fees associated with any payment methods prior to payment.

8. WARRANTIES

8.1 Firehawk Digital warrants to you, to the best of its knowledge that no literary software or other works used or created by Firehawk Digital in the provision of the Services will infringe any third party intellectual property rights.

8.2 To the extent permitted by any relevant legislation, we do not make any warranty in relation to the quality or suitability with respect to the Services.

8.3 Firehawk Digital will use its best efforts, techniques and accepted standards in performing the Services.

8.5 You warrant that any content that you provide to us in order for us to perform the Services belongs to you (or is under licence by you) and that you will not be infringing any third party intellectual property rights as a consequence of using that content.

9. LIABILITY OF FIREHAWK DIGITAL

    1. The parties expressly exclude all terms, representations and warranties that may be implied by law in connection with this Agreement or the provision of Services except to the extent those terms, representations or warranties may not be lawfully excluded.
    1. If any legislation implies in this Agreement any term or warranty and also prohibits provisions in a contract, excluding or modifying the application of or exercise of, or liability under, that term or warranty, is deemed to be included in this Agreement.

9.3 Firehawk Digital expressly excludes liability for:

9.3.1 indirect, special, incidental, or consequential loss or damage which may arise in respect of this Agreement, or the provision of Services, their use, or in respect of other equipment or property; and

      1. loss of profit, business, revenue, goodwill or anticipated savings.

9.4 If any legislation or law implies into this Agreement any term or warranty and also prohibits provisions in a contract excluding the application of or exercise of that term or warranty then, to the maximum extent permitted by law, the liability of Firehawk Digital for a breach of such a term or warranty will be limited, at option, to any one or more of the following:

      1. the supplying of the services again; or
      1. the payment of the cost of having the services supplied again.

9.5 To the maximum extent permitted by law, if for any reason Firehawk Digital is directly or indirectly liable to you in respect of any Services, the maximum aggregate liability of Firehawk Digital in respect of all claims made by you will be the Charges in respect of those Services.

10. INTELLECTUAL PROPERTY

10.1 Client’s Intellectual Property

In consideration of the Client paying the Charges to Firehawk Digital, it is agreed that the Client will own all of the Intellectual Property Rights created in the course of Firehawk Digital providing the Services, or which may arise from the provision of Services that relate to the Scope of Services document.

10.2 Firehawk Digital’s Intellectual Property

Firehawk Digital agrees to grant the Client a royalty-free and perpetual licence to use the Core Technology for the explicit use of the Client continuing to develop and maintain the Deliverables. Firehawk Digital agrees to make no claim to the Client for financial benefit for use of the Core Technology during the term, or at any time after the termination of this Agreement providing the Core Technology is used solely in respect of the Deliverables.

10.3 Client’s breach of Firehawk Digital’s Intellectual Property Rights

If you disclose the Core Technology to third parties for financial gain then Firehawk Digital may pursue all their rights at law for a breach of its Intellectual Property Rights under this Agreement.

10.3 Use of Intellectual Property by Firehawk Digital

You authorise Firehawk Digital to use free of any charge any intellectual property created by us and pursuant to the Scope of Services document for the purpose of promoting the Firehawk Digital business.

11. DEFAULT

If a Party:

(a) defaults in its obligations under this Agreement which is, or has, become essential; or

(b) fails to comply with any of the warranties, guarantees, conditions and agreements of a material nature and on the part of the party to be observed and performed under this Agreement,

in addition to any other rights which may be conferred upon it at law the non-defaulting Party may:

(a) give the defaulting Party 14 days written notice to rectify the default. If the defaulting Party does not rectify the default within the 14 days from the date the notice was sent by the non-defaulting Party, then the non-defaulting Party may elect to terminate this Agreement; and

(b) upon termination the non-defaulting Party may sue the defaulting Party for damages for breach of this Agreement.

12. TERMINATION

12.1 Either party may terminate this Agreement by providing thirty (30) days written notice to the other party.  In the event of such termination, the Client shall promptly pay all amounts owed to Firehawk Digital up to and including the effective date of termination, including any future non-cancellable commitments after the termination date.

12.2 Without limiting the generality of any other clause in this Agreement, either party may terminate this Agreement immediately by notice in writing if:

      1. a party breaches any material term of this Agreement which is not capable of remedy;
      1. a party breaches any clause of this Agreement and such breach is not remedied within 30 days of written notice to the other party; or
      1. a party becomes, threatens or is in jeopardy of suffering an Insolvency Event.

13. GENERAL PROVISIONS

13.1 Alterations

This Agreement may be altered only in writing signed by each party.

13.2 Invalid or unenforceable provisions

If a provision of this Agreement is invalid or unenforceable in a jurisdiction:

    1. it is read down or severed in that jurisdiction to the extent of the invalidity or unenforceability; and
    1. it does not affect the validity or enforceability of:
      1. that provision in another jurisdiction; or
      1. the remaining provisions.

13.3 Survival

Any indemnity or any obligation of confidence under this Agreement is independent and survives termination of this Agreement.  Any other term by its nature intended to survive termination of this Agreement survives termination of this Agreement.

13.4 Counterparts

This Agreement may be executed in counterparts.  All executed counterparts constitute one document.

13.5 No merger

The rights and obligations of the parties under this Agreement do not merge on completion of any transaction contemplated by this Agreement.

13.6 Entire Agreement

This Agreement constitutes the entire agreement between the parties in connection with its subject matter and supersedes all previous agreements or understandings between the parties in connection with its subject matter.

13.7 Further action

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

13.8 Waiver

13.8.1 The failure of a party at any time to require performance of any obligation under this Agreement is not a waiver of that party’s right:

  1. to claim damages for breach of that obligation; and
  1. at any other time to require performance of that or any other obligation under this Agreement, unless written notice to that effect is given to the other party.
      1. A waiver of any provision of or right under this Agreement:
  1. must be in writing signed by the party entitled to the benefit of that provision or right; and
  1. is effective only to the extent set out in any written waiver.

14. GOVERNING LAW

The laws of New South Wales govern this Agreement.