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Nerd Services Terms and Conditions

15 June 2020

Terms of Supply

  1. This agreement applies when we, Nerd Services ABN 22 535 581 039, and its affiliate, Nerd Services Pty Limited (collectively, Nerd Services) supply any of our standard information products and services (Services) to you, our customer. Additional terms will also apply to the various types of information services we supply - those additional terms are set out in a Statement of Works (SOW) for the relevant information services. Our information services include audio visual, commissioning, technical support and consulting services and any services more particularly described in a SOW or other form of agreement. Relevant terms may also be identified in your SOW, Work Order, Fee Estimate or Quote, Onboarding Form, Invoice or by a Fee Schedule.

  2. No modification, amendment or replacement of these general terms is effected by or results from the receipt, acceptance, signing or other acknowledgement by us in response to or in connection with the provision of our information services deemed, by delivering our information services, to have made a counter-offer to provide those to you accept that counter-offer.

  3. If there is any inconsistency between these general terms and a SOW (including any Work Order created for purposes of a SOW, or a schedule, or any attachment, to either of those), the following shall prevail (in descending order) to the extent of that inconsistency and unless stated in the SOW or a Work Order to the contrary: (a)our Privacy Policy, accessible electronically at www.nerdservices.com.au; (b) the Work Order or our Quote; (c) the SOW; and its schedules or attachments, such as a Fee Schedule (if any) or Collection Statement; (d) these general terms; and (e) any Onboarding Form or other document or attachment relating to these general terms.

  4. Our information services are always evolving. We may amend a SOW from time to time to reflect a variation in or clarification of an information service. If the change is likely to have a material detrimental impact on you, the change takes effect 10 business days after we give you notice of the variation; in any other case, the variation has immediate effect. The variation will not affect any order for information accepted from you prior to the variation. Notice may be given to you by update to the relevant SOW.

Supply of Services

  1. We will supply our information services to you after we accept your request for that service under a SOW. We may sub-contract all or part of the information services on terms consistent with all material terms of this agreement or the applicable SOW.

  2. In providing our information services to you, we act as your agent under a limited agency solely for purposes of providing the services in accordance with this agreement. In doing so, our arrangements are of an arm’s-length, commercial nature and we assume no fiduciary obligations to you other than to discharge our obligations in accordance with this agreement and for the proper purpose for which that agency is conferred. In all other respects:(a) we are entitled to act in our own several interests including, without limitation, to supply information services to third parties whose interests may conflict with yours and to retain any commission received from third parties arising from a secondary use of information obtained in the course of providing a service to you; and (b) the parties are independent contractors and nothing in this agreement creates a joint venture, partnership, employment or other fiduciary relationship between the parties. Unless otherwise provided by a SOW, you will retain effective control in accordance with this agreement over any personal information that you contribute for purposes of the information services.

  3. Where we supply our information services to you online, the services are supplied over communication links and other networks, and the availability of the services rely on the availability of those links and networks. While we will do our best to make sure the online information services are available, we are not responsible if the links or networks are unavailable at any time and we do not guarantee that services supplied online will be continuously available. We expect to provide you with standard level also given you a timetable or time estimate for providing any other information service, we will use reasonable endeavours to meet that timetable or time estimate. We will let you know if we require you us tomeet that or timeestimate and seek further agreement fromyou before action isundertaken.

  • the requirements of any law render (or are likely to render) the provision of the information services contrary to that or any other law;

  • any change in data access terms, regulatory policy or the expressed view of a regulator renders (or is likely to render) the provision of the information services contrary to apreviously established regulatory position or the terms of this agreement;

  • a third party enjoins (or threatens to enjoin) our use of anyrelevant Intellectual Property Rights; or

  • a third-party supplier ceases to supply, or changes the terms on which it

  1. Where we cannot continue to provide one or more of the information services under this agreement or the relevant may cease to provide that information service without any further obligation or liabilityaccruing to us.

Term, Termination and Suspension

  1. This agreement begins when we accept your request for an information service and ends when the parties have fulfilled their obligations under it, if not terminated earlier in accordance with clause. EachSOW will normally provide for the duration of your obligation to purchase and our obligation to provide a relevant information service to be stated or otherwise specified by a Work Order, , Quote or other document.

  2. Where a duration is not identified and any of the information services can continue or repeat indefinitely, then either party may end those obligations on 30 days’ notice to the other, unless the SOW or other terms state to the contrary. Where the information service is provided under a period subscription, that subscription automatically renews annually each year for another year (or for that longer or shorter period as expressly agreed, as the case may be), unless and until either of us terminates it at any time on 30 days’ written notice to the other.

  3. In addition to our rights of suspension, cessationand termination under this section, we may withhold, suspend or terminate any of our information services to you immediately:(a) if do notpay our and chargesfor any when due, orbreach this contract;(b) if we reasonably believe you are not complying with any of your other obligations under this agreement or any other agreement you have with an Affiliate of ours, and this non-compliance is not capable of remedy or, if it is capable ofremedy, it not rectifiedwithin 14 after wehave notified of thenon-compliance; or if we reasonably believe that you are not complying with your legal obligations in respect of the information that we supply

  4. If you are a Small Business, you may terminate this agreement by notice to us if we vary:(a) a SOW as d for in this agreement; or (b)our fees and charges (other than by an amount equal to the increase in any tax, fee, levy, government charge or regulatory or legislative cost or statutory fee, or a third party’s data supplier fee comprised in the price for the relevant information service), and you do not wish to accept that variation.

  5. If thisagreement is d or expires, the rights of the parties which may have accrued before the termination or expiry date; or(b) the terms of this agreement or any SOW which by their nature survive termination or expiry, which includes information services, Intellectual Property, Confidential Information, Compensation and Liability, and Privacy

Your use of our information services

  1. You may purchase our information services for the benefit of yourself and any of your aaffiliate may pay us directly for its use of those information services. If you do make our information services available to an affiliate, you:(a) will cause that ffiliate to comply with all terms that apply to you as though it were the party to this agreement; and (b) affiliate (irrespective of whether the relevant act or omission was within your authority, knowledge or control).

  2. You can only use the briefs, designs, technology, data, reports and information we supply for your own internal business use and for the purpose that we supply them for. You must not re-sell, re-package or otherwise re-use our information and services in any other way.

  3. If we deliver reports or information electronically, you can save them onto your system, into another of our information service (where enabled) or print them for your file. If you access our ur reports and information in any other way.

  4. We have copyright in the manner of compilation presentation of the information we use to supply our information services to you and in the briefs, deigns, technology, developments, systems, products, servicesreports that we supply to you when you use our information services. you, and we have copyright, IP rights and other rights in those items. You agree that you will not copy them,

  5. You agree to comply with this agreement and follow any procedures an instructions in documentation as to how to treat certain information. If we change any of our procedures or instructions and we think those changes will affect you, we will let you know in reasonable time allowing for

  6. To access our services by direct link you will need to ensure that your system complies with our most up to date ow direct linking. You are responsible for any system changes you need to make agree tomake those within 6months of notifying youof a version.

  7. You agree to make available to us one contact person within your organisation or one contact for each branch of your organisation (and to notify us if they leave). That person will be responsible for liaising with us about the requirements of this agreement.

  8. You will provide such information, assistance and directions as may be reasonably required to assist us in providing the information services in accordance with the terms of an applicable SOW or Work Order.

  9. You will provide us and our Personnel with such access to yourpremises and facilities as may be reasonably required to allow us to provide the information services applicable SOW, Work Order. You will also ensure that all necessary workplace health, safety and environment and other precautionary measures are taken to protect those Personnel in the discharge of those services.

  10. You agree to keep any username, password or other identifiers we give you to use our information services confidential and secure and to manage your users’ access to our services. You agree that any identifiers we give you will not be transferred between users or disclosed to any third party and you will tell us if they are no longer required. You are responsible for all use of those identifiers. If we ask you to, you agree to stop using

  11. Consistent with our role as your agent under a limited agency solely for purposes of providing our Privacy Law and record retention obligations in respect information used in or arising from those services. For example, where you are an entity a health service and holds health information which you provide to or hold through one or more ensure compliancewith both (Cth) and any law relating to the handling of personal information ( and your local State or Territory Law.

Information we collect from and provide to you

  1. We collect information from you when you request our information servicesou agree to provide any notifications to individuals or obtain any consents that are required under Privacy Law before you request our information services.

  2. We may collect informationfrom you and on your behalf when yourequest our information services. You the quality and accuracy of the information services and data returned to you or to third may rely on the information yousupply to us; and we do not provide any guarantee or warranty as to the accuracy or completeness of any data returned to youor to third parties.

  3. Once you give information to us, we can use that information to supply our information services to you and others as permitted by , and as otherwise permitted by the Privacy Law. You grant to us a non-exclusive, perpetual, irrevocable, transferable, royalty-free licence to use and sublicense the whole or any part of that information for those purposes. You warranthat your of informationand the by usof that in accordancewith this will notinfringe the intellectual property rights or other rights of any person. Because our information services rely on the information we collect, we do not usually remove any information from our systems, subject to our obligations under the Privacy Law or as otherwise imposed by third-party suppliers ordisclosed in a SOW or . Information is updated where it is proven (to our satisfaction) not to be accurate, up to date or complete.

  4. ou agree to make sure that all the information you give us is accurate, up to date, complete and not misleading.

Our charges

  1. Unless otherwise covered by a Quote, invoice or , you must pay usthe fees applicable to the information services under a SOW, plus any other amounts this clause requires, including: any annual or other periodic fee we charge for any of our information services that you use(which may be c in advance);(b) our charges forany information you use,on the we setout in invoice; and(c) GST on our fees and charges.

  2. We will tell you our current fees and charges before you use an information service, by identifying that in our price list accessible through the relevant SOW or in a proposal as part of a Fee Schedule, invoice or Quote. We will send you invoices for all our fees and charges.

  3. Except to the extent governed by a Fee Schedule, you must pay the fees and charges to us: (a) direct in the invoice from time to time; and(b) no later than 30

  4. Payment must be made pay all amounts not so disputed, in which case we will not charge any late fees or collection costs on the disputed amounts. If you require to pay bya merchant ee may apply.

  5. Subject only to a good faith dispute under this clause, if you do not pay us by the due date for payment, we may: (a) require you to pay the whole of the amounts outstanding by you to us, which immediately become due and payable;(b) require you to pay a late payment fee of 1.5% of the amount outstanding at the due date; (c) charge interest on the amount overdue at 2% per month from the due date for payment until the date on which the debt is paid;(d) require you to pay us any costs for agents incurred in recovering money you owe us, including commissions and legal costs on a solicitor-client basis; and/or (e) list information about the default with any credit reporting body.

  6. Except to the extent governed by a Fee Schedule, we may change our fees and charges from time to time upon 30days’ prior notice to you. Our fees and charges may be automatically increased from time to time on shorter notice by an amount equal to the increase in any tax, fee, levy, government charge or regulatory or legislative cost or statutory fee, ora third party’s ier fee, comprised in the price for the relevant information service. Notice our price list

  7. Any outstanding charges for an information service, of that service. Any subscription fees will be payable (in the case of annual subscription fees, on a pro rata basis) up to and including for the full month in which the

  8. You agree to keep confidential the terms and conditions of supply of our services to you, including our fees, charges and pricing arrangements under any Fee Schedule orany other agreement between us, except to the extent that such terms are generally known to the public (other than resulting from comply with the obligations of confidentiality in this agreement).

Intellectual Property

  1. Nothing in this agreement or any SOW transfers ownership of any Intellectual Property Rights. Each party owns, and will continue to own, all Intellectual Property Rights subsisting in any material it provides or makes available to the other party under or in connection with this agreement or any Quote, , Work Order or invoice.

  2. By giving you access to our Technology, we are granting you a royalty-free, non-exclusive license to use our Technology for the purposes of the s made available to you, but only for the ordering, receiving and Technology also comprises our Confidential Information. Any intellectual property created solely vests in us. Any intellectual property created jointly by the parties vests equally in both parties.

  3. Subject to the terms and conditions of this agreement, we also grant you a sub-licensable, non-exclusive, royalty-free licence to use the product of our information services according to the terms of this agreement (including the related SOW and Privacy Law) and this clause survives the end of this agreement for any reason.

  4. You warrant that your provision of data and the use by us of that data in accordance with this agreement will not infringe the Intellectual Property Rights or other rights of any person.

Confidential information

  1. You must not use Confidential Information for any purpose not contemplated by this agreement.

  2. You must not disclose any Confidential Information except: (a) to Personnel within your organisation or other third parties, such as co required to do so by Law or by a stock exchange; or (c) if you are required to do so in connection with legal proceedin

  3. You Personnel or any third parties to which you make disclosure underthis section, as if any such breach was a breach by you.

  4. Unless otherwise agreed by us during discussions regarding our information services or otherwise is disclosed by youon a non-confidential basis and we do not accept on a confidential basis any information(other than personal information), suggestion or idea belonging to you. We will have no liability to you disclose any such information, suggestion or idea, except liability for infringement of any valid patent that may be issued in respect of that material.

  5. acknowledge that unauthorised disclosure or use of Confidential Information may irreparably damage our business in such a way that adequate compensation could not be obtained from damages in an action at Law. Accordingly, an actual or threatened unauthorised disclosure or use of any Confidential Information gives us the right to seek injunctive relief restraining that disclosure or use, in addition to any other remedy otherwise available (including reasonable legal fees).

Compensation and Liability

  1. When we provide the information services to you, we rely on information provided to us by others. While we always aim to provide quality information to you, you understand that we do not independently check all information suppliedto us, the compilationof information our systems,and that may be:(a) inaccurate, incomplete or otherwise of deficient quality; or(b)out of (or may become before you rely on it).

  2. You understand that you are responsible for assessing the value of the information we provide you, and for the business decisions that you make, regardless of whether you base them on the information we supply.

  3. To the extent we can ent we are prohibited by Law from doing so (including under the Consumer Law).

  4. We are not liable to you or to anyone else for:(a) any loss or damage arising out of, or in connection with, the information we provide to you (including loss of profit, revenue or business or indirect, consequential, special or incidental loss or damage); or (b) any indirect or consequential loss or damage arising out of or in connection with this agreement or our information services (including loss of profit, revenue or business or special or incidental loss or damage), however such loss, damage or liability arises or might arise (including in contract, tort (including negligence), under statute or in equity)and even if that loss, damage or liability maybe supposed to have been in the contemplation of the parties as a probable result were it not for this clause. This exclusion does not apply to the extent the Law prohibits us excluding our liability (including under any statutory or implied representation, condition, warranty, term or guarantee that we are unable to exclude by Law).

  5. Our total aggregate liability for any loss or damage not excluded under this section, (less any statutory, third party and/or government charges) in the 12 months not apply to the extent the Law prohibits us limiting our liability (including under any statutory orimplied representation, warranty, termor guarantee we a unable toexclude by

  6. Our total liability for any loss or damage under any statutory or implied representation, condition, warranty, term or guarantee that we are unable to exclude by Law (including under the Consumer Law), is limited to the extent permitted by Law, to us re-supplying the services to you, or, at our option, us refunding to you the amount you have paid us for the information service to which your claim relates.

  7. You indemnify us for any loss we suffer or liability we incur because: (a any informationyou give is notaccurate, up date orcomplete or otherwise misleading;(b) of misuse of, including an intentional wrongful act or omission; (c) Property Rights or other rights of any person arising from (d) of any breach by youof Confidential Information terms, or any breach by your Personnel or a third party of the relevantobligations referred to in that section

  8. You agree to provide us with reasonable co-operation (at your own expense) in the handling of disputes, complaints, investigations or litigation involving a third party, that arise out of your use of our information services. Your co-operation includes but is not limited to providing us in a timely manner with relevant documents, access to relevantemployees or any other reasonable assistance that may be required in dealing with any such matter and may,in some circumstances, involve you being joined as a party to any litigation as well as or instead of us.

Privacy

  1. You agree to comply with Privacy Law (whether it expressly applies to you or not), including in relation to the collection, use, disclosure, quality, storage, security and destruction or de-identification of personal information, and all other Laws that apply to the information that we provide to you, or you provide to us, or to your use of our information services (and to maintain Privacy Law in accordance with section 6EA.

  2. Where we disclose personal information to you (including to any person at your direction) outside Australia, you must: security incident or data bhird party, and provide full details of the data b (c) take all reasonable steps to ensure that any third party complies with this clause in relation to anypersonal information, as if references to you were references to the third party; (d) o-operate with us and promptly provide upon request access to your systems and/or documentation

  3. If we ask you to, you agree to provide us, on not less than business days’ notice, with access to your systems and/or documentation so that we can check your compliance with this agreement, including s. You are not required to provide information to us to the extent that doing so would cause you to breach the confidence of a third party or would cause you to breach Privacy Law.

Dispute resolution

  1. Unless otherwise provided by a SOW or other terms, a party must comply with the following procedure in respect of any dispute arising under this agreement. The party claiming that there is a dispute will send the other party a notice setting out the nature of the dispute and all other material information relevant to the dispute (Dispute Notice).

  2. The parties will try to resolve the dispute through direct negotiation, including by referring the matter to persons who have the authority to interven and to conduct discussions between the parties.

  3. If the parties are unable to resolve the dispute within 2 weeks of the relevant party receiving the Dispute Notice, either party may refer that dispute for resolution by mediation. In Australia, mediation will be administered by the ADC, conducted in private and in Sydney (unless otherwise agreed between the parties), and held in accordancewith the ADC Guidelines for Commercial Mediation. The parties sts of the mediation and will each bear half the costs of the mediator.

General

  1. We may add or withdraw any information service and modify or otherwise change any information service:(a) without notice to you where: (i) because of a change of Law, or any other event outside of our reasonable control; or (ii) to effect administrative or other non-material changes (such as filepath updates or other corrections); and (b) for any reason upon provision to you of not less than 30 days’ notice.

  2. Other than as expressed above such as with respect to fees and charges, we may vary the terms and conditions of this agreement at any time: upon provision to you of notice where this is necessary to comply with Law or because of a change of Law; and (b)for any other reason upon provision of not less than 30 days’ notice to you.

  3. Neither of us is liable for a failure or delay in performing an obligation under this agreement to the extent the failure interruptions.

  4. We will send invoices and notices to either the last postal address,email address or other electronic means. You must tell us if you change any contact details.

  5. You agree you will not transfer your rights or obligations under this agreement to any other person without first getting our written consent. We will not unreasonably withhold our consent. our rights and obligations under thisagreement to an affiliate without your consent, where that will not give rise to any tax liability or otherwise have a material adverse impact foryou.

  6. No delay or failure to exercise a right under this agreement prevents the exercise of that or any other right on that or any other occasion.

  7. All notices to us must be in writing (including electronic form) and sent to the address, email or electronic means in the relevant SOW, Quote or terms.

  8. If any term of this agreement is unlawful and unenforceable, it will be severed from this agreement and the rest of this agreement remains in force.

  9. This agreement supersedes any other agreement you may have with us or an Affiliate for the

  10. These terms (including the terms in any SOW) are governed by the law of New South Wales, andthe parties submit to the jurisdiction of the courts of New South Wales.

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