1 Definitions and interpretation

1.1 Definitions

In this Agreement, the following terms have the meaning given to them below, unless the context requires otherwise:

Agreement means the Service Details, these terms and conditions and the Schedules to these terms;

Agreement Date means the date specified in Item 1 of the Service Details;

Assumptions means the assumptions Overlay AI have made in entering into this Agreement with the Customer as described in Item 9 of the Service Details;

Background means the background details set out in Item 4 of the Service Details;

Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in Adelaide, South Australia;

Business Hours means from 9am to 5pm Australian Central Time on Business Days;

Change of Control occurs when a person acquires Control of an entity;

Claim means any claim, action, proceeding or investigation of any nature or kind and includes the allegation or threat of a claim;

Commencement Date means the date specified in Item 5 of the Service Details;

Concurrent Objects means all Objects the Customer has trained the Platform to identify, excluding those that the Customer subsequently removes from the Platform;

Confidential Information means the terms of this Agreement and all information belonging or relating to a party to this Agreement, whether oral, graphic, electronic, written or in any other form:

(a) that is, or should reasonably be regarded as, confidential to the party to whom it belongs or relates; or

(b) that is not generally available to the public at the time of disclosure other than by reason of a breach of this Agreement;

Consequential Loss means any:

(a) loss of revenue, loss of profit, loss of use, loss of goodwill or reputation, loss of savings, loss of business or opportunity or loss or corruption of data; and

(b) other loss suffered by a party that cannot reasonably be considered to arise naturally from a breach of this Agreement or the events giving rise to the loss;

Control includes the power to directly or indirectly:

(a) dictate the management or policies of the company; or

(b) control the membership of the board of directors,

whether or not the power has statutory, legal or equitable force or is based on statutory, legal or equitable rights, and whether or not it arises by means of trusts, agreements, arrangements, understandings, practices, the ownership of any interest in shares or stock of that party or otherwise;

CPI means the Consumer Price Index, Australia, All Groups, Weighted Average of Eight Capital Cities, published by the Australian Bureau of Statistics and, if that index ceases to be published, an alternative consumer price index nominated by us;

Customer means the entity identified in Item 3 of the Service Details;

Customer Content means any data, information, content or other material which:

(a) is uploaded by the Customer or the Users via the Software Services;

(b) is provided by the Customer or the Users to Overlay AI to upload for access through the Software Services; or

(c) is processed via the Software Services,

but excludes any information, content or material that Overlay AI has provided to the Customer and/or the Users (including the Deliverables and the Overlay Material) and Outputs;

Customer System includes the Customer's entire computer and information technology network and infrastructure (including hardware, software, firmware, communications platforms, cabling and any parts or components of any of the foregoing);

Data Breach means any:

(a) breach of Privacy Laws; or

(b) unauthorised processing, disclosure, use, modification or access, or attempted unauthorised disclosure, use, modification or access, or misuse or loss of, Personal Information;

Defect means any characteristic that makes the whole or any part of the Software Services wholly or partly inoperable;

Deliverables means the Services, the Documentation and the Outputs;

Documentation means any manuals and other materials (whether in printed or electronic format) relevant to the operation of the Platform, including user manuals, programming manuals, modification manuals, flow charts, drawings, instructions and any similar documentation;

Fees means the fees payable to Overlay AI as detailed in Item 10 of the Service Details;

Force Majeure Event means:

(a) natural disasters, acts of terrorism, riots, civil disturbances, pandemics, epidemics, industrial disputes and strikes;

(b) interruption or breakdown in telecommunications networks or the internet that are beyond Overlay AI’s reasonable control; and

(c) any other event which is outside of Overlay AI’s reasonable control;

GST has the meaning in the GST Act;

GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth);

Initial Term means the period set out in Item 6 of the Service Details;

Insolvency Event means, in respect of a party, any one or more of the following events or circumstances:

(a) a winding up, dissolution, liquidation, provisional liquidation, administration or bankruptcy;

(b) that party having a receiver or receiver and user appointed over any of its property or assets, or an administrator, liquidator or provisional liquidator appointed to that party;

(c) being unable to pay any of its debts as and when due and payable or being deemed to be insolvent under any provision of the Corporations Act 2001 (Cth) or any other applicable Law;

(d) seeking protection from its creditors under any applicable Law, entering into a compromise, moratorium, assignment, composition or arrangement with, or for the benefit of, any of its members or creditors; or

(e) any analogous event or circumstance to those described in paragraphs (a) to (d) above under any applicable Law of any jurisdiction,

unless such event or circumstance occurs as part of a solvent reconstruction, amalgamation, compromise, arrangement, merger or consolidation approved by the other party;

Intellectual Property Rights means all statutory and other proprietary rights whether registered or unregistered (including rights to require information be kept confidential) in respect of know-how, trade secrets, copyright, trademarks, design, patent, semiconductor or circuit layout rights and any application for registration or registration of those rights;

Law means any applicable statute, regulation, by-law, ordinance, policy or subordinate legislation in force from time to time, and includes the common law and equity as applicable from time to time, and any mandatory standards or industry codes of conduct;

Level 1 Support means the support services which the Customer will provide to Users and which is described in Schedule 1;

Loss means any loss, damage, liability, charge, expense, outgoing or cost (including all legal and other professional costs on a full indemnity basis) of any nature or kind;

Non-Excludable Guarantee has the meaning given to it in clause 12.7(a);

Notifiable Data Breach means an 'eligible data breach', as that term is defined by the Privacy Act, and any other suspected or actual circumstance that a party is required to notify to a third party under a Privacy Law;

Object means an individual object that the Customer has trained the Platform to identify in a workspace within the Customers business or operations.

Outputs means any data, information, content or other material that is generated from the Customer Content by Overlay AI;

Overlay AI means the entity identified in Item 2 of the Service Details;

Platform means the online AI object recognition platform which provides real time information about a Customer's workspace that Overlay AI makes available to the Customer for use by the Customer and its Users;

Overlay AI Material means any data, information, content or material (including the Documentation) used in providing the Services, or developed by Overlay AI or on behalf of Overlay AI as a result of the provision of the Services, including all software, tools, know-how, equipment or processes, trade marks, logos, designs and other materials;

Password Information means the information required for access to the Software Services;

Permitted Purpose means (i) for Overlay AI to provide the Deliverables and otherwise perform Overlay AI's obligations under this Agreement, (ii) to improve Overlay AI's products and services, (iii) the use, correction, re-ordering and transformation of the Customer Content for the purposes of the creation and use of Outputs, and (iv) such other purposes agreed between the parties from time to time;

Personal Information has the meaning given to it in the Privacy Act;

Personnel means a party’s officers, employees, agents, contractors and subcontractors;

Privacy Act means the Privacy Act 1988 (Cth), including the Australian Privacy Principles;

Privacy Law means in relation a Party:

(a) the Privacy Act;

(b) all other Laws regulating access to or Processing of Personal Information which that Party is required to comply with from time to time; and

(c) all other Laws regulating access to or Processing of Personal information which apply to the other Party and which the other Party has notified in writing to the first mentioned Party;

Processing (or Process) means collection, use, adaption, alteration, storage, transfer, disclosure, or any other handling of Personal Information;

Renewal Term has the meaning given to that term in clause 2(b);

Restrictions means the restrictions on use of the Software Services by the Customer and the Users, as set out in Item 11 of the Service Details;

Scheduled Outages means any outage of the Software Services which Overlay AI notify the Customer of in advance of the outage;

Service Details means the service details set out in the table at the front of this Agreement;

Services means all services provided by Overlay AI to the Customer under this Agreement as described in Item 7, including the Software Services and the Support Services;

Software Services means the services described in Item 7 of the Service Details;

Special Conditions means those terms, if any, in Item 13 of the Service Details.

Support Services means the maintenance and support services which are described in Schedule 1;

Term means the Initial Term and all extensions under clause 2(b), unless terminated earlier in accordance with its terms; and

Users means the Customer's Personnel who access and use the Software Services.

1.2 Interpretation

In this Agreement (unless the context requires otherwise):

(a) headings are used for convenience only and do not affect the interpretation of this Agreement;

(b) other grammatical forms of defined words or expressions have corresponding meanings;

(c) a reference to a party is to a party to this Agreement;

(d) a reference to a party to a document includes the party's executors, administrators, successors and permitted assigns and substitutes;

(e) if something is required to be done on a day that is not a Business Day, then it must be done on the next Business Day;

(f) the word "person" includes a natural person, partnership, body corporate, association, governmental or local authority, agency and any other body or entity whether incorporated or not;

(g) "includes", "including", "for example", "such as" and similar terms are not words of limitation; and

(h) if there is an inconsistency between the Service Details (including the Special Conditions) and these terms and conditions, the Service Details prevail to the extent of the inconsistency.

2 Term

(a) This Agreement commences on the Commencement Date and continues for the Initial Term (unless extended or terminated in accordance with its terms).

(b) At the end of the Initial Term, this Agreement will automatically extend for successive periods of [12 months] each on the existing terms and conditions (each a Renewal Term), unless either party notifies the other party in writing at least [90 days] prior to the end of a Renewal Term that it wishes for the Agreement not to extend for another Renewal Term (in which event the Agreement will expire at the end of the then-current Renewal Term).

3 Services

3.1 General

(a) Overlay AI agrees to supply the Services and associated Documentation to the Customer, and the Customer agrees to acquire them from Overlay AI, at the prices and on the terms of this Agreement.

(b) The supply of the Services is subject to the Restrictions and the Assumptions.

3.2 Implementation

(a) Overlay AI will promptly implement the Platform ready for use and access by the Customer and the Users as part of the Software Services after the Commencement Date.

(b) The Customer must work with Overlay AI promptly and in good faith (including by providing all information and assistance Overlay AI requests) to allow Overlay to complete the creation and set up of the Customer's access to the Platform, as scheduled by Overlay AI.

(c) Overlay AI will notify the Customer when the Platform is ready for use by the Customer and the Users.

(d) Access to the Platform will be via a website.

(e) Each of the Customer's Users will be assigned the Password Information to enable them to access the Platform.

3.3 Software Services

(a) The Software Services are supplied to the Customer on a non-exclusive and non-transferable basis.

(b) Overlay AI will provide the Software Services with due care and skill, but does not guarantee that they will be continuous or fault free.

(c) Overlay AI will use reasonable efforts to ensure the Software Services are available during Business Hours. However, the Software Services may be unavailable to permit maintenance or other development activity to take place, or if a Force Majeure Event occurs. Overlay AI will notify the Customer via email in advance (if possible) of any unavailability. (d) The Software Services may interoperate with a range of third party service features. Overlay AI does not make any warranty or representation on the availability of those features.

(e) The Customer's access to the Software Services is only permitted through the Platform and only as a non-perpetual ongoing fee based solution. Failure to pay the required fees by the required dates may result in restrictions on the Customer's use of the Software Services.

3.4 Maintenance and support

(a) Subject to the Customer performing the Level 1 Support, Overlay AI will provide the Support Services to the Customer.

(b) From time to time, the Software Services will be unavailable due to maintenance. Reasonable endeavours will be taken to program Scheduled Outages so as to limit their impact on the Customer's business.

(c) The Customer acknowledges that Software Services may be interrupted by factors beyond Overlay AI's direct control and that Overlay AI will have no liability for such Software Service interruptions.

3.5 Other services

From time to time, the Customer may request that Overlay AI provide additional services. If Overlay AI agrees to do so, Overlay AI may charge the Customer additional fees which will be based on Overlay AI (or Overlay AI's third party supplier's) then current rates and charges. Additional terms and conditions may also apply. Overlay AI will provide all relevant information, including terms and costs, in a written proposal to the Customer.

4 Modifications and updates

(a) Overlay AI may modify or update the Software Services, at any time during the Term, by giving the Customer prior reasonable notice.

(b) If, in the Customer's reasonable opinion, a modification or update has a material and adverse impact on the features and functionalities of the Software Services, the Customer may terminate this Agreement, provided the Customer gives Overlay AI written notice of such termination within 5 Business Days of the implementation of the relevant modification or update.

5 Security

5.1 Passwords

(a) Overlay AI will provide the Password Information to the Customer to allow the Customer and its Users to access the Software Services.

(b) The Customer must only provide Password Information and permit access to and use of the Software Services by Users in accordance with the applicable Restrictions.

(c) Only a User who has been granted the Password Information directly by the Customer may access and use the Software Services.

(d) The Customer and each User must maintain the security and secrecy of the Password Information.

(e) The Customer and each User must not permit any other person to access, use or modify the Software Services by using the Password Information.

5.2 Third party content

The Software Services may link to third party websites or feeds which are connected or relevant to the Software Services. The availability of any link from the Software Services does not imply that Overlay AI endorses, approves, recommends, or accepts responsibility for, those websites or feeds, or their content or operators. To the maximum extent permitted by Law, Overlay AI excludes all responsibility and liability for those websites and feeds.

6 Customer obligations

6.1 General

Without limiting the Customer's other obligations under this Agreement, the Customer:

(a) must provide Overlay AI with all information, material and assistance requested by Overlay to enable Overlay AI to provide the Services to the Customer;

(b) must, and must ensure that the Users use the Software Services in accordance with the Documentation and Overlay AI's directions from time-to-time;

(c) must, and must ensure that the Users, comply with the Restrictions and all applicable Laws when using the Deliverables;

(d) must obtain or procure all necessary rights to use the Customer Content and associated data that will be used in connection with the Software Services and to enable Overlay AI to perform the Services;

(e) must ensure that the Customer System complies with the relevant specifications notified by Overlay AI from time to time;

(f) must not undermine the operation, security and integrity of the information technology infrastructure in which Overlay AI deploys the Platform, including by introducing any virus, malicious code or other similar item in the Platform;

(g) must not, and must ensure that Users do not, use the Platform in any way that may impair the ability of other Overlay AI customers to use the Platform;

(h) must not, and must ensure that Users do not, use the Platform to view, access or copy any material or data other than that which the Customer and the Users are expressly authorised to access;

(i) must not, and must ensure that the Users do not, access or use the Deliverables for the purpose of creating a product or service which competes with the Software Services;

(j) must not resell, resupply or share the Deliverables, except as expressly permitted under this Agreement;

(k) must not permit third parties to access or use the Deliverables, except as authorised by Overlay AI in writing;

(l) is solely responsible for selecting, supplying and maintaining facilities and equipment (including Customer Systems and access to the internet) for use in connection with the Software Services; and

(m) is solely responsible for any use of the Deliverables by the Customer or any third party (including the Customer's Users), whether authorised or not.

7 Fees and payments

7.1 Fees and payments

(a) The Customer must pay Overlay AI the Fees set out in this Agreement for the Services.

(b) Unless otherwise stipulated, the Fees do not include GST and the Customer must pay applicable GST in addition to the Fees.

(c) The Fees will be billed at the time specified in the Service Details.

(d) The Customer must pay all amounts payable to Overlay AI under this Agreement within [30 days] of the date of invoice or as otherwise notified by Overlay AI in writing.

(e) If a genuine dispute arises regarding the amount of a Fee, the Customer may suspend payment of the disputed amount pending resolution of the dispute but the Customer must pay all other amounts in accordance with this clause 7.

(f) Overlay AI may charge the Customer interest (calculated on a daily basis) on any unpaid amount overdue by more than 14 days at:

(i) the rate of two percent (2%) per annum above the published current lending rate for business overdrafts specified by the bank that Overlay AI ordinarily use for business purposes; or

(ii) a comparable rate nominated by Overlay AI from time to time.

7.2 Audit rights

(a) From time to time Overlay AI may require an audit of relevant records to verify the Customer's accurate disclosure of any information which is required to enable the calculation of Fees payable to Overlay AI (including the User Record) and to verify the Customer and its User's compliance with other obligations under this Agreement.

(b) The audit may be conducted by Overlay AI's Personnel and/or third parties engaged by Overlay AI to assist with the audit.

(c) The Customer will provide access to and provide copies of any information required in connection with the audit and will ensure that all other relevant parties also provide access to and copies of information required for the purposes of the audit.

(d) If the audit reveals that the Customer has underpaid Fees or identifies any other non-compliance with this Agreement, then the Customer must:

(i) promptly pay any underpayment of Fees to Overlay AI together with interest, calculated in accordance with clause 7.1(f);

(ii) remedy any other non-compliance with those obligations; and

(iii) pay Overlay AI an amount equivalent to the costs Overlay AI has incurred in connection with the conduct of the audit.

8 Pricing and terms variations

(a) The Fees are based on the Assumptions which are set out in the Service Details. If, at any time during the Term, Overlay AI determines (in its reasonable discretion) that the Assumptions are incorrect in any respect, Overlay AI may increase the Fees to cover any increase in Overlay AI's costs of performing the Services due to the Assumption being incorrect by giving the Customer no less than [4 weeks] notice.

(b) Overlay AI may in its discretion review and increase fees in line with CPI movement, provided that such increases are not made more than annually.

(c) Overlay AI may amend the Restrictions at any time during the Term, if Overlay AI are required to do so by any third party supplier or by Law.

9 GST

(a) If one party (in this clause 9, the supplying party) makes a taxable supply and the consideration for that supply does not expressly include GST, the party that is liable to provide the GST-exclusive consideration (in this clause 9, the receiving party) must also pay an amount (in this clause 9, the GST amount) equal to the GST payable in respect of that supply.

(b) Subject to first receiving a tax invoice or adjustment note as appropriate, the receiving party must pay the GST amount when it is liable to provide the GST-exclusive consideration.

(c) In this Agreement terms used that are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (in this clause 9(c), the GST Act) have the meaning given in the GST Act, unless the context makes it clear that a different meaning is intended.

10 Content ownership

(a) Overlay AI acknowledges and agrees that all rights, title and interest in and to the Customer Content will at all times remain owned by the Customer or the licensors of that Customer Content.

(b) The Customer represents and warrants that it and its Users will only upload and use Customer Content where permitted, duly licensed and authorised by any relevant third parties to do so.

(c) The Customer grants to Overlay AI a worldwide, non-exclusive, non-transferable perpetual licence to (i) use, adapt, modify, reproduce, reformat, transform and process the Customer Content for the Permitted Purpose and (ii) to use any Intellectual Property Rights in the Customer Content, to the extent necessary to undertake such activities.

(d) The Customer acknowledges that it is solely responsible for ensuring the accuracy and completeness of Customer Content uploaded to the Platform by it or its Users.

(e) The Customer is responsible for backing up all Customer Content uploaded to the Platform.

(f) The Customer acknowledges that Customer Content may be stored by a third party hosting service provider [located in Australia/overseas].

(g) If the Customer wishes to extract Customer Content from the Platform, it must notify Overlay AI in writing at least [4 weeks] in advance. Overlay AI, at its sole discretion, may extract the requested Customer Content from the Platform. Extraction of Customer Content from the Platform under this subclause will be treated as a Support Service and may be subject to additional fees and charges.

(h) If the Customer requires Overlay AI's assistance with respect to the extraction of any Customer Content, then this will be treated as a Support Service and may be subject to additional fees and charges.

(i) Nothing in these terms and conditions will inhibit the Customer's right to continue to use and deal with any Customer Content uploaded to the Platform by the Customer or its Users for the purpose of the Customer's usual business activities.

(j) All Outputs (and the Intellectual Property Rights in the Outputs) will be owned by Overlay AI.

11 Intellectual Property Rights

11.1 Ownership

(a) The Customer agrees that Overlay AI and/or Overlay AI 's licensors own all Intellectual Property Rights in the Deliverables and the Overlay AI Materials, including all improvements, developments, changes, modifications or updates made to the Deliverables and the Overlay AI Materials (in this clause 11, the Proprietary IP). Except as expressly granted under this Agreement, nothing in this Agreement transfers ownership (or otherwise grants the Customer or its Users any right) in respect of the Proprietary IP.

(b) The Customer must not (and ensure its Users do not) do, omit to do, attempt to do, or allow anyone to do anything which infringes the Proprietary IP, including:

(i) copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit or distribute any part or all of the Deliverables and/or the Overlay AI Materials (as applicable) in any form or media or by any means; or

(ii) decompile, disassemble, reverse engineer or otherwise reduce to human-perceivable form any part or all of the Software Services,

except:

(iii) as expressly permitted by non-excludable Laws; or

(iv) with Overlay AI's prior written consent.

11.2 Feedback

If the Customer provides Overlay AI with ideas, comments or suggestions relating to the Deliverables (in this clause 11.2, the Feedback):

(a) all Intellectual Property Rights in the Feedback and anything created as a result of that Feedback (including materials, enhancements, modifications or derivative works) will be owned by Overlay AI and/or Overlay AI's licensors (at Overlay AI Pty’s Ltd's election) on creation; and

(b) Overlay AI may use or disclose the Feedback for any purpose.

11.3 Further actions

The Customer agrees to execute all documentation necessary in order to give effect to clauses 11.1(a) and 11.2, and (if

applicable) to cause Users to execute such documentation.

12 Liability

12.1 Mutual Warranties

Each party warrants that it has full power to enter into and perform its obligations under this Agreement.

12.2 Customer Warranties

The Customer warrants and represents to Overlay AI that:

(a) Overlay AI's use of any information or other materials provided by the Customer will not infringe the rights (including the Intellectual Property Rights) of any third party or contravene any law; and

(b) it will not use the Deliverables in a manner that infringes the rights (including the Intellectual Property Rights) of any third party.

12.3 Exclusion of Warranties

Subject to clause 12.7 below, to the maximum extent permitted by Law, Overlay AI does not warrant that:

(a) the Software Services or the Platform will meet the Customer's requirements or be suitable for a particular purpose, including that the use of the Software Services will fulfil or meet any statutory role or responsibility;

(b) the Software Services or the Platform will operate free of errors, defects or in an uninterrupted manner; or

(c) the Software Services or the Platform is compatible or will interoperate with any particular computer system, equipment, software (including operating systems) or data format.

12.4 Implied terms

Subject to clause 12.7 below, to the maximum extent permitted by Law, all representations, warranties, conditions, guarantees, indemnities or undertakings that would be implied in, or affect, this Agreement by legislation, common law, tort, equity, or by course of performance, dealing, trade, custom or usage are excluded.

12.5 Liability cap

Subject to clause 12.7 below, to the maximum extent permitted by Law, Overlay AI's total aggregate liability to the Customer in respect of all Claims arising under or in connection with this Agreement, whether in contract, statute, tort (including negligence), equity or otherwise, is limited to all amounts paid and payable by the Customer during the Initial Term under this Agreement

12.6 Limitation of Liability

Subject to clause 12.6 and 12.7 below, to the maximum extent permitted by Law, Overlay AI is not liable to the Customer or any other person for:

(a) defects, errors, service interruption, failure or delay in respect of or caused by any Software Services; or

(b) any special, indirect or Consequential Loss incurred or suffered by the Customer under or in connection with this Agreement (whether arising under contract, in tort (including negligence) or otherwise), irrespective of whether the Customer previously notified Overlay AI of the possibility of such Loss.

12.7 Unlimited Liability

Clauses 12.4 does not apply to limit Overlay AI's liability to the Customer under or in connection with this Agreement for:

(a) personal injury or death;

(b) fraud or wilful misconduct; or

(c) any other liability that cannot be excluded or limited by any Law.

12.8 Non-Excludable Guarantee

(a) Nothing in this Agreement excludes, restricts or modifies any consumer guarantee, right or remedy conferred on the Customer by the Australian Consumer Law contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth) or any other applicable Law that cannot be excluded, restricted or modified by agreement (Non-Excludable Guarantee).

(b) To the maximum extent permitted by law, Overlay AI's liability for breach of a Non-Excludable Guarantee is limited, at Overlay AI's option, to: (a) in the case of goods, any one or more of the following: (i) the replacement of the goods or the supply of equivalent goods; (ii) the repair of the goods; (iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or (iv) the payment of the cost of having the goods repaired; or (b) in the case of services: (i) the supplying of the services again; or (ii) the payment of the cost of having the services supplied again.

13 Indemnity

The Customer indemnifies Overlay AI against all Claims and Losses suffered or incurred by Overlay AI that are caused by or arise from:

(a) use of the Software Services by the Customer or its Users in a manner contrary to this Agreement;

(b) any breach of this Agreement by the Customer or its Users; or

(c) any negligent or unlawful act or omission by the Customer or its Users,

except to the extent such Claim or Loss was caused or contributed to by Overlay or its Personnel.

14 Termination

14.1 Termination for breach

Overlay AI may terminate this Agreement immediately by giving the Customer written notice if the Customer:

(a) is the subject of an Insolvency Event; or

(b) breaches this Agreement and:

(i) the breach is incapable of remedy; or

(ii) the Customer fails to remedy the breach within [20 Business Days] of receiving notice requiring it to do so.

14.2 Consequences of termination

If this Agreement expires or is terminated for any reason:

(a) the Customer and its Users must immediately cease using the Deliverables and all rights of the Customer and its Users to use the Deliverables cease;

(b) the Customer must immediately pay Overlay AI all outstanding fees by the due date stated in the relevant invoice or otherwise within [14 days] of termination or expiry of this Agreement;

(c) except to the extent that a party has ongoing rights to use Confidential Information, each party must deliver to the other party all Confidential Information of that party in its possession or control (or if requested by the other party, destroy it);

(d) at any time prior to 20 Business Days after the date of termination or expiry, the Customer may request:

(i) a copy of any Customer Content stored using the Software Services, provided that the Customer pays Overlay AI reasonable costs of providing that copy of the Content. On receipt of that request, Overlay AI will provide the Customer with a copy of the Customer Content in a common electronic form. Overlay AI does not warrant that the format of the Customer Content will be compatible with software; and/or

(ii) that Overlay AI deletes the Customer Content stored using the Software Services, in which Overlay will use reasonable efforts to promptly delete that Customer Content, to avoid doubt, Overlay AI is not required to comply with clause 14.2(d)(i) to the extent that Overlay has previously been asked by the Customer to delete the Customer Content under clause 14.2(d)(ii); and

(e) all rights that a party has accrued before termination continue.

14.3 Other remedies

The termination of this Agreement is without prejudice to either party's rights under this Agreement or at Law.

15 Suspension

(a) Overlay AI may suspend the supply or performance of the Services at any time without notice to the Customer:

(i) if the Customer is subject to an Insolvency Event;

(ii) if the Customer fails to pay any amount due to Overlay AI under this Agreement when due; or

(iii) if Overlay AI reasonably suspects that the Customer or any of the Users are in breach of their obligations under this Agreement.

(b) To the maximum extent permitted by Law, Overlay AI excludes all liability to the Customer if Overlay AI suspends the Services under this clause 15. (c) The suspension of the Services under this clause 15 may continue until Overlay AI notifies the Customer that Overlay AI has received full payment of the overdue amount or otherwise has rectified the breach of this Agreement to Overlay AI's satisfaction.

16 Privacy

16.1 General

(a) The Customer acknowledges and agrees that Overlay AI may collect Personal Information of the Customer and its Users. The Customer consents to Overlay AI Processing Personal Information of the Customer and its Users for the purposes of fulfilling its obligations under this Agreement and providing the Services and Deliverables.

(b) To the extent the Customer obtains any Personal Information from Overlay AI, the Customer must (and must ensure its Users) Process such information in accordance with the Privacy Law (whether or not the Customer and/or its Users are bound by it).

(c) The Customer warrants and represents to Overlay AI that the Customer and its Users have complied (and will continue to comply) with all Privacy Laws (whether or not they are bound by them at Law), including by making such disclosures and procuring such consents as are required under Privacy Laws, when collecting and disclosing Personal Information to Overlay AI in order to ensure that Overlay AI complies with and does not breach its obligations under Privacy Laws and to ensure Overlay AI is able to perform its obligations under this Agreement and Process Personal Information in accordance with Overlay AI's privacy policy (as published on Overlay AI's website and updated from time to time).

(d) The Customer must:

(i) not, and it warrants and represents to Overlay AI that it will not, Process or otherwise do or omit to do anything (including by its Users) in relation to Personal Information that would cause Overlay AI to contravene any Privacy Law;

(ii) not do or omit to do anything (including by its Users) that causes a Data Breach involving Personal Information in connection with this Agreement;

(iii) cooperate with Overlay AI to resolve any complaint or inquiry made under any Privacy Law, or in relation to any request for access to Personal Information;

(iv) notify Overlay AI immediately if the Customer or any of its Users become aware of any breach or potential breach of its obligations under this clause, provide any details in relation to the breach requested by Overlay AI; and without limiting any of Overlay AI's rights under this Agreement, immediately comply with any reasonable direction from Overlay AI with respect to remedying that breach.

16.2 Notifiable Data Breach

In the event that Overlay AI has reasonable grounds to suspect or believe that a Data Breach is a Notifiable Data Breach, then, to the extent permitted by Law, Overlay AI may by written notice to the Customer:

(a) assume control of any assessment, remedial action, preparation of a statement and/or notification processes required under the applicable Privacy Law in respect of that Notifiable Data Breach; and

(b) require the Customer and the Users not to undertake such assessment, remedial action, preparation of a statement and/or notification and to instead rely on the steps taken by Overlay AI in connection with those actions in accordance with the relevant provisions in the applicable Privacy Law.

17 Confidentiality

Each party must:

(a) keep the other party's Confidential Information confidential and not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the prior written approval of the other party;

(b) take all reasonable steps to secure and keep secure all of the other party's Confidential Information coming into its possession or control; and

(c) not deliberately memorise, use, modify, reverse engineer or make copies, notes or records of the other party's Confidential Information for any purpose other than in connection with the performance of its obligations under this Agreement.

18 Dispute resolution

18.1 Notice of dispute

(a) Each party must follow the procedures in this clause 18 before starting court proceedings (except for urgent injunctive or declaratory relief).

(b) A party claiming that a dispute has arisen must give written notice to the other party specifying the nature of the dispute.

(c) If the parties cannot resolve the dispute within [10 Business Days] after notice has been given under clause 18.1(b) above, the dispute must be referred to the chief executive officers of each party or their respective nominees (in this clause 18, the Chief Executive Officers) for resolution.

18.2 Mediation

(a) If the Chief Executive Officers cannot resolve the dispute within [10 Business Days] after referral under clause 18.1(c) above, the parties may agree to refer the dispute for mediation to be conducted by the Australian Disputes Centre.

(b) If the parties do not agree to undergo mediation or mediation does not resolve the dispute, either party may commence legal proceedings.

18.3 Costs of disputes

(a) For the purposes of this clause 18, where more than one matter is in dispute, the amount involved in each matter in dispute must be separately assessed and the amounts will not be aggregated.

(b) The costs of the mediator are to be borne equally by the parties. (c) Subject to clause 18.3(b), each party must pay its own internal and legal costs in relation to complying with this clause 18. (d) Nothing in this clause 18 prevents a party from commencing and prosecuting any application for urgent injunctive or other interlocutory relief.

(e) Notwithstanding the existence of a dispute, each party must continue to perform its obligations under this Agreement.

19 Notices

(a) All notices and consents must be in writing and sent to the addresses specified in the Service Details, or as otherwise agreed.

(b) Notices sent:

(i) by hand, are taken to be received when delivered;

(ii) by post, are taken to be received by the third Business Day after posting, notwithstanding that a notice may be returned through the post office unclaimed; or

(iii) by email, are taken to be received at the time of confirmation of sending (except where the sender receives an automated message indicating that the email was not su

20 Force majeure

(a) Overlay AI shall not be liable for any loss or claim arising from any delay or failure by Overlay AI to perform its obligations under this Agreement where such delay or failure is the result of a Force Majeure Event.

(b) If Overlay AI is unable to perform or is delayed in performing an obligation under this Agreement (other than an obligation to pay money) because of a Force Majeure Event, that obligation is suspended but only so far and for so long as it is affected by the Force Majeure Event.

21 Change of Control

(a) A Change of Control of the Customer will constitute an assignment requiring Overlay AI's prior written consent.

(b) Overlay AI will not unreasonably withhold its consent to an assignment of this Agreement to a related company or successor company operating the same business.

(c) The Customer must notify Overlay AI as soon as practicable of any proposed Change of Control or transfer of the Customer's business to which this Agreement relates.

22 General

(a) This Agreement is the entire agreement between the parties in relation to its subject matter.

(b) Overlay AI may subcontract any part or all of the Services. Where Overlay AI chooses to do so, Overlay AI remains responsible to the Customer for the performance of the Services by Overlay AI's subcontractors as if those services were being performed by Overlay AI.

(c) This Agreement cannot be varied except by written agreement between the parties.

(d) The Customer must not assign this Agreement or any of its rights and/or obligations under this Agreement without Overlay AI's prior written consent, including by way of Change of Control in which case clause 21 will apply. If Overlay AI does not consent to any such assignment, then this Agreement must continue on its current terms.

(e) This Agreement is governed by the Laws of the State of South Australia and the parties submit to the exclusive jurisdiction of the courts of that State.

(f) If any clause or part of a clause is held by a court to be invalid or unenforceable:

(i) that clause or part of a clause is to be regarded as having been deleted from this Agreement; and

(ii) this Agreement otherwise remains in full force and effect.

(g) A party may only waive its rights under this Agreement by a clear statement in writing. Any failure by a party to exercise a right or insist on strict performance of any obligation under this Agreement shall not constitute a waiver.

(h) If this Agreement consists of a number of counterparts, each is an original and all of the counterparts together constitute the same document.

(i) A party may sign electronically a soft copy of this Agreement by electronic means, and bind itself accordingly. This will satisfy any statutory or other requirements for this Agreement to be in writing and signed by that party. The parties intend that:

(i) any soft copy so signed will constitute an executed original counterpart, and any print-out of the copy with the relevant signatures appearing will constitute an executed original counterpart; and

(ii) where a party prints out this document after all parties that are signing electronically have done so, the first print-out by that party after all signatories who are signing through electronic means will also be an executed original of this Agreement. Each signatory confirms that their signature appearing in the Agreement, including any such print-out (irrespective of which party printed it), is their personal signature authenticating it. (j) This clause 22 and clauses 6 (Customer obligations), 11 (Intellectual Property Rights), 12 (Liability), 13 (Indemnity), 14 (Termination), 16 (Privacy) and 17 (Confidentiality) survive the termination or expiry of this Agreement, as well as all other clauses which by their nature should survive the termination or expiry of this Agreement.

(k) Nothing in this Agreement (whether express or implied) is intended to create or constitute a relationship of partnership, agency, employment, trustee or other fiduciary relationship between the parties. It is the intention of the parties that any such relationship is expressly denied