Terms & Conditions

Trading Terms & Conditions

(General Conditions)

1. Definitions

“Agreement” means these Terms and Conditions. “Confidential Information” includes, but is not limited to, any information that is or includes the terms of this Agreement, marked as confidential; is received or developed by the Customer during the Term, which relates to processes, equipment and techniques, strategies communicated by Business 2iC pursuant to this Agreement including but not limited to all information, data, drawings, specifications, documentation, source or object code, designs, workings, functions, features and performance notes, techniques, concepts, presentations, communications not reduced to material form, agreements with third parties, schematics and proposals and intentions, technical data and marketing information such as customer lists, financial information and business plans, but does not include information which:

(a) is generally available in the public domain otherwise than as a result of a breach of this agreement by the Customer;

(b) was known by the Customer prior to Business 2iC disclosing the information to the Customer; or

(c) the Customer is required by law to disclose. “Customer” means the party specified in Item 2 of the Schedule and where the context requires includes the Customer’s employees, agents, representatives, successors and assigns;

“Force Majeure Event” means any event beyond the reasonable control or foreseeability of a party but does not include events which were or should have been contemplated or were or should have reasonably been foreseen by the party, or circumstances or events contemplated.

“Guarantor” means the person/s specified in Item 3 of the Schedule;

“Intellectual Property” means all form of intellectual property rights throughout the world including but not limited to copyright, registered patent, design, trade mark and confidential information including know-how and trade-secrets.

“Membership Period” means the term that Services will be provided to the Customer as particularised in Item 8 of the Schedule;

“Moral Rights” has the meaning given to it in the Copyright Amendment (Moral Rights) Act 2000 and includes rights of integrity of authorship, rights of attribution of authorship and similar rights that exist or may come to exist anywhere in the world. “Payment Schedule” means the amount and frequency of the invoicing by Business 2iC for the Services set out at Item 7 of the Schedule.

“Price” means the amount particularised at Item 6 of the Schedule.

“Services” means any services purchased by the Customer from Business 2iC as specified at Item 5 of the Schedule;

“Special Conditions” means those conditions contained in Item 9 of the Schedule.

“Works” means all inventions, policies, practices, designs, drawings, plans, software, hardware, reports, documents, systems, improvements and other materials.

“Business 2iC” means Business 2iC ABN 745 228 380 07.

2. Acknowledgement by customer

The Customer acknowledges and agrees that these trading terms and conditions form the integral part of the agreement for the provisions of Services to the Customer. The parties agree that to the extent of any inconsistency, the Special Conditions in this Agreement will prevail over the General Conditions.

3. Price

3.1 The Customer agrees to pay the Price for the Services which shall be paid in accordance with the Payment Schedule.

3.2 The Price must be paid without set off or deduction by the Customer. The Customer further acknowledges that in the event it fails to pay any instalment pursuant to the Payment Schedule

by a period of fourteen (14) days, that the entire unpaid balance of the Price shall become immediately due and payable.

3.3 Business 2iC will issue a Tax Invoice for the Services purchased by the Customer at the times provided for in the Payment Schedule.

4. Payment

4.1 In circumstances where the Customer has paid a deposit in anticipation of this Agreement, upon execution of this Agreement, that deposit shall be applied to the first payment due under the Payment Schedule.

4.2 The Customer agrees to pay the Price strictly in accordance with the instalments and by the dates particularised in the Payment Schedule. Business 2iC must issue a valid Tax Invoice within seven (7) days of receiving any payment due pursuant to this Agreement.

4.3 Failure by the Customer to pay make payment as required by this Agreement shall entitle Business 2iC to:

i. Suspend the continued provision of the Services without incurring any penalty or liability for such suspension; or

ii. Terminate this Agreement; and

iii. Recover the unpaid balance of the price as an appropriate quantification of damages arising from the Customer’s breach of the Agreement.

iv. In the event that that the client fails to make payment of monies owing under this contract, the client shall be liable for all reasonable mercantile agent/debt collection costs and legal costs to recover the monies due.

4.4 Notwithstanding Business 2iC’s rights under clause 4.2, Business 2iC reserves the right to charge interest at the rate which is four (4) percent higher than the rate specified from time to time in the Penalty Interest Rates Act 1983 (Vic), calculated and compounding monthly, on any amount owing by the Customer to Business 2iC from the date the amount was due until the date it is actually paid.

5. Business 2iC’s liabilities for services supplied

The Customer acknowledges and agrees that:

5.1 Business 2iC is not liable to the Customer for any loss suffered by the Customer or any claim made against the Customer as a result of the Customer producing any goods or products from the Service provided to the Customer by Business 2iC.

5.2 To the full extent permitted by, and to the extent it does not contravene The Australian Consumer Law, Business 2iC is not liable to the Customer for any direct, indirect or consequential or contingent loss, liability, cost, damage or expense of whatever nature suffered or incurred by the Customer or any third party from the Services supplied to the Customer and the Customer releases and indemnifies Business 2iC against all loss or damage suffered or incurred by the Customer whether past, present or future.

5.3 No representation

The Customer acknowledges and agrees that, except where specifically otherwise provided, no representation or warranty, expressed or implied, has been made as to the extent of any increase in sales or revenue, or that any other particular results will be achieved as a consequence of provision of the Services to the Customer by Business 2iC, to the extent permitted by law.

5.4 Acceptance of services

To the full extent permitted by law, acceptance of the Services shall occur when the Customer participates in, and receives the content contained within the program of Services in accordance with the description specified in Item 5 of the Schedule. Any Services that have not been rejected by the Customer in writing during the Period specified in Item 8 of the Schedule shall be deemed to have been accepted by the Customer.

6. Force Majeure

Business 2iC is not be responsible to the Customer in any way if it is unable or is delayed in performing its obligations under this Agreement or in the provisions of the Services which is caused or brought about directly or indirectly by a Force Majeure Event or the failure by the Customer to provide Business 2iC with any information or thing Business 2iC requires and has requested from the Customer which is required by Business 2iC in order for it to provide the Services.

7. Assignment

The parties agree that this Agreement is not capable of Assignment without the written consent of Business 2iC of which such consent may be given or withheld by Business 2iC in its absolute discretion.

8. Customer Warranty

8.1 The signatory/ies to this Agreement warrants to Business 2iC that they have the capacity and authorisation to enter into this Agreement and necessary authority to sign on behalf of and to bind the Customer to the terms of this Agreement.

9. Intellectual Property

9.1 All Intellectual Property rights arising from, through or by reason of, directly or indirectly, the provision of the Services including any works created or developed by Business 2iC in the course of their engagement by the Customer (whether alone in conjunction with the Customer) will belong to Business 2iC.

9.2 The Customer agrees that all existing Intellectual Property rights, title and interest in all works created, developed or provided by Business 2iC, including those developed for the Customer, in the course of its engagement by the Customer (whether alone in conjunction with the Customer) are vested in Business 2iC absolutely and upon their creation, all such rights will vest in Business 2iC.

9.3 You agree to execute all documents and do all acts required to secure any Intellectual Property rights for Business 2iC.

9.4 For the benefit of Business 2iC, you consent to any and all acts or omissions of Business 2iC (whether occurring before or after this consent is given) in relation to all works made or to be made by you (whether alone, jointly with Business 2iC or with any other person) in the course of, or in contemplation of, or howsoever associated with the provision of the Services pursuant to this Agreement which may have otherwise infringed your Moral rights in those works.

9.5 You warrant that you have consented without coercion or without relying on any representations other than those set out in this Agreement.

9.6 The Customer must not use any of Business 2iC’s Intellectual Property including copyright, patents, trademarks, logos, designs, know-how and any other type of intellectual property, whether registered or unregistered, which belongs to Business 2iC without the prior written consent of Business 2iC.

10. Confidentiality

10.1 The Customer covenants and agrees that:

i. Is must not disclose any Confidential Information, or permit it to be disclosed, to any persons unless it is required to do so by law, and then only after giving the other party prior written notice;

ii. Limit access to those employees, consultants, agents or contractors reasonably requiring the confidential information on the proviso that the confidentiality of the confidential information is similarly respected by those employees, consultants, agents or contractors in the same manner as provided in this agreement.

11. Indemnity

The Customer fully indemnifies Business 2iC against any loss, liability, cost (legal or otherwise) or expense which is sustained or incurred by Business 2iC as a result of any sum payable by the Customer under this Agreement not being paid when due, and/or any default of the Customer of its obligations arising pursuant to this Agreement. The Customer must on demand by Business 2iC all costs on a full indemnity basis, expenses and other amounts incurred or paid by Business 2iC in connection with the enforcement or attempted enforcement or the preservation of any of its rights under this Agreement or any security or charge including, without limitation, the reasonable internal administration costs of Business 2iC.

12. Termination

12.1 Whenever a party to this Agreement is in default of its obligations (“Defaulting Party”) the other party may (“Non- defaulting Party”), without prejudice to any of its other rights or remedies, give the Defaulting Party a written Notice of Default:

i. Stating that it is a “Notice of Default” given under this Clause specifying the nature of the default or defaults; and

ii. Directing the Defaulting party to;

a. either remedy the default or defaults to the reasonable satisfaction of the Non- Defaulting Party; and/or

b. provide satisfactory written reasons to the absolute and unfettered discretion of the Non-Defaulting party as to why the Non-Defaulting party should not exercise its relevant rights; and

iii. Advising the Defaulting Party that the Non Defaulting Party may exercise its rights under this Clause unless the Defaulting Party has remedied the Default/s in accordance with 12.1(ii) within the time specified in the Notice which must not be less than seven (7) days.

12.2 Either party may immediately terminate this Agreement by notice in writing if: to the Customer the if either party is in default of their obligations hereunder by five (5) days or if a party does not deliver or meet in its obligations under the terms and conditions, a Termination notice can be served on the other party and the entire unpaid balance will become payable.

i. threatens or resolves to wind itself up or to appoint an administrator or liquidator or gives notice of an intention to do so;

ii. has a receiver or a receiver and manager appointed to it;

iii. is placed under administration, liquidation or makes or proposes to make any arrangement with its creditors or becomes bankrupt;

iv. threatens or resolves to declare bankruptcy or to appoint a trustee in bankruptcy or gives notice of an intention to do so;

v. has a judgement debt entered into against it for an amount exceeding $15,000.00 and this is not satisfied by the Customer within 14 days.

12.3. the parties agree that Termination of this agreement will not affect the accrued rights of a party up until the date of termination.

13. Personal Properties Security

Definitions

In this General Condition 13, capitalised expressions which are undefined have the meaning given to them in the Personal Property Securities Act 2009 (Cth). Grantor – is the Customer and vis a vis. Secured Party – is Business 2iC and vis a vis.

Default Event – means a Default Events as described in Clause 10.1 of this Agreement to which the Defaulting party has received a Default Notice pursuant to General Condition 12.1. Contract – means this Contract. Security Interest – a reference in this document to “Security Interest” means the charge created by this General Condition 13.

Collateral means all of the Grantor’s rights, property and undertaking of whatever kind and wherever situated, and whether present or after-acquired, including those of the Grantor’s rights, property and undertakings as are the subject of any Trust, and (where the Grantor is a corporation) the Grantor’s capital (called or uncalled and paid or unpaid) which includes for the avoidance of doubt, but is not limited to, interest in any item of fixed, unfixed and materials for which the Secured Party seeks payment.

Receiver includes a receiver or receiver and manager.

PPSA – means Personal Properties Securities Act 2009 (Cth)

Secured Money – means all amounts payable by the Customer to Business 2iC pursuant to this Contract, including any variation thereof.

i. The Grantor agrees to pay to the Secured Party the Secured Money as and when required pursuant to this Contract.

ii. The Grantor grants to the Secured Party a Security Interest in the Collateral to better secure payment of the Secured Money. This Security Interest is a charge. The Grantor grants the

Security Interest:

(a) In respect of any Collateral that is also Trust Property, as sole trustee of the Trust; and

(b) In respect of all other Collateral, as beneficial owner.

iii. The Grantor consents to the Secured Party registering any one or more Financial Statements or Financing Change Statements in respect of any Security Interest created by or contemplated under this Contract and undertakes to do all things reasonably required by the Secured Party to enable the Secured Party to do so.

iv. The Grantor agrees not to cause (directly or indirectly) the registration of a Financing Change Statement, or the discharge of any registration relating to the Collateral without the Secured Party’s prior written consent.

v. To the extent that any law requires that something must be done (such as obtaining someone else’s consent) before the Grantor may validly grant a Security Interest over any of the Collateral, the Security Interest granted herein only takes effect in relation to that Collateral when that thing required is done. The Grantor agrees to do everything necessary to ensure that it is done promptly.

vi. The Grantor acknowledges in granting this Security Interest and incurring obligations and giving rights under this Contract has received valuable consideration received from the Secured Party.

vii. The Grantor acknowledges that this Contract may be varied from time to time by agreement in writing and signed by the parties, furthermore that the financial obligations of the Grantor may increase or vary by reason of same or any associated Request for Variation. The Grantor confirms that the Secured Money includes any amount payable by the Grantor under this Contract (as may be varied or extended) and applies to any Request for Variation. This applies regardless of:

(a) how the Contract is varied (and the extent to which it is varied) or replaced; and

(b) the reasons for the variation or replacement; and

(c) whether the Secured Money decreases or increases, as a result.

viii. The Secured Party may use money received under this Contract towards paying any part of the Secured Money the Secured Party may choose, including by paying a later invoice/progress payment instalment before an earlier invoice/progress payment and vis a vis. This applies even if that part only falls due after the Secured Party gives a notice of demand.

ix. The Grantor agrees to ensure that no Default Event occurs. The parties further acknowledge and agree that if a Default Event Occurs, the Secured Party shall be able to, in addition to anything else that the law permits the Secured Party to do, appoint one or more Receivers to do anything that set out in Clause xi.(b) below.

x. In the Secured Party exercising its power to appoint a Receiver, the Secured Party may set the Receiver(s) remuneration at any figure the Secured Party considers appropriate, remove a Receiver(s) and appoint a new or additional Receiver(s) and determine whether Receivers are to act individually or jointly.

xi. The parties agree that:

(a) Any Receiver appointed under this document is an agent of the Grantor unless notified otherwise in writing. The Grantor shall be solely responsible for anything done, or not done, by a

Receiver and for their remuneration and costs.

(b) The Receiver shall have the following powers (without limitation), unless the terms of their appointment determine otherwise:

• improve the Collateral;

• sell, transfer or otherwise dispose of the Collateral;

• lease or licence the Collateral, or deal with any existing lease or licence (including allowing a surrender or variation);

• take or give up possession of the Collateral as often as the Receiver chooses;

• sever, remove and sell fixtures attached to the Collateral;

• obtain registration of the Collateral in the Secured Party’s name or any nominee nominated by the Secured Party;

• if the Grantor is not a corporation to which the Corporations Act applies, do anything which the law would allow a Receiver to do if the Grantor were a corporation incorporated (or deemed to be incorporated) under the Corporations Act; and

• do anything else the law allows an owner or a Receiver of the Collateral to do.

(c) if the Secured Party or a Receiver sells or otherwise disposes of any or all of the Collateral:

• the Grantor will not challenge the acquirer’s right to acquire the Collateral (including on the ground that the Secured Party or the Receiver was not, entitled to dispose of the Collateral or that the Grantor did not receive notice of the intended disposal) and the Grantor will not seek to reclaim that property/collateral; and

• the person who acquires the Collateral need not check whether the Secured Party or the Receiver had the right to sell or otherwise dispose of the Collateral or whether the Secured Party or Receiver exercises that right properly.

xii. The Secured Party may enforce this Security Interest before the Secured Party enforces other rights or remedies against someone else, or, under another document, such as another encumbrance. If the Secured Party has more than one Encumbrance/Security Interest, the Secured Party may enforce them in any order it chooses.

xiii. If a claim is made by any party that a transaction (including a payment) in connection with the Secured Money is void or voidable and such claim is upheld, conceded or compromised, then:

(a) The Secured Party is immediately entitled as against the Grantor to the rights in respect of the Secured Money to which the Secured Party was entitled immediately before the transaction; and

(b) Upon request from the Secured Party, the Grantor will do anything (including signing any document) to restore any Encumbrance (including this Security Interest) in favour of the Secured Party which was held, or entitled to be eld, immediately before the transaction.

xiv. The Grantor agrees that to the extent the law permits them to be excluded s142 (‘Entitled persons may redeem collateral’), s143 (‘Entitled persons may reinstate security agreement’) of the PPSA are excluded and the Secured Party need not comply with the following provisions of the PPSA, s95 (‘Secured party must give notice of removal of accession’), s118 (‘Enforcing Security Interests in accordance with land law decisions’), s121(4) (‘Enforcement of Security Interests in liquid assets – notice to higher priority parties and grantor’), s125 (‘Obligation to dispose of or retain collateral’), s130 (‘Notice of disposal of collateral’), s132(3)(d) (‘Secured party to give statement of account’), s132(4) (‘Secured party to give statement of account’) and any other provision of the PPSA and neither the Secured Party nor any Receiver need give any notice required under any provision of the PPSA (except s135 (‘Notice of retention of collateral’)).

xv. The Grantors obligations under this General Condition 13 are continuing obligations, independent of the Grantors other obligations under this document and continue after and survive the full or partial release of property from, or the discharge of, this document.

14. Guarantee

14.1 I/we the Guarantor/s requested Business 2iC to enter into this Agreement with the Customer, and Business 2iC has done so, for the Price and on the terms and conditions as stated in herein. I/we hereby make the following undertakings for ourselves and for our respective assigns, heirs, executors and administrators jointly and severally, in agreement with Business 2iC.

14.2 If at any time the Customer:

i. is late in making any payment to Business 2iC in accordance with this Agreement;

ii. fails to observe and perform any other of the Customer’s obligations in any term or condition of this Agreement;  Then

i. I/we will immediately and unconditionally on demand from Business 2iC, pay Business 2iC any monies that are due and payable by the Customer (including, where applicable, any interest and any GST); and

ii. I/we will keep Business 2iC fully indemnified against the loss of all monies payable under this Agreement, and against all losses, costs and expenses that Business 2iC may incur or suffer as a result of any default by the Customer.

This guarantee and indemnity is a continuing one. It remains in full force and effect until legally discharged, and will not be released inter alia by any of the following:

i. Termination of this Agreement by any party

ii. any delay, neglect or withholding on the part of Business 2iC when enforcing rights against

the Customer under this Agreement

iii. any action by Business 2iC against the Customer to enforce any of Business 2iC’s rights under this Agreement

iv. variations made to the Agreement by agreement between the Customer and Business 2iC, including any variations which increase the liability of the Customer to Business 2iC under this Agreement

v. the Customer being financially unable to proceed with the Agreement , becoming insolvent, being declared bankrupt, making a proposal for a scheme of arrangement or a composition, entering into a deed of company arrangement with creditors, having a controller or administrator appointed, or being wound up

vi. any part of this guarantee or indemnity, or the whole or any part of the Agreement being void, voidable, unenforceable or illegal. If there is more than one guarantor, these undertakings, guarantees and indemnities shall be joint and several.

15. Charge

To secure the payment of the Services and all other monies owing which may at any time be owing pursuant to this Contract, the Customer and Guarantors (Chargors) hereby independently of each other separately charge in favor of Business 2iC all the right to title and interest which the Chargors now have or any time hereafter may have in all and any property (real and personal, freehold and/or leasehold) assets, rights and/or chooses in action. Without in any way limiting all of the rights granted to Business 2iC by such charge aforesaid, the Chargor’s specifically authorises Business 2iC pursuant to such charge to lodge a Caveat or other document under the Transfer of Land Act 1958 (Vic) or such other superseding or similar legislation.

16. Waiver

If a party fails, delays, relaxes or indulges in exercising its power or right under this Deed, this is not a waiver of that power or right. A single exercise of a power or right does not prevent any other or further exercise of it or the exercise of any other power or right under this Deed. A power or right may only be waived if it is in writing and signed by the party to be bound by the waiver.

17. Variation

This agreement may only be amended in writing with the agreement of all parties. For the avoidance of doubt, agreement or consent is not required from a person that was a party but has (at the relevant time) ceased to be a party.

18. Entire Agreement

This Agreement comprises the entire understanding of the parties in connection with its the subject matter and supersedes any prior agreement, arrangement or understanding concerning that subject matter to the extent permitted by law.

19. Severance of invalid provisions

If any provision of these terms and conditions is construed to be invalid or not enforceable, all other provisions which are self-sustaining and capable of separate enforcement without regard to the invalid provision shall be, and continue to be, valid and enforceable in accordance with the terms of these Terms and conditions to the extent permitted by law.

20. Counterparts

This Deed may be executed in any number of counterparts each of which will be taken together to constitute one instrument.

21. Governing Law

These terms and conditions of sale shall be governed by and construed in accordance with the laws of the State of Victoria and the parties irrevocably submit to the non-exclusive jurisdiction of the Courts of that State.