1.1 This Agreement governs your use of the Platform and Content during the Term.
1.2 The Customer agrees to issue a Purchase Order for the Original Fees for the duration of the Term.
1.3 You are deemed to have accepted this Agreement by executing a Purchase Order and/or Change Order that references this Agreement.
1.4 The Customer agrees to subscribe to the Platform and Content for the duration of the Term and Invigor agrees to provide the Customer with access to the Platform and Content on the following terms and conditions.
2.1 Invigor will:
(a) make the Platform and Content available to the Customer pursuant to this Agreement, the Schedule of Services in the Purchase Order and any applicable Change Orders;
(b) provide new versions and upgrades for the Platform to the Customer at no additional charge, as and when such new versions and upgrades become available;
(c) maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Platform and Content;
(d) be responsible for the performance of Invigor’s personnel (including Invigor’s employees and contractors) and their compliance with Invigor’s obligations under this Agreement, except as otherwise specified herein;
(e) not materially decrease the functionality of the Platform during a subscription term;
(f) use commercially reasonable efforts to ensure the Platform and Content are accessible in accordance with applicable service levels.
2.2 If Invigor is required by a licensor or third-party to remove Content, Invigor will notify the Customer, and in such event the Customer must promptly remove such Content from the Customer’s systems. If the Customer does not take required action in accordance with the above, Invigor may disable the applicable Content and or Service until the potential violation is resolved.
2.3 From time to time, Invigor may invite the Customer to try Beta Platforms at no charge. The Customer may accept or decline any such trial in its sole discretion. Beta Platforms will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Platforms are for evaluation purposes and not for production use, are not considered a “Platform” under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any Beta Platform trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Platforms becomes generally available. Invigor may discontinue Beta Platforms at any time in Invigor’s sole discretion and may never make them generally available. Invigor will have no liability for any harm or damage arising out of or in connection with a Beta Platform.
3.1 Unless otherwise provided in a Change Order:
(a) the Content is provided solely for research purposes;
(b) subscriptions for additional Modules, Users and Categories may be added during the Term and such price will be prorated for the portion of the Term remaining at the time the subscriptions are added; and
(c) any added subscriptions will terminate on the same date as the underlying subscriptions.
3.2 The Customer’s access to the Platform and Content are subject to the following usage limits:
(a) the Platform or Content must not be accessed by more than the number of Users;
(b) a User’s password must not be shared with any other individual or entity; and
(c) a User’s identification may be reassigned to a new individual replacing one who no longer requires ongoing use of the Platform or Content.
(d) Invigor will, from time to time, monitor the Users’ access of the Customer’s Platform to ensure compliance with this clause 3.2.
3.3 The Customer must not:
(a) make the Platform or Content available to, or use the Platform or Content for the benefit of, anyone other than the Customer or Users;
(b) sell, resell, license, sublicense, distribute, rent or lease the Platform or Content, or include the Platform or Content in a service bureau or outsourcing offering, including to any Affiliate of the Customer;
(c) interfere with or disrupt the integrity or performance of the Platform or third-party data contained therein;
(d) attempt to gain unauthorised access to the Platform or Content or its related systems or networks;
(e) permit direct or indirect access to or use of the Platform or Content in a way that circumvents a contractual usage limit;
(f) copy the Platform or any part, feature, function or user interface thereof;
(g) copy Content except as permitted herein;
(h) frame or mirror any part of the Platform or Content, other than framing on the Customer’s own intranets or otherwise for the Customer’s own internal business purposes or as permitted in this Agreement;
(i) access the Platform or Content in order to build a competitive product or service;
(j) access the Platform for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes;
(k) access the Platform if you are a direct competitor of Invigor; or
(l) reverse engineer the Platform (to the extent such restriction is permitted by law).
3.4 The Customer is responsible for:
(a) each Users’ compliance with this Agreement;
(b) the accuracy, quality and legality of any data supplied by the Customer;
(c) using commercially reasonable efforts to prevent unauthorised access to or use of Platform and Content, and notify Invigor promptly of any such unauthorised access or use; and
(d) the use of the Platform and Content in accordance with applicable laws and government regulations.
3.5 If the Customer wishes to make bespoke modifications to the Platform or Content, receive professional services, custom reports or additional content that is not currently being provided, such modifications are to be made by a Change Order.
3.6 If Invigor makes bespoke modifications for the Customer under clause 3.5, Invigor is free to provide such modifications for other Customers, on terms to be decided by Invigor in its sole discretion.
3.7 Invigor strives to ensure the most up to date information is provided to the Customer through the provision of the Platform and associated Content. However, Invigor has no liability to the Customer in respect of any information that may be relevant to the Platform or Content which is in the public forum or otherwise, but was not ultimately included in the Platform or Content provided to the Customer.
3.8 The Customer acknowledges and agrees that the subscription to the Platform or Content is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Invigor or its officers or employees, regarding future functionality or features of the Platform or Content.
4.1 The Customer must pay all Fees contemplated by applicable Purchase Orders or any Change Orders on the specified date(s).
4.2 Invigor will issue the Customer with an invoice for the Fees and payment is due within 30 days of receipt of a valid tax invoice.
4.3 During the Term, the Customer may increase or decrease the number of Modules or Categories subscribed to, but only if the Fees do not fall below the Original Fees.
4.4 The annual fee contemplated by the Fees will increase by 3% each year for the duration of the Term to account for inflation.
4.5 For the avoidance of doubt:
(a) Fees are based on the Platform categories selected and not actual usage by the Customer or any Users; and
(b) payment obligations are non-cancellable and Fees paid are non-refundable.
4.6 The Customer must pay all amounts billed. Late payments will attract an administration fee equal to 2% per month. No credit terms are given to credit card accounts. Upon registration of a credit card account, the Customer gives Invigor authorisation to debit the Customer credit card plus a 2% surcharge for all charges in accordance with the Purchase Order.
4.7 The Customer authorises Invigor to obtain from, and give to credit reporting agencies and other credit providers certain information about the Customer so that Invigor may manage the Customer account. Invigor reserves the right to refuse the Customer’s application for services, monitor ongoing usage of, or restrict access to the Platform or Content on the basis of Invigor’s assessment of credit information relating to the Customer. The Customer is entitled to see and correct any credit information that Invigor holds in relation to the Customer.
4.8 The Customer authorises Invigor to exchange information about the Customer and the Customer account with Invigor to Invigor’s suppliers, agents and contractors or any third parties, and use that information for account management and business planning.
4.9 No refunds will be given for unused portions of payments in advance unless the account has been terminated due to Invigor's breach of this Agreement.
4.10 The Customer is responsible for providing complete and accurate billing and contact information to Invigor and notifying Invigor of any changes to such information.
4.11 If any invoiced amount is not received by Invigor by the due date, then without limiting Invigor’s rights or remedies, Invigor may:
(a) immediately suspend the Customer’s and User’s access to the Platform and Content until all amounts outstanding are paid in full; and/or
(b) condition future subscription renewals and Change Orders on payment terms shorter than those specified in clause 4.1.
5.1 All amounts payable under this Agreement are expressed exclusive of GST.
5.2 All money payable to Invigor by the Customer under this Agreement must be paid unconditionally and in full without any set-off, counterclaim or other deduction or withholding. If a deduction or withholding is required by law, the Customer will give details in the relevant annual statement and will also give Invigor official receipts and any other documents providing evidence of a deduction or withholding, at Invigor’s reasonable request.
6.1 Subject to the limited rights expressly granted hereunder, Invigor and Invigor’s licensors (as applicable) reserve all rights, title and interest in and to the Platform and Content, including all of the related Intellectual Property rights. Nothing in this Agreement is intended to convey any ownership of the Platform or any Intellectual Property used in the Platform or provision of Content to the Customer or its Users.
6.2 Invigor grants the Customer with a worldwide, limited-term license to use the Platform and Content on the terms of this Agreement.
6.3 The Customer grants Invigor and any Affiliates with a worldwide, perpetual, irrevocable, royalty- free license to use and incorporate into the Platform any suggestion, enhancement request, recommendation, correction or other feedback provided by the Customer or Users relating to the operation of the Platform.
6.4 The Customer owns all rights and title in the Customer Data and grants Invigor with a royalty free license to use and manipulate the Customer Data for the duration of the Term in order to provide the Services pursuant to this Agreement.
7.1 This Agreement commences on the date the Purchase Order is signed and continues in full force for the duration of the Term.
7.2 Unless otherwise agreed between the parties, this Agreement will renew for an additional equal to the Term, upon the initial expiry.
7.3 Either party may terminate this Agreement for cause:
(a) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period; or
(b) if the other party suffers an Insolvency Event.
7.4 If this Agreement is terminated by the Customer in accordance with clause 7.1 Invigor will refund any prepaid fees covering the remainder of the term of all Change Orders after the effective date of termination. If this Agreement is terminated by Invigor in accordance with clause 7.1, the Customer must pay any unpaid fees covering the remainder of the Term of all Purchase Orders and Change Orders. In no event will termination relieve the Customer of its obligation to pay any fees payable to Invigor for the period prior to the effective date of termination.
7.5 Invigor may immediately terminate this Agreement by written notice to the Customer if a Change of Control occurs in relation to the Customer.
7.6 Notwithstanding anything to the contrary, either party may terminate this Agreement with 30 days’ notice for any reason. In the event of such termination, any fees that are due to Invigor but have not yet been paid remain due and payable.
7.7 The expiry or termination of this Agreement will not affect or limit any accrued rights of the parties.
7.8 On termination of this Agreement for any reason, the Customer must promptly return to Invigor all Confidential Information it has received in the course of its engagement under this Agreement.
8.1 Each Party warrants that:
(a) it has full corporate power to execute, deliver and perform all obligations under this Agreement;
(b) this Agreement constitutes a legal, valid and binding obligation that is enforceable in accordance with its terms and conditions by appropriate legal remedy;
(c) this Agreement does not conflict with or result in the breach of any law or default under any other agreement to which each party is bound; and
(d) there are no Claims pending or threatened against either Party or by the Parties of which they are aware, and which may have a material effect on the subject matter of this Agreement.
8.2 The Customer warrants that:
(a) at the time of entering into this Agreement it is not relying on any representation made by Invigor which has not been stated expressly in this Agreement, or relying on any descriptions or specifications contained in any other document, including any catalogues or publicity material which Invigor has created, produced or published; and
(b) it is solely responsible for dealing with Users inquires in relation to the Platform and Content.
8.3 Except as expressly provided herein, neither party makes any warranty of any kind, whether express, implied, statutory or otherwise, and each party specifically disclaims all implied warranties including any implied warranty of merchantability, fitness for a particular purpose or non-infringement to the maximum extent permitted by applicable law. Content and Beta Platform are provided “as is”, exclusive of any warranty whatsoever.
8.4 For the avoidance of doubt, Invigor makes no warranty of any kind, whether express or implied, with regard to any third party products, third party content or any software, equipment or hardware obtained from third parties. Invigor sources its content from a variety of third party sources and such content is provided on a ‘as is’ basis.
9.1 The Customer must at all times indemnify and hold harmless Invigor and its officers, employees and agents ("those indemnified") from and against any Claim against those indemnified (whether the Claim is by the Customer or a third party) where the Claim arises out of:
(a) a breach by the Customer of its obligations under this Agreement;
(b) any wilful, unlawful or negligent act or omission of the Customer;
(c) the Customer’s use or misuse of the Platform and Content, including in relation to any business decisions that are made in reliance of the Platform and Content; and
(d) the Customer’s alteration or variation of the Platform and Content that was not performed by Invigor.
10.1 To the full extent permitted by law, Invigor’s cumulative liability to the Customer in respect of all Claims made by the Customer in connection with this Agreement, whether arising out of breach of contract, negligence or any other tort, misrepresentation, under statute or otherwise, will not exceed in the aggregate the amount of the Original Fees which has been paid by the Customer and received by Invigor.
10.2 Without limiting clause 10.1, but to the full extent permitted by law, Invigor excludes all liability to the Customer in respect of all Claims made by the Customer under or in connection with this Agreement for any: anticipated or actual profit, anticipated or actual revenue, loss of data, loss arising from interruption to business, failure to realise anticipated savings, loss of goodwill, loss of contracts or interest, consequential, indirect, special, punitive or incidental damages, whether foreseeable or not, arising out of breach of contract, indemnity, negligence or any other tort, misrepresentation, under statute or otherwise.
10.3 Invigor’s liability in contract, negligence or any other tort, under statute or otherwise in respect of any loss or damages will be reduced by the extent, if any, to which the Customer or its officers, employees, agents or contractors contributed to the loss or damages.
11.1 If a Dispute arises, a Party must not commence any court or arbitration proceedings relating to the Dispute unless it has complied with the provisions of this clause 11, except to seek urgent interlocutory relief.
11.2 A party claiming that a Dispute has arisen must notify the other in writing giving details of the Dispute (Notification).
11.3 On receipt of a Notification, the parties must use reasonable endeavours to resolve the Dispute.Dispute resolution by mediation
11.4 If within 10 days of receipt of a Notification the parties fail to resolve the Dispute, the parties must refer the Dispute to the Project Managers. Each party must ensure that its representative uses reasonable endeavours to resolve the Dispute.
11.5 If the Dispute has not been resolved under clause 11.4 within 20 days, either party may immediately refer the Dispute to the ACDC and the parties will use reasonable endeavours to resolve the Dispute following the ACDC Guidelines. For the avoidance of doubt, the parties agree to the appointment of the mediator on the terms of the Mediation Appointment Agreement contained in the ACDC Guidelines, the terms of which are incorporated into this Agreement.
11.6 Each party must pay its own costs in relation to complying with clause 11, except that the costs and expenses of the mediation will be borne by the parties equally.
12.1 All notices must be in legible writing and in English, addressed to the relevant representatives, details of which are contained in the Purchase Order.Receipt
12.2 Without limiting any other means by which a party may be able to prove that a notice has been received by the other party, a notice will be considered to have been received:
(a) if sent by hand, when left at the address of the recipient;
(b) if sent by prepaid post, 3 days (if posted within Australia to an address in Australia) or 10 days (if posted from one country to another) after the date of posting;
(c) if sent by email, when the sender receives an automated message confirming delivery or four hours after the time the email is sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that the email has not been delivered, whichever occurs first, but if a notice is served by hand, or is received by the recipient's facsimile or email server, on a day that is not a Business Day, or after 5:00 pm (recipient's local time) on a Business Day, the notice will be considered to have been received by the recipient at 9.00 am (recipient's local time) on the next Business Day.
13.1 Except as expressly permitted or required by this Agreement, each party must not disclose to any other person any of the other party's Confidential Information.
13.2 Each party may disclose the Confidential Information of the other party:
(a) when required to do so by law or any regulatory authority, including any stock exchange on which it or any other member of its group is listed; and
(b) to its personnel whose duties reasonably require such disclosure, on condition that the party making such disclosure:
(i) ensures that each such person to whom such disclosure is made is informed of the confidentiality of the information and the obligations of confidentiality under this Agreement; and
(ii) ensures that each such person to whom such disclosure is made complies with those obligations as if they were bound by them.
13.3 Each party must not disclose the terms of this Agreement to any other person, except in accordance with the provisions of clauses 13.2 Data Security and Privacy
13.4 Each party must establish and maintain effective security measures to prevent any unauthorised use or disclosure of, or unauthorised access, loss or damage to, the Confidential Information of the other party.
13.5 Each party undertakes to comply with data security and privacy regulations that exist within the relevant jurisdictions of the operations of the Customer and/or Invigor.
13.6 Invigor will not share, distribute, license or sell the Customer Data to anyone without the Customer’s express written consent.
15.1 The Customer hereby grants Invigor the right to use the name and service marks of the Customer in its marketing materials or other oral, electronic, or written promotions, which shall include naming the Customer as a Customer of Invigor and a brief scope of services provided.
15.2 Any proposed use of Invigor’s logos or links on the Customer's Product must be approved in writing by Invigor.
15.3 Each party may elect to issue a press release, or make any other public statement or reference relating to this Agreement or the parties’ relationship. Before doing so, the party proposing to issue the press release, statement or reference must:
(a) provide a draft of the proposed press release, statement or reference, including any accompanying images, to the other party, and
(b) obtain the written approval of the other party.
15.4 In the quest of continual improvement, Invigor may, from time to time, use de-identified, non- specific data about the usage of the Platform by the end users to improve internal processes and increase efficiency.
16.1 Invigor reserves the right, and the Customer hereby agrees to allow Invigor to assign subcontractors to provide services under this Agreement.Entire agreement
16.2 This Agreement is the entire agreement of the parties about the subject matter of this Agreement and supersedes all other representations, negotiations, arrangements, understandings or agreements and all other communications. No party has entered into this Agreement relying on any representations made by or on behalf of the other, other than those expressly made in this Agreement.Time of the essence
16.3 Time is of the essence in relation to any payments due in connection with this Agreement.Effect of termination
16.4 If this Agreement is terminated then:
(a) the parties are released from the obligation to continue to perform the Agreement except those obligations in clauses 6,8,9,10,13 and any other obligations that, by their nature, survive termination; and
(b) each party retains the rights and claims it has against any other party for any past breach of the Agreement.Indemnities
16.5 The indemnities in this Agreement are:
(a) continuing obligations of the parties, separate and independent from their other obligations and survive the termination of this Agreement; and
(b) absolute and unconditional and unaffected by anything that might have the effect of prejudicing, releasing, discharging or affecting in any other way the liability of the party giving the indemnity.
16.6 It is not necessary for a party to incur expense or make payment before enforcing a right of indemnity under this Agreement.Governing law
16.7 This Agreement is governed by the laws of New South Wales, Australia.Jurisdiction
16.8 Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of New South Wales and waives, without limitation, any claim or objection based on absence of jurisdiction or inconvenient forum.
ACDC means the Australian Commercial Disputes Centre Ltd or, if that organisation ceases to exist, a similar organisation nominated by the Law Society of NSW.
ACDC Guidelines means the ACDC Guidelines for Commercial Mediation (or, if the ACDC ceases to exist, the guidelines for mediation of any similar organisation nominated by the Law Society of NSW in force from time to time, the terms of which are incorporated into this Agreement.
Affiliate means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
Agreement means these terms and conditions.
Beta Platform means an Invigor platform that is not generally available to customers.
Categories means those categories listed in the Purchase Order.
Change of Control means any material change in the extent to which a person (a "Controlling Person") has, or is entitled to acquire, the right or power to secure, whether directly or indirectly, that the affairs of another person (the "Controlled Person") are conducted under the wishes of the Controlling Person, including a change by which one or more Controlling Person comes to hold:
(a) more than 30% of the issued shares or other securities of the Controlled Person or of the voting rights attaching to the issued shares or other securities of the Controlled Person; or
(b) the power to control, directly or indirectly, the appointment of more than 30% of any board of directors or other governing body of the Controlled Person;
Without limiting this, there is attributed to any Controlling Person:
(a) any rights or powers which another person possesses on behalf of the Controlling Person or is or may be required to exercise on the Controlling Person's direction or behalf; and
(b) all rights and powers of any person over which any Controlling Person alone or together with another or other Controlling Persons has control.
Change Order means a Change Order in the form provided by Invigor, to amend the Platform and/or Content being subscribed for.
Claim means any claim, cause of action, suit, proceedings, judgment, debt, fine, penalty, damage, loss, cost, expense or liability of any kind (including court costs and lawyers' fees).
Content means information that Invigor sources and provides to Customer pursuant to this Agreement or any related Change Orders but expressly excludes Customer Data.
Confidential Information means, in relation to each party (for the purposes of this definition, the Discloser):
(a) all information relating to or used by the Discloser or any other member of its Group, including know-how, trade secrets, ideas, marketing strategies and operational information;
(b) all information concerning the business affairs (including products, services, customers and suppliers) or property of the Discloser or any other member of its Group, including any business, property or transaction in which the Discloser or any other member of its Group may be or may have been concerned or interested;
(c) any other information disclosed by or on behalf of the Discloser or any other member of its Group which, by its nature or by the circumstances of its disclosure, is or could reasonably be expected to be regarded as confidential; and
(d) any such information made available to the Discloser or any other member of its Group by any third party, but excluding any information:
(i) which is publicly known;
(ii) which is disclosed to the other party without restriction by a third party and without any breach of confidentiality by the third party; or
(iii) which is developed independently by the other party without reliance on any of the Discloser's Confidential Information.
Controller has the meaning given in the Corporations Act.
Corporations Act means the Corporations Act 2001 (Cth).
Customer or You/Your means the legal entity subscribing to access the Platform.
Customer Data means information that is provided by Customer to Invigor to enable it to provide the Services pursuant to this Agreement.
Dispute means a dispute, difference or question relating to this Agreement including any dispute, difference or question regarding the breach, termination, validity or subject matter of this Agreement or the circumstances leading to the entry by the parties into this Agreement or any claim whether in tort, negligence, equity, under statute or otherwise.
Fees means the fees payable by the Customer to Invigor in accordance with the Purchase Order, including Original Fees and any applicable Change Order(s).
Intellectual Property means all patents, rights in inventions, rights in designs, trade marks, trade and business names, rights to sue for passing off or for unfair competition, copyright, moral rights and related rights, rights in databases, chip or semiconductor topography rights, domain names, rights in information (including Proprietary Information) and all other similar or equivalent rights in any part of the world, in each case whether registered or unregistered and including all applications for, and renewals, extensions or revivals of, such rights for their full term.
Insolvency Event means the happening of one or more of the following events:
(a) except for the purpose of a solvent reconstruction or amalgamation:
(i) process is filed in a court seeking an order that it be wound up or that a Controller be appointed to it or any of its assets, unless the application is withdrawn, struck out or dismissed within 7 days of it being filed; or
(ii) an order is made that it be wound up or that a Controller be appointed to it or any of its assets; or
(iii) a resolution that it be wound up is passed or proposed;
(b) a liquidator, provisional liquidator, Controller or any similar official is appointed to, or takes possession or control of, all or any of its assets or undertaking;
(c) an administrator is appointed to it, a resolution that an administrator be appointed to it is passed or proposed, or any other steps are taken to appoint an administrator to it;
(d) it enters into, or resolves to enter into, an arrangement, compromise or composition with any of, or any class of, its creditors or members, or an assignment for the benefit of any of, or any class of, its creditors, or process is filed in a court seeking approval of any such arrangement, compromise or composition;
(e) any action is taken by the Australian Securities and Investments Commission with a view to its deregistration or its dissolution, or an application is made to the Australian Securities and Investments Commission that any such action be taken;
(f) it is insolvent within the meaning of section 95A of the Corporations Act, as disclosed in its Accounts or otherwise, states that it is unable to pay its debts or it is presumed to be insolvent under any applicable law;
(g) as a result of the operation of section 459F(1) of the Corporations Act, it is taken to have failed to comply with a statutory demand;
(h) it stops or suspends or threatens to stop or suspend the payment of all or a class of its debts or the conduct of all or a substantial part of its business;
(i) any event or circumstance set out in section 461 of the Corporations Act occurs in relation to it; or
(j) anything having a substantially similar effect to any of the events specified in paragraphs
(a) to (j) inclusive happens to it under the law of any jurisdiction.
Invigor means Invigor Group Limited (ACN 081 368 274) or any of its subsidiaries as the case may be.
Modules means those modules listed in the Purchase Order.
Original Fees means the total fees for the Term as originally contracted between the Customer and Invigor, as listed in the Purchase Order.
Platform means the Invigor Insights subscription platform, as it is referred to, from time to time.
Purchase Order means the purchase order attached with these terms and conditions or otherwise provided to the Customer.
Term means the period as nominated on the Purchase Order and extended by this Agreement.
Users means the numbers of users registered and subscribed for the Platform and Content and, for the avoidance of any doubt, includes such of the Customer’s members, staff and contractors who reasonably need access to the Platform and Content for the purpose of the Customer’s analysis of the NSW Container Deposit Scheme.Interpretation
17.1 In this Agreement:
(a) unless the context otherwise requires, a reference to:
(i) dollars or "$" are to Australian dollars, the lawful currency of Australia;
(ii) the singular includes the plural and vice versa;
(iii) a Business Day means a business day in NSW, Australia;
(iv) a document (including this Agreement) is a reference to that document (including any schedules and annexures) as amended, consolidated, supplemented, novated or replaced;
(v) an agreement includes any undertaking, representation, deed, agreement or legally enforceable arrangement or understanding whether written or not;
(vi) parties means the parties to this Agreement and to a party means a party to this Agreement;
(vii) an item, recital, clause, schedule or Annexure is to an item, recital, clause, schedule or Annexure of or to this Agreement;
(viii) a notice means all notices, approvals, demands, requests, nominations or other communications given by one party to another under or in connection with this Agreement;
(ix) a person (including any party) includes a reference to an individual, company, other body corporate, association, partnership, firm, joint venture, trust or Government Agency as the case requires and the person's successors, permitted assigns, executors and administrators;
(x) a law includes a reference to any constitutional provision, subordinate legislation, treaty, decree, convention, statute, regulation, rule, ordinance, proclamation, by- law, judgment, rule of common law or equity or rule of any applicable stock exchange, is a reference to that law as amended, consolidated, supplemented or replaced and is a reference to any regulation, rule, ordinance, proclamation, by- law or judgment made under that law;
(xi) proceedings includes litigation, arbitration and investigation;
(xii) the word including or includes means including, but not limited to, or includes, without limitation;
(b) where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(c) subject to any express provision in this Agreement to the contrary, a warranty, representation, covenant or obligation given or entered into by more than one person binds them severally and not jointly;
(d) headings are for convenience only and do not affect interpretation;
(e) if a payment or other act must (but for this clause) be made or done on a day which is not a Business Day, then it must be made or done on the next Business Day; and
(f) if a period occurs from, after or before a day or the day of an act or event, it excludes that day.
17.2 No rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of, or seeks to rely on, this Agreement or any part of it.