Visibl Terms and Conditions

1 General

1.1 Terms and Conditions

These Visibl Terms and Conditions (Terms and Conditions) govern the Visibl Offerings that the Client purchases.

1.2 Ordering

The Client or any Client Affiliates may order Visibl Offerings from Visibl Consulting Pty Limited ACN 693 869 546 (Visibl) by entering into an Order Form with Visibl (or its Affiliates).

1.3 Agreement Structure

Each Order Form, together with these Terms and Conditions and any other documents attached to or incorporated by reference into that Order Form, forms an independent contract between Visibl and the Client (each, an Agreement or, in reference to one such independent contract, the Agreement).

1.4 Order of Precedence

In the event of any inconsistency between parts of this Agreement, the inconsistency will be resolved by reference to the following order of precedence:

(a) the Order Form;

(b) the Acceptable User Policy;

(d) these Terms and Conditions; and

(e) any other document incorporated by reference to any of the above.

1.5 Definitions and interpretation

(a) A term or expression starting with a capital letter in these Terms and Conditions has the meaning given to it in Appendix 1.

(b) The rules of interpretation for these Terms and Conditions are set out in Appendix 1.

2 Use of Visibl Offerings

2.1 Limitations

Use of a Visibl Offering shall be limited to and subject to:

(a) the restrictions and usage limits set out in an Order Form;

(b) and the Acceptable Use Policy;

2.2 Scope

Subject to the Client's compliance with these Terms and Conditions and payment of all applicable Fees, Visibl shall:

(a) (Cloud Services) provide the Client access to, and use of, the Cloud Services and any agreed ancillary software set out in an Order Form for the Term, as applicable, in accordance with the applicable Service Levels.

(b) (Support Services) provide the Client with the Support Services under the Support Policy and otherwise set out in an Order Form.

2.3 Permitted Use

The Client shall ensure that Permitted Client Affiliates and Client Users use the Visibl Offering solely for the Client's internal business purposes and to process the Client's own business and that of Permitted Client Affiliates, subject to any other limitations set out in the Agreement. The Client may not use the Visibl Offering to provide any service bureau or time-share services to any third parties without prior written consent by Visibl and payment of any additional Fees.

2.4 User Designation

The Client is responsible for identifying and authenticating Users, approving Users' access to the Visibl Offering and preventing any unauthorised access to the Visibl Offering. The Client shall:

(a) not authorise any person to use or access the Visibl Offering unless the Client has designated the person as a User;

(b) maintain the confidentiality of User Credentials and not permit Users to share User Credentials;

(d) ensure that no User is employed or engaged as a contractor by a competitor of Visibl; and

(e) ensure that each User agrees to the EULA and any other terms which Visibl reasonably requires from time to time.

2.5 Suspension and removal

Visibl may suspend or remove any User's access to the Visibl Offering where Visibl, in its absolute discretion, determines that a User:

(a) poses a security risk or threat to Visibl, the function of the Visibl Offering or a Third-Party Component;

(b) is employed or engaged as a contractor by a competitor of Visibl; or

(c) is in breach of or has failed to agree to the EULA and any other terms which Visibl reasonably requires from time to time and which are not adverse to, or inconsistent with, the rights granted to the Client under this Agreement.

2.6 Responsibility for Users

The Client is responsible and liable for all Users' actions and inactions, including any breach of the Agreement, and for any misuse, and associated harm from misuse, of User Credentials.

3 Visibl Obligations

3.1 Visibl Offering

Visibl shall provide the relevant Visibl Offering in accordance with the Order Form for the relevant Term.

3.2 Third-Party Components

Where Visibl makes Third-Party Component(s) available to the Client, the use of such components will be subject to any terms specified in:

(a) the applicable Order Form;

(b) any other written agreement between the Parties; and/or

3.3 No responsibility for Client Materials

Visibl is not responsible for any aspect of any Client Materials and makes no representations and provides no warranties in relation to any aspect of any Client Materials including, but not limited to, performance, security, support and suitability. To the extent permitted by law, Visibl excludes all liability for damages in relation to Client Materials.

3.4 Interoperability with Client Materials

A Visibl Offering may contain features designed to interoperate with certain Client Materials. If any third party provider of such Client Materials takes any action that alters, impedes or impairs Visibl’s ability to interoperate with the Client Materials, Visibl is not responsible or liable for any resulting lack of interoperability.

3.5 Visibl Subcontracting

Visibl may, at its absolute discretion:

(a) subcontract any or all of its obligations under the Agreement to its Affiliates; and/or

(b) engage, remove or replace Third-Party Subcontractors to perform some, but not all, of its obligations.

Visibl is responsible for performance of the subcontracted obligations by its Affiliates and Third-Party Subcontractors.

3.6 General Supplies

Visibl may purchase General Supplies. Obtaining General Supplies is not “subcontracting” for the purposes of the Agreement and providers of General Supplies are not Third-Party Subcontractors. Visibl shall be responsible for General Supplies.

4 Changes to the Terms and Conditions, Visibl Offering and Documentation

4.1 Terms and Conditions

(a) Visibl reserves the right to update or modify these Terms and Conditions from time to time, subject to Visibl giving the Client reasonable notice of the updated or modified Terms and Conditions.

(b) Any use by the Client of a Visibl Offering after the publication of a notice under clause 4.1(a) shall constitute the Client’s acceptance of the updated or modified Terms and Conditions (as applicable).

4.2 Acceptable Use Policy and Documentation

Visibl may update the Acceptable Use Policy and Documentation, provided that the updates do not:

(a) have a material adverse impact on the Client’s rights under the Agreement;

(b) result in a material degradation to the overall security of the Visibl Offering; or

(c) expand the scope of, or remove restrictions on, Visibl’s use or handling of Client IP or Personal Data required for performance of the Visibl Offering.

Where applicable, updated Acceptable Use Policy and Documentation will be available via email.

4.3 Visibl Offerings

(a) Visibl may update a Visibl Offering in a manner that does not materially reduce its functionality, performance, availability or security.

(b) Visibl may replace any material part or functionality of a Visibl Offering by providing not less than three (3) months’ notice to the Client, with a materially similar part or functionality of such Visibl Offering.

5 Fees

5.1 Payment

Fees are identified in the Order Form. Access to the Visibl Offering(s) may be conditional on payment of specific amounts under the Order Form. Payment obligations are non-cancellable, Fees paid are non-refundable and all amounts due under the Agreement from the Client to the Visibl shall be paid in full without any set-off, counterclaim, deduction or withholding, in each case unless otherwise expressly stated in the Agreement. Unless otherwise stated in an Order Form, Fees will increase year-over-year by 5% or the percentage rate change in the Consumer Price Index for the twelve month period immediately preceding the anniversary date of the Order Form, whichever is greater.

5.2 Third-Party Components

Notwithstanding clause 5.1, where the Fees include or otherwise incorporate a charge payable in respect of use of a Third-Party Component (Third-Party Charge), if the Third-Party Provider increases the fees they charge to Visibl for that Third-Party Component, Visibl may increase the Third-Party Charge by no greater than the same percentage increased by the Third-Party Provider, by written notice to the Client. Such increase may only be made with no less than 14 days advance written notice to the Client.

5.3 Due Date

Invoiced charges are due net 30 days from the invoice date. Charges for any renewal or extension of the Term must be paid before the expiration of the then-current period of the Term.

5.4 Overdue Charges

If Visibl does not receive an amount payable by the Client by the due date, then the overdue charges shall accrue late interest at:

(a) 1% per month; or

(b) the maximum rate permitted by law,

whichever is lower, from the date such payment was due until the date payment is received by Visibl.

5.5 Invoice Disputes

If the Client reasonably and in good faith disputes all or part of an invoice, it shall provide Visibl written notice of the reasons for such dispute within fourteen (14) days of receipt of such invoice. The Client shall not be entitled to withhold payment of any Fees relating to the undisputed aspects of the invoice.

5.6 Taxes

(a) Unless otherwise stated in an Order Form, Visibl’s Fees do not include any Taxes.

(b) The Client is responsible for paying all Taxes associated with the Client’s purchases from Visibl.

(i) Visibl has a legal obligation to pay or collect Taxes for which the Client is responsible under this clause 5; or

(ii) the Client must withhold or collect Taxes from the amount which the Client is responsible under this clause 5,

Visibl may invoice the amount to the Client in a manner that complies with the applicable tax law and the Client shall pay the tax grossed up amount unless the Client provides Visibl with a valid tax exemption certificate authorised by the appropriate taxing authority.

(d) The Client will provide such information to Visibl as is reasonably required to determine whether Visibl is obligated to collect Taxes from the Client.

(e) Visibl is solely responsible for Taxes assessable against Visibl based on the Visibl’s income, property and employees.

5.7 GST

(a) Any consideration or amount payable under this Agreement, including any non-monetary consideration (as reduced in accordance with this clause 5.7 if required) (Consideration) is exclusive of GST.

(b) If GST is or becomes payable on a Supply made under or in connection with this Agreement:

(i) an additional amount (Additional Amount) is payable by the party providing consideration for the Supply (Recipient) equal to the amount of GST payable on that Supply as calculated by the party making the Supply (Supplier) in accordance with the GST Act; and

(ii) the Additional Amount payable under clause 5.7(b)(i) is payable without set off, demand or deduction at the same time and in the same manner as the Consideration for the Supply.

(c) Each invoice delivered by the Supplier under this Agreement for any such Supply must comply with all the requirements for a Tax Invoice under the GST Act, and the Recipient will not be required to pay any such invoice unless the invoice complies with all the requirements for a Tax Invoice under the GST Act.

6 Proprietary Rights

6.1 Reservation of Rights

(a) Except as provided in this clause, Visibl shall own all right, title, and interest in and to the Visibl IP, and the Client shall own all right, title, and interest in and to the Client IP.

(b) Neither Party grants any rights to the other Party except as expressly specified in this Agreement or as provided under non-excludable laws.

6.2 Licence for Performance

For so long as this Agreement is in effect, the Client grants to Visibl a non-exclusive, royalty-free, sublicensable, non-transferable (except as provided in clause 15.6), worldwide licence to use and reproduce the Client IP only as necessary for Visibl’s performance of this Agreement.

6.3 Anonymous Metadata

(a) The functionality of a Visibl Offering may include the ability to generate Anonymous Metadata. Visibl may collect and use the Anonymous Metadata for the purposes of analytics, market and client demographic analysis and for other purposes as Visibl may determine from time to time.

(b) Visibl shall own all right, title, and interest in and to the Anonymous Metadata.

6.4 Feedback

The Parties acknowledge and agree that all Intellectual Property Rights in any suggestions, enhancement requests, recommendations, or other feedback relating to the operation of the Visibl Offering that the Client or any User provides to Visibl and that are incorporated into a Visibl Offering shall be owned by Visibl.

6.5 Documentation

The Client may use the Documentation solely for the Client’s internal business purposes in connection with its use of the Visibl Offering during the Term. The Client may make copies of the Documentation only as reasonably necessary in accordance with the foregoing and any such copies must contain the same copyright and other proprietary notices that appear on or in the Documentation.

6.6 Marketing and trademarks

Visibl shall have the right to use the Client’s trademark and/or logos on Visibl’s or its Affiliates’ website, social media, marketing material and during meetings and events (internal and external) as a Visibl customer.

7 Confidentiality

7.1 Protection of Confidential Information

The Recipient may use the Discloser’s Confidential Information solely for the purposes of performing its obligations or exercising its rights under the Agreement and must keep the Discloser’s Confidential Information confidential using the same degree of care that the Recipient uses to protect its own confidential information, and no less than reasonable care. Except as the Discloser authorises in writing, the Recipient shall limit access to Confidential Information:

(a) to those of the Recipient’s and the Recipient’s Affiliates’ employees, contractors, agents, professional advisers and insurers who need the access for purposes consistent with the Agreement and who have signed confidentiality agreements with the Recipient containing protections no less stringent than those in the Agreement;

(b) to a regulator who has the power to require access to the terms of the Agreement; or

(c) relating to the terms of the Agreement to an investor, acquiring company, bank, or other financial institution, under an appropriate confidentiality agreement, in connection with a merger, acquisition, financing, loan, or similar transaction, solely for the purpose of evaluating the relevant business.

7.2 Permitted disclosure

A Recipient may disclose Confidential Information if such disclosure:

(a) is compelled by applicable law, by a court or governmental authority, provided that and where permissible by applicable law, prior to disclosing any such Confidential Information, the party making the disclosure has promptly notified the other party in writing to allow that party to take all reasonable steps to maintain such Confidential Information in confidence; or

(b) is required to be disclosed in accordance with the rules of any stock exchange upon which the securities of the Recipient or its Affiliate are listed.

7.3 Confidential Information upon Termination

On the Discloser’s written request, or on termination or expiry of the Agreement, the Recipient must promptly return or destroy all of the Discloser’s Confidential Information in the Recipient’s possession, except to the extent such Confidential Information needs to be retained for the purpose of actual or potential litigation or other legally required record-keeping purposes, or is backed-up in a way that makes it impractical to do so. The Recipient will promptly certify that it has taken such action on the Discloser’s request.

8 Warranties and Disclaimers

8.1 Visibl’s Warranties

Visibl warrants that:

(a) it has validly entered into the Agreement and has the legal power to do so;

(b) it has the necessary rights, authorisations or licenses to perform its obligations under the Agreement; and

Additional warranties applicable to Visibl Offerings are set out in the applicable Schedules.

8.2 Client Warranties

The Client warrants that:

(a) it has validly entered into the Agreement and has the legal power to do so;

(b) its obligations under this Agreement are legal, valid and binding obligations enforceable subject to and in accordance with their terms;

(d) the Client IP does not infringe the Intellectual Property Rights of any third party; and

(e) in entering into this Agreement and obtaining the Visibl Offerings, it relies on its own investigations and enquiries and does not rely on the representations or other conduct of Visibl made at any time.

Additional warranties applicable to the Visibl Offerings are set out in the applicable Schedules.

8.3 No other warranties

(a) Except as expressly stated in these Terms and Conditions, the Visibl Offering is provided on an ‘as is’ and ‘with all faults’ basis.

(b) Except as expressly stated in these Terms and Conditions, to the fullest extent permitted by applicable law, Visibl and its Affiliates hereby disclaim and exclude all other warranties, whether express, implied, statutory or otherwise, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, non-infringement, satisfactory quality and those arising from course of dealing, course of performance, and usage of trade.

8.4 Reliance

Each Party confirms that:

(a) in entering into the Agreement it has not relied upon, and the other Party has not made, any representation, warranty, assurance, covenant, indemnity, undertaking or commitment which is not expressly set out in the Agreement; and

(b) in any event, without prejudice to any liability for fraudulent misrepresentation or fraudulent misstatement, the only rights or remedies in relation to any representation, warranty, assurance, covenant, indemnity, undertaking or commitment given or action taken in connection with the Agreement are pursuant to the Agreement, and neither Party has any other right or remedy, whether by way of a claim for contribution or otherwise, in tort (including negligence) or for misrepresentation, whether negligent or otherwise, or whether made prior to and/or in the Agreement.

8.5 Statutory Warranties, Conditions and Guarantees

(a) Nothing in these Terms and Conditions limits any warranties, conditions, guarantees or non-excludable terms that are implied or incorporated into this Agreement by mandatory laws (including applicable consumer and fair trading laws), where any exclusion of the relevant representation or warranty would contravene those laws or render any part of this Agreement void.

(b) To the fullest extent permitted by law, the liability of Visibl and its Affiliates, licensors and suppliers for a breach of any non-excludable terms is limited at Visibl’s option, to (i) supplying the applicable Visibl Offering again; or (ii) paying the cost of having the applicable Visibl Offering supplied again.

9 Indemnification by Visibl

9.1 Indemnity

Visibl shall defend the Client against any Third-Party Claim and shall indemnify the Client for any Losses arising from a Third-Party Claim.

9.2 Limitations

Visibl shall have no liability or obligation in relation to a Third-Party Claim to the extent such Third-Party Claim is based on or only arises as a result of:

(a) necessary implementation of an industry standard or protocol;

(b) any use of the Visibl Offering outside the scope of the Agreement;

(c) any Client Materials or any software, program, product, service, component, method, or other element, not supplied by Visibl as part of the Visibl Offering;

(d) any modification or addition to the Visibl Offering not performed by or on behalf of Visibl;

(e) Visibl’s compliance with particular specifications, instructions, or requirements furnished by, or behalf of, the Client; and

(f) the Client’s continued use of the Visibl Offering or part thereof, after being notified (in accordance with the terms of the Agreement) to discontinue such use.

9.3 Conduct of Claim

The rights of the Client under this clause 9 are conditional on it:

(a) promptly notifying Visibl in writing of any Third-Party Claim and providing all reasonable assistance to Visibl in the defense and resolution of the relevant Third-Party Claim; and

(b) giving Visibl sole control of the defence and settlement of any Third-Party Claim. Any settlement will be subject to written approval by the Client, not to be unreasonably withheld or delayed.

9.4 Prevention and Mitigation

(a) In the event of an actual or threatened Third-Party Claim or identification of a vulnerability that could reasonably lead to a Third-Party Claim , Visibl may, at no cost to the Client:

(i) modify the item to avoid or mitigate the Third-Party Claim, without being deemed to have breached any obligation; or

(ii) obtain a licence for its continued use in accordance with this Agreement.

(b) If Visibl is unable to achieve an outcome under clause 9.4(a) by using reasonable efforts on reasonable commercial terms, Visibl may:

(i) notify the Client of the facts and circumstances of the vulnerability to a claim of infringement or misappropriation, 14 days after which time the Client shall assume all risk of a Third Part Claim with respect to the disclosed facts and circumstances to the extent the Client or any Affiliate continues to use the Visibl Offering; or

(ii) terminate the Client’s access to and use of the infringing components of the Visibl Offering upon 30 days’ written notice and provide the Client a pro rata refund for any unused prepaid fees in relation to that infringing component.

9.5 Exclusive Remedy

This clause 9 states Visibl’s sole liability to the Client, and the Client’s exclusive remedy against Visibl for any Third-Party Claim.

10 Indemnification by the Client

10.1 Indemnity

The Client shall defend Visibl, its Affiliates, licensors, suppliers and Third-Party Subcontractors (“Visibl Indemnified Parties”) against any claim made against a Visibl Indemnified Party by a third party based on:

(a) any Client Indemnified Materials infringing the Intellectual Property Rights of a third party or making unlawful use of a third party’s trade secrets or violating any applicable law;

(b) any usage of the Visibl Offering by the Client, Client Affiliate or Users not in compliance with the Agreement;

(c) any violation of applicable law, regulation or legal right of others or the unauthorized access to or disruption of any service, data, account or network in connection with the use of the Visibl Offering, by the Client, Client Affiliate or User; or

(d) Client’s failure to use any patch, update or bug fix provided by Visibl, and shall indemnify the Visibl Indemnified Parties for Losses arising from such claims.

10.2 Exclusions and limitations

Nothing in the Agreement shall exclude or limit the liability of the Client for the indemnity set out in clause 10.1.

11 Limitation of Liability

11.1 General Limitation of Liability

The aggregate liability of Visibl for all causes of action (whether in contract, or tort (including negligence) or otherwise) under or in connection with the Agreement shall be limited to the Fees paid by the Client for the particular Visibl Offering under the Agreement in the twelve (12) months prior to the date the first such cause of action arose.

11.2 Exclusion of Consequential and Related Damages

Visibl shall have no liability under the Agreement for any lost profits, data, business opportunities or revenues, regulatory penalties, or for any indirect, special, incidental, consequential, cover, or punitive damages however caused, whether in contract, tort, including negligence, for breach of statutory duty, or any other theory of liability, even if advised of the possibility of such damages.

11.3 Basis of the Bargain

The Client acknowledges that the Fees charged by Visibl under this Agreement reflect the overall allocation of risk between the Parties, including through this Agreement’s limitations of liabilities and exclusive remedies.

11.4 Mitigation of Losses

(a) A Party’s liability will be reduced to the extent caused or exacerbated by acts or omissions of the other Party.

(b) Each Party must take all reasonable action to mitigate any loss it suffers for which the other Party is liable, including in relation to any indemnity.

11.5 Limitation on Actions

(a) No action arising out of an Agreement, howsoever arising, shall be brought by the Client more than one (1) year from the date it receives knowledge of the alleged Losses and in any event no later than one (1) year after termination or expiry of the Agreement.

(b) Client shall not participate in, and hereby waives all rights in connection with, any class or group action against Visibl (or any of its Affiliates).

12 Duration and Termination

12.1 Duration

(a) These Terms and Conditions shall become effective on the date the Client and Visibl signs an Order Form referencing these Terms and Conditions, and continue in effect unless terminated (as set out below).

(b) The duration of an Agreement shall be as set out in the corresponding Order Form.

12.2 Termination for Cause

Either Party may terminate an Agreement by giving written notice to the other Party:

(a) if the other Party commits a material breach of the Agreement which is not capable of remedy, or if capable of remedy which is not cured by the other Party within fourteen (14) days after receipt of written notice notifying it to do so; or

(b) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, dissolution (other than for the purposes of a solvent reconstruction or amalgamation), or assignment for the benefit of creditors which, if filed by a third party, is not dismissed within sixty (60) days.

12.3 Termination for expiry of Visibl Offerings

These Terms and Conditions will terminate in respect of an Agreement when the underlying Order Form, entered into by the Parties or their Affiliates, has expired or been terminated.

12.4 Termination in connection with Third-Party Components

(a) Visibl may terminate the Agreement and any Order Form with immediate effect where the Client, any Client Affiliate or any Client User is not approved or rejected by the provider of a Third-Party Component that is an embedded part of a Visibl Offering.

(b) Visibl may terminate the Agreement and any Order Form with immediate effect where the provider of a Third-Party Component has terminated its agreement with Visibl in so far as it applies to the Client.

12.5 Surviving Provisions

Clauses 5 (Fees), 6 (Proprietary Rights), 7 (Confidentiality), 8 (Warranties and Disclaimers), 9 (Indemnification by Visibl), 10 (Indemnification by the Client), 11 (Limitation of Liability), 12 (Duration and Termination), 13 (Governing Law and Jurisdiction), 14 (Notices) and 15 (General Provisions), Appendix 1 (Definition and Interpretation) and any other provision which is intended to survive termination shall survive any termination or expiration of this Agreement.

13 Governing Law and Jurisdiction

13.1 Governing Law

This Agreement will be governed by and must be construed and enforced in accordance with the laws of New South Wales, Australia.

13.2 Jurisdiction

The Parties submit to the exclusive jurisdiction of the courts of New South Wales, Australia and the Commonwealth of Australia in respect of all matters arising out of or relating to this Agreement, its performance or subject matter.

14 Notices

(a) Except as otherwise specified in this Agreement, all notices, permissions and approvals (Notices) under this Agreement shall be in writing and in English.

(b) In addition to any other method of service provided by law, the Notice may be sent by prepaid post to, or delivered at, the address of the addressee or by email to the email address set out in this Agreement or subsequently notified. If the Notice is sent or delivered in a manner provided by this clause, it must be treated as given to and received by the Party to which it is addressed:

(i) if sent by email, when delivered or transmitted by email (and the sender does not receive an email delivery failure notification);

(ii) if sent by a nationally recognised next-day courier service (fees prepaid), on the date it is delivered;

(iii) if sent by post, on the 7th Business Day (at the address to which it is posted) after posting; or

(iv) if personally delivered before 5pm on a Business Day at the place of delivery, upon delivery, and otherwise on the next Business Day at the place of delivery.

15 General Provisions

15.1 Anti-Corruption

(a) Each Party represents that it shall at all times comply with any laws applicable to the Party relating to bribery and corrupt practices, and each Party confirms that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of the other Party’s employees or agents in connection with this Agreement.

(b) Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.

15.2 Relationship of the Parties

(a) The Parties are independent contractors.

(b) This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties.

15.3 No Third-Party Beneficiaries

There are no third-party beneficiaries to this Agreement.

15.4 Waiver

No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right unless the waiver is in writing.

15.5 Severability

(a) If any provision of these Terms and Conditions is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

(b) Should a court decline to so modify this Agreement, either Party may initiate arbitration with a leading commercial arbitration organization to so modify this Agreement.

15.6 Assignment

(a) The Client may not assign this Agreement, in whole or in part, to any other person or entity, including but not limited to any Affiliate or subsidiary of the Client, without the prior written consent of Visibl (which shall not be unreasonably withheld).

(b) Visibl may assign this Agreement upon notice to the Client.

15.7 Force Majeure Event

(a) Neither Party shall be liable for any unavailability, failure or delayed performance of its obligations under the Agreement if caused by a Force Majeure Event.

(b) The non-performing Party shall be excused from performance of affected obligations, other than payment obligations for the duration of the Force Majeure Event, but will use reasonable efforts to recommence performance to the extent possible without delay.

(c) The non-performing Party shall immediately notify the other Party and describe in reasonable detail the Force Majeure Event.

15.8 Entire Agreement

(a) This Agreement is the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.

(b) Neither Party has relied upon any such prior or contemporaneous communications.

(c) No terms or conditions stated in the Client’s purchase order or other order documentation (excluding an Order Form) shall be incorporated into or form any part of this Agreement, and all such terms or conditions are rejected and shall be null and void, despite any language to the contrary in the purchase order or other order documentation.

(d) These Terms and Conditions do not include any provision that applicable law would otherwise imply or incorporate, to the extent the law allows the Parties to exclude, waive, or disclaim the provision.

15.9 Export Controls and Sanction

(a) The Client shall not permit any third party to access or use the Visibl Offering in violation of any export or import law or regulation or export the Visibl Offering except in compliance with all applicable laws and regulations.

(b) Without limiting the generality of the foregoing, the Client shall not permit the Visibl Offering to be accessed or used by anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals, or by anyone in a country subject to a United States embargo.

(c) Notwithstanding anything to the contrary herein, nothing in the Agreement is intended, and nothing herein should be interpreted or construed, to induce or require either of the Parties to act (or refrain from acting) in any manner which is or risks being inconsistent with, penalised or prohibited under any Sanction.

(d) If the Client, a Client Affiliate, a Client User or an individual connected with any such entity is subject to a Sanction or becomes a Sanctioned Entity and as a result it is unlawful for any Party to perform any of its obligations hereunder, then either Party shall have the right to terminate the Agreement or part thereof forthwith, without thereby incurring any liability.

15.10 AML/CTF Disclaimer and Applicable Laws

(a) The Client acknowledges that Visibl is not a reporting entity within the meaning of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (the AML/CTF Act).

(b) While the Client may use the Visibl Offerings to assist itself, its Client Affiliates and/or End Users to comply with one or more laws, the Client acknowledges and agrees that:

(i) the Client (or the relevant Client Affiliate or End User as applicable) retains ultimate responsibility for their compliance with Applicable Laws and Visibl has no liability or responsibility whatsoever for the Client (or the relevant Client Affiliate or End User as applicable) breaching any Applicable Laws or obligations which they have to a third party, as a result of any inaccuracy or failure of a Third-Party Component;

(ii) the Visibl Offering may act as a conduit between the Client and Third-Party Providers. That is, the Visibl Offering takes data or information provided by the Client (or an End User) to the Third-Party Provider and the Third-Party Provider generates an output or Third-Party Component based on that data or information;

(iii) Visibl gives no warranty and makes no representation in relation to when Third-Party Components will be provided to the Client or its End Users and if a Third-Party Provider is unavailable to Visibl, or cannot be accessed via the Visibl Offering for any reason whatsoever, then the Client and its End Users will be unable to access and use that Third-Party Component during the period of unavailability;

(iv) the Visibl Offerings and/or Third-Party Components may be unavailable for use by the Client during periods of planned maintenance or upgrades, or where Visibl considers such unavailability is necessary to rectify an issue with the relevant Visibl Offering or Third-Party Component or due to a Force Majeure Event;

(v) in providing the Visibl Offerings, Visibl does not undertake any verification or confirmation of any Third-Party Components and Visibl has no responsibility for the accuracy or completeness of the Third-Party Components and Visibl does not warrant that information obtained via Third-Party Components is accurate, complete or up to date;

(vi) Visibl is under no obligation to review any Third-Party Component or communicate any discrepancy in a Third-Party Component which may place the Client (or the relevant Client Affiliate or End User as applicable) in breach of any Applicable Laws; and

(vii) it must not make, and must ensure that its Client Users do not make, any express or implied representation to End Users which are inconsistent with this clause 15.10(b).

15.11 Further assurance

Each Party must promptly at its own cost do all things (including executing and if necessary, delivering all documents) necessary or desirable to give full effect to this Agreement.

Appendix 1: Definitions and interpretation

1. Definitions

In these Terms and Conditions:

Acceptable Use Policy means the acceptable use policy for the Visibl Offering set out at Annexure 1 which may be updated periodically in accordance with clause 4.

Affiliate means with respect to a party:

(a) any entity controlled by the party, controlling the party, or under common control with the party, and for the purposes of this definition: “control” shall exist through direct ownership of more than fifty per cent (50%) of the nominal value of the issued equity share capital or of more than fifty per cent (50%) of the shares entitling the holders to vote for the election of directors or persons performing similar functions or to rights by any other means to elect or appoint directors or persons who collectively may exercise such control or through indirect ownership of all of the issued equity share capital; or

(b) any entity that is within the same “reporting group” as the party for the purposes of the AML/CTF Act.

Agreement has the meaning given to it in clause 1.3.

AML/CTF Act has the meaning given to it in clause 15.10(a).

Anonymous Metadata means any data relating to the use of a Visibl Offering by Users which, at the time of collection and onward, does not relate to any individual who is or can be identified or reasonably identified.

Applicable Laws include, without limitation:

(a) the AML/CTF Act;

(b) the Privacy Act 1988 (Cth); and

(c) all other statutory laws, common laws, rules, regulations, directions, standards, policy statements, orders, subordinate legislation or by-laws as amended, replaced, re-enacted or succeeded from time to time in the relevant jurisdiction applicable to the Visibl Offerings.

Business Day means a day that is not a Saturday, Sunday or any other day which is a public holiday or a bank holiday in the place where an act is to be performed or a payment is to be made.

Client means the recipient of any Visibl Offering as set out in an Order Form.

Client Affiliate means an Affiliate of the Client.

Client Data means the electronic data, content or information, including Personal Data, submitted by or on behalf of the Client, a Client Affiliate, or the Users, to Visibl or Visibl Affiliates through the use of the Cloud Services or as otherwise specified in an Order Form.

Client Indemnified Materials means any: (a) Client IP and (b) Client Materials, other software and/or content not provided by Visibl which is hosted on, linked to, or combined with, the Cloud Services by or on behalf of the Client.

Client IP means: (a) all rights, including Intellectual Property Rights: (i) owned by the Client or its Affiliates as of the date an Agreement commences; or (ii) acquired, developed or created by the Client or its Affiliates independently of the Visibl Offering; (b) Client Data; and (c) all modifications, extensions, customizations, upgrades, enhancements, and derivative works of any of the foregoing.

Client Materials means software (including plug-ins), applications, integrations, implementations, customizations, services, personnel, resources and content provided by or on behalf of the Client.

Client User means an employee, contractor, representative or agent of the Client or of a Permitted Client Affiliate, in each case authorised by the Client to use the Visibl Offering.

Cloud Services means the provision of a software-based anti-money laundering and counter-terrorism financing compliance platform by Visibl as set out in an Order Form together with any an application programming interface contained on, used with or from the platform.

Confidential Information means all non-public information disclosed by, or on behalf of, a Party (a “Discloser”) to the other Party (a “Recipient”), whether orally or in writing (including prior to the date of the Agreement), that the Discloser has designated as confidential or that the Recipient should reasonably understand to be confidential. Confidential Information includes the Discloser’s business processes and plans, marketing plans, technology, technical information, product plans and designs, clients or prospective clients, suppliers or prospective suppliers, the terms and subject matter of the Agreement and, in respect of Visibl, the Visibl Offering and its pricing, the Documentation and the results of any security audit. Confidential Information does not include information that:

(a) is or becomes generally known to the public without breach of any obligation the Recipient owed to the Discloser;

(b) was known to the Recipient without breach of any obligation owed to the Discloser before the Discloser disclosed the information to the Recipient;

(d) the Recipient independently developed without the use of any of Discloser’s Confidential Information, which fact can be shown by satisfactory evidence upon request of the Discloser.

Consumer Price Index means the Consumer Price Index (All Groups, Australia) as published by the Australian Bureau of Statistics, unless otherwise set forth in the Order Form.

Dependencies means the responsibilities, roles and obligations of the Client or information or assistance to be provided by the Client required for the purpose of enabling or facilitating the provision of the Visibl Offering.

Documentation means the explanatory electronic and/or paper documents Visibl supplies to the Client in connection with the Visibl Offering, describing the use of such Visibl Offering including user guides, manuals and/or technical and operational descriptions.

Effective Date means, for each Client, the date of the Order Form for that Client.

End Users means:

(a) actual or potential customers of the Client or of a Permitted Client Affiliate;

(b) counterparties of the persons in paragraph (a);

(d) employees, contractors, representatives, agents or auditors of the Client who access the Visibl Offering in a direct capacity; and

(e) any other person designated by Visibl from time to time,

in each case, whom the Client allows to use or procures the use of the Cloud Services in the course of the Client offering to supply and/or purchase products, goods or services. For the avoidance of doubt, End Users does not include Client Users.

EULA means the end user licence agreement which will apply to the Visibl Offering as accessed by End Users from time to time.

Fee means any fees or charges payable by the Client to Visibl for the Visibl Offering under the Agreement.

Force Majeure Event means any event outside the reasonable control of the obligated party including: (a) a failure or deficiency in equipment or software of a third party which is caused by an event outside the reasonable control of this third party; or (b) failure or delay of performance if caused by an act of war, hostility, cyberattack, or sabotage, an act of God, pandemic, electrical, internet, satellite, data transmission, networking infrastructure or telecommunication failure or outage; or (c) government restrictions or regulations including sanctions and trade embargos, or any change in law, regulation, industry standard or government order or direction.

General Supplies means: (a) third party providers of goods and services; and (b) contracted persons to provide services, in each case purchased by Visibl from third parties during the ordinary course of business.

GST means a goods and services tax, or a similar value added tax, levied or imposed under the GST Law.

GST Law has the meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999 (Cth), and a term or expression starting with a capital letter in Clause 5.7 herein which is defined in the GST Law, but is not otherwise defined in this Agreement, has the meaning given to it in the GST Law.

Intellectual Property Right means all industrial and intellectual property rights both in Australia and throughout the world, whether now known or devised in the future, and for the duration of the rights including any patents, copyright, registered or unregistered trade marks or service marks, registered designs and commercial names and designations, circuit layouts, database rights and rights in relation to confidential information and trade secrets, whether or not registered or registrable.

KYB means the know your business anti-money laundering and counter-terrorism financing compliance process.

KYC means the know your customer anti-money laundering and counter-terrorism financing compliance process.

Losses means damages, reasonable attorneys’ fees, and costs finally awarded against a party by a court or arbitration or amounts paid by a party under an approved final settlement.

Malicious Code means a virus, worm, time bomb, trojan horse, ransomware or other harmful or malicious code, file, script, agent, or program.

Notices has the meaning given to in clause 14(a).

Order Form means the order form submitted by the Client for the provision of a Visibl Offering described in that order form and expressly stating it is governed by these Terms and Conditions. An Order Form for Professional Services may be referred to as a Services Order.

Permitted Client Affiliate means the Client Affiliates expressly listed as ‘Permitted Client Affiliates’ in an Order Form to the Agreement, and for as long as the company or legal entity remains Client Affiliates as defined in the Agreement.

Professional Services means escalation of KYC and KYB queries to the personnel of Visibl or a Visibl Affiliate, as specified in a Services Order. Professional Services does not include the Support Services or providing access to the Cloud Services.

Sanction means any sanction, regulation, statute, official embargo measures or any ‘specially designated nationals’ or ‘blocked persons’ lists, or any equivalent lists maintained and imposed by the United Nations, the Department of Foreign Affairs and Trade, the European Union, Switzerland, the Republic of Singapore, the United States Department of Treasury (Office of Foreign Assets Control), or any replacement or other regulatory body, in each case enforcing economic and/or trade sanctions legislation in such country or by any supranational or international governmental organisation.

Sanctioned Entity means any entity, being an individual, corporation, company, association or government, who or which: (a) is subject to a Sanction; or (b) is an entity which is more than 50% owned, or is controlled, directly or indirectly, by any entity which is subject to a Sanction.

Services Order means an order or any other contractual document agreed between Visibl and the Client for the Professional Services, which shall be subject to and governed by the Terms and Conditions.

Tax means any tax or charge levied by any governmental body including but not limited to any value-added, goods and services, sales, use, or withholding tax assessable by any local, state, provincial, federal, or foreign jurisdiction.

Term means the duration of the Agreement commencing on the Effective Date of the Order Form and continuing for the period(s) of time indicated in the Order Form, unless terminated earlier in accordance with the Agreement.

Terms and Conditions means this document, including any Schedule, Appendix or Annexure to it.

Third-Party Charge has the meaning given in clause 5.2.

Third-Party Claim means a claim made against the Client by a third party alleging that the authorised use of the Cloud Services infringes the Intellectual Property Rights of that third party.

Third-Party Component means software (including plug-ins), applications, integrations, implementations, customizations, services and content owned by a third party which is: (a) provided by Visibl either as an embedded part of, or in addition to, a Visibl Offering; and (b) subject to additional terms as specified in an Order Form or separate terms and conditions.

Third-Party Provider means the provider of a Third-Party Component.

Third-Party Subcontractor means a subcontractor of Visibl who is not an Affiliate of Visibl.

User means a Client User or an End User.

User Credentials means the Users’ usernames, passwords and account information.

Visibl means Visibl Consulting Pty Limited ACN 693 869 546.

Visibl’s Environment means a cloud environment under Visibl’s control used to provide the Cloud Services, as set out in an Order Form and relevant Documentation.

Visibl Indemnified Parties has the meaning given to it in clause 10.1.

Visibl IP means: (a) all rights, including Intellectual Property Rights: (i) owned by Visibl or its Affiliates as of the date an Agreement commences; (ii) acquired, developed or created by Visibl or its Affiliates independently or as part of the Visibl Offering provided to the Client; or (iii) in or relating to the Visibl Offering, including any models, algorithms, software code and other outputs created by or using the Visibl Offering, and all integrations between the Visibl Offering and third-party applications; and (b) all modifications, extensions, customizations, upgrades, enhancements, and derivative works of any of the foregoing.

Visibl Offering means as applicable, Cloud Services, Support Services and/or Professional Services, or any other offering made available by Visibl including training services, as listed in the Order Form. A Visibl Offering does not include Client Materials.

2. Interpretation

(a) A reference in these Terms and Conditions to:

(i) one gender includes the others;

(ii) the singular includes the plural and the plural includes the singular;

(iii) a Party includes the Party’s executors, administrators, successors and permitted assigns;

(iv) a thing or a right includes the whole and each part of it separately;

(v) a statute, regulation, code or other law or a provision of any of them includes:

(A) any amendment or replacement of it; and

(B) another regulation or other statutory instrument made under it, or made under it as amended or replaced; and

(vi) any currency specified in the Order Form (e.g. dollars) is Australian dollars, being the lawful currency of the Commonwealth of Australia, unless the Order Form specifies another currency.

(b) “Including” and similar expressions are not words of limitation.

(c) Where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning.

(d) Headings are for convenience only and do not form part of these Terms and Conditions or affect its interpretation.

(e) A provision of these Terms and Conditions must not be construed to the disadvantage of a Party merely because that Party was responsible for the preparation of these Terms and Conditions or the inclusion of the provision in these Terms and Conditions.

(f) If an act must be done on a specified day which is not a Business Day, it must be done instead on the next Business Day.

Annexure 1: Acceptable Use Policy

The Client shall not, and ensure its Users do not, and not permit or help any other person to:

(a) reproduce, modify, enhance, or adapt any part of the Visibl Offering or the Documentation, except in the ordinary course of accessing and using the Visibl Offering in compliance with the Agreement;

(b) permit a third party to reproduce, modify, enhance, or adapt the Visibl Offering without Visibl’s prior written consent;

(d) make the Visibl Offering available to anyone other than Client Affiliates or Users unless expressly allowed in an Order Form;

(e) sell, resell, rent, lease, lend, sublicense or grant other rights to the Visibl Offering (including rights on a membership, subscription, service bureau or time-sharing basis);

(f) use any technology or know-how learned from Visibl Offering, or any of the Visibl’s Confidential Information, to create any service or other technology that has features and functionality the same as or similar to the features and functionality of the Visibl Offering;

(g) use the Visibl Offering in an unlawful manner or for an unlawful purpose;

(h) subject to the indemnity granted by Visibl in clause 9 of the Terms and Conditions, use the Visibl Offering in a manner which infringes the Intellectual Property Rights, privacy or other rights of any person;

(i) use the Visibl Offering in violation of the limitations set forth in any Order Form; or

(j) use the Visibl Offering to store, upload, transmit or otherwise distribute any content that is unlawful, defamatory, harassing, abusive, fraudulent, obscene, or knowingly or recklessly contains Malicious Code.

Schedule 1 – Cloud Services Schedule

This Cloud Services Schedule applies to any Cloud Services provided by Visibl to the Client, and supplements and is incorporated by reference into the Terms and Conditions. Terms defined in the Terms and Conditions apply to this Cloud Services Schedule.

1 Additional Definitions

Client’s Environment means a cloud environment under the Client’s control used to receive the Cloud Services, as set out in an Order Form and relevant Documentation.

Cloud Services Warranty has the meaning set out in clause 6.1 of this Schedule.

Controller means the natural or legal person which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data.

Fourth Party Data-Sets has the meaning given in clause 10.1(a) of this Schedule

Hosting Provider has the meaning set out in clause 4.1 of this Schedule.

Malicious Code means a virus, worm, time bomb, trojan horse, ransomware or other harmful or malicious code, file, script, agent, or program.

Personal Data means any information relating to an identified or identifiable natural person where such data is Processed by Visibl on behalf of the Client as part of, or in connection with, the Visibl Offering and shall at all times include where such data is Client Data. For the avoidance of doubt, it shall include “Personal Information” as that term is defined in the Privacy Act 1988 (Cth).

Processing or Process means any operation or set of operations, which is performed on Personal Data, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.

Processor means the entity which Processes Personal Data on behalf of the Controller.

Security Incident means a breach of the security of Visibl’s Environment or the Client Environment resulting in the unauthorised loss, acquisition, disclosure, access, or use of Personal Data included in the Client Data.

Service Level Agreement or SLA means the description of the service levels applicable to particular Cloud Services, as specified in Schedule 3.

Service Levels means the service levels applicable to the Cloud Services as set out in the Service Level Agreement.

Sub-processor means a subcontractor engaged by Visibl or its Affiliates that will Process Personal Data as part of the performance of the Visibl Offering.

Subscription Term means the term of the Client’s right to access and use the Cloud Services and to specific Support Services, as provided in the Order Form.

Support Policy means the terms on which Visibl provides Support Services for the Cloud Services, notified by Visibl to the Client from time to time.

Support Services means the activities and services undertaken by Visibl under the Support Policy, which relate to the support provided by Visibl to the Client to remedy a problem with the operation or performance of the Cloud Services.

2 Cloud Services

2.1 Provision of Cloud Services

Subject to the Client’s compliance with the Agreement and payment of applicable Fees, Visibl shall provide the Client access to, and use of, the Cloud Services set out in an Order Form for the Subscription Term, as applicable, in accordance with the applicable Service Levels.

2.2 User Credentials

The Client shall ensure that each User is issued with individual User Credentials and that User Credentials are not shared.

2.3 Malicious Code

Both Parties shall take reasonable steps to ensure that no Malicious Code is knowingly introduced into the Cloud Services. If Malicious Code is found in or to have accessed the Cloud Services, the Party who introduced the Malicious Code will:

(a) immediately notify the other Party; and

(b) assist in reducing the effects of the Malicious Code, including restoring any loss of operational efficiency and mitigating any security risks, with the understanding that Visibl may charge additional Fees for such assistance if the introduction of the Malicious Code is attributable to the Client.

3 Interoperation

3.1 Client Materials

If the Client chooses to use any Client Materials in connection with its use of the Cloud Services, the Client grants Visibl permission to enable the providers of such Client Materials to access Client Data for the interoperation of such Client Materials with the Cloud Services, and any exchange of data or other interaction between the Client and a provider of such Client Materials is solely between the Client and such provider pursuant to any terms and conditions governing those Client Materials.

3.2 No liability

VIsibl is not responsible for any disclosure, modification or deletion of Client Data resulting from any such access by Client Materials or their providers.

4 Hosting

4.1 Hosting Provider

(a) As of the date of the Order Form, the Cloud Services are hosted by the entity(ies) specified in the Order Form (the Hosting Provider).

(b) Visibl may, at its discretion, change the Hosting Provider.

4.2 Security

The security of a Hosting Provider’s services is described in materials published by the Hosting Provider.

4.3 Suspension by Hosting Provider

(a) A Hosting Provider may suspend the hosting services for the Cloud Services as a result of the Client’s violation of the Hosting Provider’s acceptable use policy or in the circumstances set out in clause 7.2 of this Schedule but only to the extent the Hosting Provider deems reasonably necessary.

(b) Where the Hosting Provider suspends or threatens to suspend the Cloud Services as a result of the Client’s violation, Visibl will provide as much notice to the Client as possible. Visibl shall provide advance notice to the Client of suspension and the Hosting Provider’s reasons or, where advance notice is not reasonably possible, as soon as feasible after suspension and shall keep the Client appropriately updated regarding any information it receives from the Hosting Provider regarding the suspension until such suspension is resolved.

4.4 Visibl’s liability

Subject to clauses 11.1 (General Limitation of Liability) and 11.2 (Exclusion of Consequential and Related Damages) of the Terms and Conditions, Visibl’s liability to the Client for losses arising from a breach of Visibl’s obligations caused by a Hosting Provider is limited to the aggregate amount that Visibl is able to recover from such Hosting Provider (proportionately shared between affected clients of Visibl and its Affiliates).

5 Support Services

Subject to the Client’s compliance with the Agreement and payment of applicable Fees, Visibl shall provide the Client with the Support Services for the Cloud Services for the Subscription Term in accordance with the Support Policy.

6 Warranties

6.1 Visibl Warranties

Visibl warrants that the Cloud Services will perform materially in accordance with the Documentation and it will perform the Support Services materially in accordance with the Support Policy (Cloud Services Warranty).

6.2 Client Warranties

The Client warrants:

(a) it will comply with all applicable data protection laws in relation to the Client Data; and

(b) its transmission and management of Client Data through the Cloud Services:

(i) complies with all applicable laws and the Client’s privacy policies; and

(ii) does not infringe upon, misappropriate or violate the rights of any third party.

6.3 Notification of claims

The Client shall notify Visibl of any claim under the Cloud Services Warranty within ten (10) days of becoming aware of a breach of warranty.

6.4 Remedy

The Client’s exclusive remedy and Visibl’s entire liability for a breach of the Cloud Services Warranty shall be re-performance or repair of the applicable Cloud Services, or payment of the applicable service credit in accordance with the relevant Service Level Agreement (as applicable).

6.5 Exclusions

Visibl will not be in breach of any warranty, and the remedies in clause 6.4 of this Schedule shall not apply, if the alleged breach has been caused by:

(a) any use that is contrary to instructions in the Agreement or Documentation;

(b) any modifications to the Visibl Offering not performed by or on behalf of Visibl; or

6.6 Disclaimer to Cloud Services

Visibl and its Affiliates do not warrant, represent or guarantee that the Cloud Services:

(a) will be free of errors or omissions;

(b) will be uninterrupted or continuous;

(c) or their use by the Client, any Client Affiliate, or any User, will achieve any particular outcome or result (except as agreed in an Order Form); or

(d) will comply with any particular laws, standards, requirements or regulations of any government agency, professional body or any other entity.

6.7 No advice

Visibl does not provide legal advice and the Client remains responsible for compliance with the relevant laws applicable to it.

7 Monitoring and Suspension

7.1 Corrective action

If the Client becomes aware of any actual or threatened activity prohibited by the Terms and Conditions, the relevant Order Form or the Acceptable Use Policy, the Client shall, and shall cause Client Users to and will use its reasonable endeavours to procure that its End Users will, immediately:

(a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects; and

(b) notify Visibl of any such actual or threatened activity.

7.2 Suspension

Visibl may suspend access the Client’s access to and use of the Cloud Services, and/or the provision of the Support Services, with immediate effect:

(a) if the Client, its Client User or an End User are in breach of clause 2.1 of the Terms and Conditions, following notice from Visibl of non-compliance;

(b) if the Client, a Client Affiliate or the Client’s End User are in breach of clause 15.10(b)(vii) of the Terms and Conditions;

(c) if Visibl reasonably determines that the Client’s, a Client Affiliate’s or a User’s use of the Visibl Offering poses a security risk or threat to the function of the Visibl Offering, to Visibl, or to Visibl’s Hosting Provider;

(d) if required by a judicial or other governmental demand or order, subpoena, or law enforcement request;

(e) if Visibl becomes entitled to terminate the Agreement under clause 12.2 of the Terms and Conditions.

7.3 Notice of suspension

Visibl shall provide advance notice to the Client of suspension and its reasons, or where advance notice is not reasonably possible, as soon as feasible after suspension.

7.4 Restoration

If the Agreement remains in effect, Visibl shall restore access promptly upon its reasonable satisfaction that the circumstances giving rise to the suspension have been resolved.

7.5 Monitoring

Visibl may monitor the use of the Visibl Offerings to verify compliance with the Agreement.

7.6 Other notification

The Client must immediately advise Visibl if it becomes aware that any person is in breach of clauses 6, 7 or 15.10(b)(vii) of the Terms and Conditions or clauses 8 or 9 of this Schedule, and provide Visibl full details (to the extent know by the Client).

8 Client Data

8.1 Ownership of Client Data

As between Visibl and the Client, the Client exclusively owns all rights, title and interest in and to all Client Data.

8.2 Responsibility for Client Data

The Client shall be solely responsible for:

(a) the accuracy, quality and legality of Client Data;

(b) the manner in which the Client acquired Client Data;

(c) procuring any necessary consents for the Processing of Client Data by Visibl and any of its Sub-processors as permitted under the Agreement, including in the Visibl Environment;

(d) giving the individuals who are the subjects of Client Data, and any regulator or enforcement agencies, any notices required by applicable law or regulation; and

(e) ensuring that collection, use, access and storage of Client Data in the Cloud Services, any application and Client systems complies with all laws applicable to such activities, including data privacy and transfer laws.

8.3 Roles of the parties

The Parties acknowledge and agree that with regard to the Processing of Personal Data, the Client is the Controller, Visibl is the Processor, and that Visibl or its Affiliates will engage Sub-processors in connection with the provision of the Cloud Services (including the Hosting Provider).

8.4 Processing of Client Data

(a) Visibl shall only Process Personal Data in accordance with the Client’s documented instructions or as required by law. The Client hereby instructs Visibl to Process Personal Data to perform the Visibl Offering and as described in the Agreement.

(b) The countries/regions where Client Data will be hosted or from which it may be accessed are set out in the Order Form. Visibl may change those countries/regions only on prior notice.

8.5 Client Data interacting with Client Materials

If the Client chooses to use any Client Materials in connection with its use of the Cloud Services, the Client grants Visibl permission to enable the providers of such Client Materials to access Client Data for the interoperation of such Client Materials with the Cloud Services. Any exchange of data or other interaction between the Client and a provider of such Client Materials is solely between the Client and such provider pursuant to any terms and conditions governing those Client Materials. Visibl is not responsible for any disclosure, modification or deletion of Client Data resulting from any such access by Client Materials or their providers.

8.6 License for Performance

The Client grants:

(a) Visibl, its Affiliates, agents and any Third-Party Subcontractors; and

(b) any Sub-processors properly appointed in accordance with the Agreement,

a limited, non-exclusive, royalty-free, non-transferable (except as provided in clause 15.6 of the Terms and Conditions), worldwide license to access and use the Client Data and Client Materials only as necessary for Visibl’s provision of the Cloud Services.

9 Data Security and Privacy

9.1 Visibl’s Security Obligations

Visibl shall:

(a) maintain reasonable administrative, physical, and technical safeguards designed to protect the security, confidentiality, and integrity of any Client Data stored in Visibl’s Environment, including reasonable and prudent back up and disaster recovery procedures for the Client Data;

(b) comply with all data security and privacy laws applicable to its handling of Personal Data included in Client Data, subject to clause 8.2 of this Schedule (Responsibility for Client Data);

(d) not access or use the Client Data stored in Visibl’s Environment except as requested by the Client in connection with Support Services or Professional Services, as required to perform its obligations under the Agreement, or as otherwise authorised by the Client in writing, and, in each case, in compliance with the Client’s internal security policies.

For the avoidance of doubt, the Client acknowledges and agrees that Visibl is not responsible for and disclaims all liability for any Client Data that is not transmitted to or from Visibl’s Environment in the proper performance of the Cloud Services or is otherwise contained outside the Visibl’s Environment unless otherwise agreed in an Order Form.

9.2 Client’s Security Obligations

In addition to its obligations under clause 8.2 of this Schedule, the Client must:

(a) comply with all reasonable directions from Visibl from time to time in relation to the electronic and information security of the Cloud Services;

(b) comply with all Visibl policies and guidelines that relate to the electronic and information security of the Cloud Services, as updated from time to time;

(c) ensure that it does not, demonstrate, display, disclose, access, use or permit unauthorised access to, or use of, any Client Data, except to or by the Client or a Client User, or as otherwise provided under the Agreement; and

(d) to the extent the Platform is made available via the Client’s Environment: (i) maintain reasonable administrative, physical, and technical safeguards designed to protect the security, confidentiality, and integrity of any Client Data stored in the Client’s Environment, including reasonable and prudent back up and disaster recovery procedures for the Client Data; and (ii) operate and maintain a Security Incident and data loss incident response process.

9.3 Security Incidents

In the event of any actual or reasonably suspected Security Incident, each Party must:

(a) promptly, but in any case, within 24 hours of it first becoming aware of such Security Incident or beginning to suspect that such Security Incident has occurred notify the other Party of the Security Incident, provided that such notification is not an acknowledgement by the relevant Party of any fault or liability;

(b) investigate the Security Incident and provide the Client with detailed information about the Security Incident;

(c) take reasonable steps to mitigate the effects and minimize damage resulting from the Security Incident. Each Party shall cooperate with the other Party to the extent reasonably necessary to undertake that rectification, mitigation or prevention;

(d) provide reasonable cooperation to assist the other Party in the event of any notifiable Security Incident.

9.4 Visibl not liable for Client’s own security obligations

Visibl and its Affiliates will not be liable under this Agreement and Visibl will be deemed to have not breached the Agreement to the extent that the liability, breach or Security Incident arises from any of the following matters:

(a) the Client stores Client Data on systems other than the Cloud Services;

(b) the Client, any Client Affiliate or User improperly or unlawfully Processing Client Data or causing Visibl to improperly or unlawfully process Client Data;

(c) any unauthorised person gains access to the Client Data or the Cloud Services through the administration rights, personnel or systems of the Client or the Client’s Affiliates;

(d) the Client, any Client Affiliate or User fails to comply with applicable laws (including data privacy protection laws);

(e) the integration of the Cloud Services to any of the Client Materials or any solutions, services or applications that are not provided by Visibl;

(f) the Client uses content, applications or software with the Cloud Services other than content, applications or software provided or approved in writing by Visibl;

(g) the Client fails to implement updates and patches to the Cloud Services in a timely manner that are recommended by Visibl;

(h) the Client modifies the Cloud Services in a manner that causes Personal Data to appear in Cloud Services logs; or

(i) the Client fails to take all reasonable steps to secure the Client Data in its possession or control.

9.5 Client’s Personal Data

Except through Processing of Client Data, as reasonably required for the provision of the Cloud Services under this Agreement, or as requested by the Client in connection with Support Services or Professional Services, and in compliance with the Client’s internal security policies, the Client shall use reasonable endeavours to not disclose to Visibl any Personal Data.

9.6 Annual security testing

(a) For the duration of the Subscription Term, Visibl or an independent third party nominated by Visibl will test and evaluate the security of the Cloud Services by performing security testing on a regular and annual basis.

(b) Any security testing performed or provided pursuant to clause 9.6(a) of this Schedule shall be done no more than once per every twelve (12) month period of the Subscription Term.

9.7 Mutual Obligations

Each Party will:

(a) comply with any directions made by the relevant privacy regulators;

(b) co-operate with and assist the other Party with regard to any investigations or reasonable requests for information by the relevant privacy regulators in relation to the Client Data and any actual or suspected Security Incident; and

(c) comply with any other reasonable request or direction relating to compliance with applicable privacy laws which is made or given by the other Party.

10 Third-Party Components

10.1 Fourth-Party Data-Sets

(a) Where Visibl makes Third-Party Component(s) available to the Client, those Third-Party Components(s) may contain sensitive results, data or information that has been provided to the Third-Party Provider from an entity other than Visibl or its Affiliates (Fourth Party Data-Sets).

(b) Unless otherwise agreed in an Order Form, the Client must not and must ensure that each of its Client Affiliates, Client Users and End Users do not:

(i) download and/or copy any Fourth Party Data-Sets obtained from Third-Party Components; and

(ii) archive, search or obtain on demand any Fourth Party Data-Sets obtained from Third-Party Components.

10.2 Third-Party Licences

The Client acknowledges that the Cloud Services may incorporate Third-Party Components provided to Visibl which may be subject to their own end user licence agreements (Third-Party EULA). The Client agrees, where requested by Visibl and in respect of the Client and its Client Affiliates and Client Users, to take all steps required to facilitate itself (or the relevant Client Affiliate or Client User) entering into an applicable Third-Party EULA, following which the Client must promptly provide Visibl with the executed version.

10.3 Suspension by Third-Party Provider

(a) A Third-Party Provider may suspend the Third-Party Component embedded in the Cloud Services as a result of the Client being in breach or anticipated breach of the Terms and Conditions or any Third-Party EULA applicable to that Third-Party Component.

(b) Where the Third-Party Provider suspends or threatens to suspend the Third-Party Component as a result of the being in breach or anticipated breach of the Terms and Conditions or any Third-Party EULA applicable to that Third-Party Component, Visibl will provide as much notice to the Client as possible.

11 Post-Termination

11.1 Access to Data

Visibl will make available to the Client for download a file of the Client Data in text format along with attachments in their native format for a period of up to 120 days after the effective date of termination. Unless agreed otherwise in writing, Visibl shall have no obligation to maintain or provide any of the Client Data after such 120 day period and may, unless legally prohibited from doing so or unless retention is required by law or reasonably necessary for legal/compliance purposes, delete all Client Data in its systems (or otherwise in its possession or under its control).

11.2 Confidential Information

(a) Subject to clauses 11.2(b) and 11.2(c) of this Schedule, on termination or earlier expiry of this Agreement, Visibl shall immediately, at the Client’s option:

(i) destroy or permanently erase, or procure the destruction or permanent erasure of, all copies of the Client’s Confidential Information and the Client Data and confirm in writing to the Client party that such destruction or erasure has occurred; or

(ii) return, or procure the return of, all copies of the Client’s Confidential Information and the Client Data in its possession or control, or in the possession or control of any of Visibl’s employees or agents and any Hosting Provider.

(b) Clause 11.2(a) of this Schedule does not apply to:

(i) any Client’s Confidential Information or Client Data that Visibl may retain in accordance with this Agreement (including clause 8.6 of this Schedule) or any applicable Order Form;

(ii) any Client’s Confidential Information or Client Data that Visibl or its Affiliates (or their respective professional advisers) are required to retain to comply with any applicable laws, requirements of a governmental authority or insurance policy;

(iii) any records of, or documents prepared for, a meeting of the board of Visibl or its Affiliates, or a committee of the board to the extent that such records or documents contain the level of detail consistent with the normal practices of the relevant board or committee; or

(iv) documents stored on a back-up server for bona fide back-up, security and data recovery purposes,
provided that such information that is retained remains subject to the confidentiality obligations set out in these Terms and Conditions.

(c) To the extent Visibl is aware of, or is notified by the Client of, any Client’s Confidential Information or Client Data that the Client or its Affiliates (or their respective professional advisers) are required to retain to comply with any applicable laws, requirements of a governmental authority or insurance policy, clause 11.2(a)(i) of this Schedule shall not apply and Visibl must return, or procure the return of, all copies of the relevant Confidential Information and Client Data in accordance with clause 11.2(a)(ii) of this Schedule.

11.3 Surviving Provisions

Clauses 4.4 and 10 of this Schedule and any other provision which is intended to survive termination or expressly stated elsewhere in the Agreement as surviving termination, shall survive any termination or expiration of an Agreement.

Schedule 2 – Professional Services Schedule

This Professional Services Schedule applies to any Professional Services provided by Visibl to the Client under a Services Order, and supplements and is incorporated by reference into the Terms and Conditions. Terms defined in the Terms and Conditions apply to this Professional Services Schedule.

1 Professional Services

1.1 Provision of Professional Services

Subject to the Client’s compliance with the Agreement and payment of applicable Fees, Visibl shall provide the Client with the Professional Services set out in a Services Order.

1.2 Services Orders

Services Orders shall set out:

(a) a description of the Professional Services; and

(b) the Fees for the provision of the Professional Services.

2 Client Obligations and Dependencies

2.1 General Client obligations

The Client shall, in a timely manner:

(a) provide Visibl with all information, assistance, participation, engagement and decision making; and

(b) perform any tasks, activities or obligations in the agreed Services Order,

in each case as Visibl considers reasonably necessary to provide the Professional Services.

2.2 Client personnel

The Client shall assign personnel of appropriate experience to perform and fulfill its obligations under the Services Order.

2.3 Consents

The Client shall ensure it has all consents and license rights in relation to:

(a) all hardware, software, content or information within its IT environment or otherwise provided to Visibl; and

(b) all documents, information, data and other materials it provides to Visibl,

for Visibl to provide the Professional Services (and where relevant, the Client sublicenses such rights to Visibl for that purpose) and for the Client to receive the Professional Services.

3 Fees and expenses

3.1 Fees subject to Terms and Conditions

Fees for Professional Services agreed under a Services Order shall be paid by the Client in accordance with the Terms and Conditions. Any Fees will be invoiced monthly in arrears unless otherwise specified in a Services Order.

Schedule 3 – Service Level Agreement

This Schedule sets out the availability service level that applies to the Cloud Services. It supplements, and is incorporated by reference into, the Terms and Conditions. Defined terms in the Terms and Conditions have the same meaning in this Schedule.

1 Application of this Schedule

1.1 Plus tier only

This Schedule applies only where the Order Form specifies that the Client has subscribed to the "Plus" tier of the Cloud Services.

1.2 Starter and Professional tiers.

If the Order Form specifies the "Starter" tier or the "Professional" tier, no service level, uptime commitment, availability target or service credit applies to the Cloud Services, and this Schedule does not form part of the Agreement for that Order Form. The Cloud Services at those tiers are provided on a reasonable-efforts basis only.

1.3 Sole remedy

Where this Schedule applies, the Service Credits in clause 3 are the Client's sole and exclusive remedy, and Visibl's sole liability, for any failure to meet the Uptime Commitment or for any unavailability of the Cloud Services. This clause operates subject to clauses 11.1 and 11.2 of the Terms and Conditions.

2 Definitions and interpretation

2.1 Additional Definitions

In this Schedule:

FrankieOne means Frankie Financial Pty Ltd ACN 623 506 892.

Monthly Uptime Percentage is calculated by subtracting from 100% the percentage of minutes during the calendar month in which the Cloud Services were unavailable or not accessible due to Visibl’s fault.

Platform Fees means the fee payable for the Cloud Services and excludes any fees for KYC verification, KYB verification, KYB UBO verification, KYC Escalation to AML Consultant and High-Risk Escalation.

Service Credit means a credit calculated in accordance with clause 3.2 of this Service Level Agreement.

Service Level Agreement means this Schedule 3.

Uptime Requirement has the meaning given in clause 3.1(a) of this Service Level Agreement.

3 Service Commitments

3.1 Cloud Services

Subject to clauses 3.3 and 3.4 of this Service Level Agreement:

(a) Visibl will use commercially reasonable endeavours to make the Cloud Services available with a Monthly Uptime Percentage of at least 99.5% during each month of the Term (Uptime Requirement); and

(b) if Visibl does not meet the Uptime Requirement, the Client will be eligible to receive a Service Credit in accordance with clause 3.2 of this Service Level Agreement.

3.2 Service Credits

(a) If Visibl fails to meet the Uptime Requirement in any given month of the Term, the Client may, subject to clauses 3.2(b) and 3.2(c), claim a Service credit against future Platform Fees for the next billing month, provided that no such Service Credit will be provided for the first month in which such failure occurs.

Availability of Cloud Services (Calendar Month)	Service Credit
<99.5% and ≥ 99%	5%
< 99.0% and ≥ 97.0%	10%
<97.0%	15%

(b) The total Service Credits claimable for any billing month cannot exceed 15% of the Platform Fee for that billing month.

(c) To claim a Service Credit, the Client must submit a written claim to Visibl at the email address specified in the Order Form (or otherwise notified by Visibl) within 30 days after the end of the billing month to which the claim relates. The claim must identify the billing month, the alleged downtime, and any supporting information the Client has. Visibl will determine eligibility for Service Credits using its own system records, which will be conclusive (absent manifest error).

(d) Approved Service Credits are applied as a credit against the next invoice issued to the Client for the Cloud Services. Service Credits are not refundable for cash, are not transferable between Order Forms, and lapse on termination or expiry of the Agreement.

(e) Only the single highest Service Credit band that applies in a billing month is payable for that billing month. Service Credits are not cumulative across bands.

3.3 Excluded downtime

The Uptime Requirement does not apply to any unavailability of the Cloud Services arising from:

(a) suspension or termination of the Client’s access to the Cloud Services by Visibl in accordance with its rights under the Terms and Conditions;

(b) factors outside of the reasonable control of Visibl, including any Force Majeure Event, internet access, or problems beyond Visibl’s Environment;

(c) unavailability caused by the Hosting Provider, or by any other third-party subcontractor or sub-processor, to the extent the cause is not within Visibl's direct control;

(d) unavailability or degradation of any Third-Party Component (including any component provided by Frankie Financial Pty Ltd ACN 623 506 892 or any replacement provider), or any failure caused by the actions or inactions of a Third-Party Provider;

(e) any actions or inactions of the Client, a Client Affiliate, a User or an End User that are contrary to the Terms and Conditions, including the Acceptable Use Policy;

(f) equipment, software or other technology of the Client or any third party (other than third party equipment within Visibl’s direct control);

(g) scheduled maintenance of which the Client is notified at least five (5) days in advance; or

(h) emergency maintenance of which the Client has been notified soon after or during the maintenance.

4 No other service levels

For clarity, this Schedule covers Cloud Services availability only. No service level applies to Support Services, Professional Services, response times, incident restoration times, performance, throughput, accuracy of Third-Party Component outputs, or any other aspect of the Visibl Offering, unless expressly agreed in writing in an Order Form.