Master Subscription Service Terms

These Master Subscription Service Terms are made between the client identified in the Order Form (the “Client”) and Fleet Complete Australia Pty Ltd (“Fleet Complete” or “FC”)

For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Fleet Complete and Client hereby agree as follows:

1. DEFINITIONS

Capitalized terms not defined herein shall have the meaning given in the Order Form.

The following terms shall have the following meanings respectively:

“Activation” means the activation of Subscribers on the telematics service provider network.

“Agreement” means the Order Form and (i) these Master Subscription Service Terms; (ii) End User License Agreement (including but not limited to the); (iii) Product Hardware Warranty; (iv) Self-Installation Limited Liability Agreement; (v) Support Terms; and, (vi) Third Party Product Terms, and all of the foregoing can be found at www.fleetcomplete.com.au/legal, as may be amended from time to time in accordance with their terms.

“Asset Faults” has the meaning ascribed thereto in Section 3.5(c).

“Client” has the meaning ascribed thereto in the preamble.

“Client Data” means any data or information (a) including Personal Information (as hereinafter defined), (b) relating to an identifiable Vehicle or Vehicle Operator, (c) submitted to the Service by Client or Vehicle Operators, or (d) otherwise collected, accessed, used, disclosed, created, generated or stored by, through or in connection with the Service and transmitted to, uploaded to and/or stored on FC servers for use with the Service.

“Confidential Information” has the meaning ascribed thereto in Section 7.

“Contract Term” has the meaning ascribed thereto in Section 4.1.

“Data Protection Laws” means all laws and regulations, including laws and regulations of Canada (including the Personal Information Protection and Electronic Documents Act (Canada) and the Canadian Anti-Spam Legislation), Australia, the European Union, the European Economic Area and their member states, Switzerland and the United Kingdom, including the GDPR, applicable to the Processing of Personal Information under the Agreement.

“FC EULA” means the FC End User License Agreement located at https://www.fleetcomplete.com.au/legal/fc-end-user-license-agreement/, as may be amended from time to time, and which is incorporated herein by reference.

“Fees” means any and all amount(s) owed by Client to Fleet Complete in accordance with this Agreement, including the Recurring Fees.

“Fleet Complete” or “FC” has the meaning ascribed thereto in the preamble.

“Hardware” means any mobile electronic device, mobile phone, mobile data terminal, or mobile asset (including vehicles, trailers or containers), installed modem, related sensors and other equipment or accessories onto which a mobile application has been embedded, installed or which is used to access a mobile application and which is required to use the Service as intended as described in the Documentation.

“Initial Contract Term” has the meaning ascribed thereto in Section 4.1.

“Installation” shall mean the installation of Hardware (and accessories, as necessary) in the Client’s vehicles or assets, and the Activation and provisioning of Subscribers.

“Installer” has the meaning ascribed thereto in Section 3.4.

“Location Data” means data that is about or relates to the geographical location, heading, speed or similar information relating to Vehicles on which a Subscriber has been installed and activated on the Service.

“Notice” has the meaning ascribed thereto in Section 11.13.

“Order” means an Order Form signed by Client and accepted by Fleet Complete.

“Order Form” means Fleet Complete’s form of ordering document pursuant to which Client may order Subscriptions, Hardware and accessories and additional services.

“Parties” means Fleet Complete and Client collectively.

“Party” means Fleet Complete or Client individually.

“Personal Information” means any information relating to an identified or identifiable natural person as defined under applicable Data Protection Laws.

“Provisioning Date” has the meaning ascribed thereto in Section 4.1.

“Recurring Fee” means the recurring fees payable by Client for Subscription and Hardware solutions, Hardware accessories or other services in accordance with payment frequency all as specified in the applicable Order Form.

“Renewal Term” has the meaning ascribed thereto in Section 4.1.

“Service” has the meaning ascribed thereto in the FC EULA or Third Party Product Terms, as applicable.

“Software” means FC’s proprietary Fleet Complete® application and the software installed on the Subscribers and other Hardware or Third Party Product software, as applicable.

“Subscriber” has the meaning ascribed thereto in the FC EULA.

“Subscription” means the right granted by Fleet Complete to Client to access and use the relevant Service in accordance with the terms of this Agreement, for use in connection with the Hardware and for the Contract Term specified in the applicable Order Form.

“Support Services” means the applicable support services as https://www.fleetcomplete.com.au/legal/direct-sales-support-and-maintenance-services-terms/, as may be amended from time to time, and which are incorporated herein by reference.

“Taxes” has the meaning ascribed thereto in Section 6.

“Telematics Data” means Client Data that is about or relates to a Vehicle Operator’s behaviour and a Vehicle’s performance, such as acceleration, braking, turning and includes Location Data.

“Third Party Products” means products and services not developed by Fleet Complete that Fleet Complete acts as reseller of.

“Third Party Product Terms” means the then-current terms that govern one or more specific Third Party Products as stated at https://www.fleetcomplete.com.au/legal/third-party-product-terms/, as may be amended from time to time, and which are incorporated herein by reference.

“Total Upfront Fee” is the total upfront fee specified on the Order Form.

“Vehicle” means a vehicle or mobile asset that is connected to and activated on the Service.

“Vehicle Operator” means a natural person who uses or operates a Vehicle.

2. SUBSCRIPTION LICENSE GRANT

2.1 Fleet Complete (or the respective licensor of Third Party Products) licenses the Subscription to Client in accordance with the terms and conditions of the FC EULA or Third Party Product Terms, as applicable.

3. HARDWARE SHIPMENT AND INSTALLATION

3.1 Shipping and Title. Risk of loss or damage to the Hardware, will pass to Client when Fleet Complete delivers such material to the shipping carrier. Title to the Hardware will pass to Client upon Fleet Complete receiving payment in full from Client for such Hardware provided that Fleet Complete’s and/or its licensor’s title and rights to the embedded or installed software and all associated intellectual property rights therein remain with Fleet Complete and/or its licensor’s , as applicable, and do not transfer to Client. Unless otherwise agreed in the Order Form, Fleet Complete will deliver the Hardware being shipped freight prepaid provided Client has fully paid the Total Upfront Fee.

3.2 Delivery dates are Estimates Only. Standard orders are normally shipped within two (2) to four (4) business days, however, shipping and delivery dates are not guaranteed and may be subject to change without notice.

3.3 Hardware Installation and Provisioning. Client shall be solely responsible for (i) Installation, unless Installation is purchased from Fleet Complete and included in the Order; and (ii) integration of the Subscriber with any other hardware and software applications not purchased from Fleet Complete, any such integration being at Client’s sole risk and cost.

3.4 Installers. If an Installation service is purchased from Fleet Complete, it will be performed by Fleet Complete’s authorized contractor (“Installer”) subject to Client’s compliance with the requirements of Section 3.5 below. Client acknowledges that the Installation services purchased from Fleet Complete are performed by independent contractors and not Fleet Complete employees and the Client acknowledges that Fleet Complete shall have no liability as a result of any act or omission on the part of the Installer. Such contractors are not contracted by Fleet Complete to perform any additional services for Client during the course of Installation. Any additional services or equipment purchased from such contractors will be at the sole additional expense and risk of Client, including without limitation any repairs and/or replacement carried out by Installer which are not covered under the applicable hardware warranty.

3.5 Installation Process.

(a) Standard Installation hours are between 7:00 a.m. and 5:00 p.m., Monday through Friday, Client’s local time. Fleet Complete or its Installer will contact the Client to schedule the Installation date once the Order is processed by Fleet Complete.

(b) Hardware will be shipped to the Client’s designated location in advance of the Installation date. Client will be required to receive and securely store the Hardware, and then make it available to the Installer at the scheduled location on the Installation date.

(c) All vehicles or assets must be placed in a single designated location and access provided to the Installer. Vehicles or assets must be free of any mechanical, electrical or other problems (“Asset Faults”) that would prevent or materially hamper or delay performance of Installation. If any Asset Fault prevents Installation at the scheduled time and location, the Installer will not complete Installation.

(d) Client shall provide a safe, secure, and dry work environment with protection from inclement weather at the installation site and access to adequate power source. Client shall not in any manner interfere with the Installer performing the Installation.

(e) Client shall provide an on-site contact.

(f) Client acknowledges that the Installer may modify or alter Client’s vehicles/assets, including without limitation drill holes, cut panels and body, or perform rewiring. Fleet Complete will not be responsible for subsequent restoration of Client’s vehicles to their unmodified or unaltered condition. Legacy equipment that is uninstalled from vehicles in order to enable Installation is not included in the Installation fee(s) quoted to Client, and Client will be responsible for all such additional fees. Neither Fleet Complete nor the Installer will have any responsibility for legacy equipment which will be delivered to Client’s on-site contact during the scheduled Installation.

(g) Client will additionally be responsible to pay for all travel related expenses including overnight accommodations, incurred by Installer in conjunction with Installation, in accordance with Installer’s or Fleet Complete’s travel and expense reimbursement policies. Client shall also be responsible for any Installer fees for any Installer site visit notwithstanding an Asset Fault or the Installer being unable to complete the Installer due to the relevant vehicle not being provided.

4. TERM

4.1 Term. The term of the Agreement shall commence on the earlier of the date the Order Form is signed by the Client or the effective date listed on the Order Form (once the Order Form is signed) and will continue for the term and renewal term of the Subscription(s). The Subscription(s) shall commence on the date the Subscription is enabled on the Fleet Complete or a Third Party Products provider’s servers, as applicable (the “Provisioning Date”) and, unless terminated earlier pursuant to this Agreement’s express provisions, the Subscription(s) will continue in effect for the ‘Initial Contract Term’ identified in the Order Form or, where no ‘Initial Contract Term’ is listed on an Order Form, for twelve (12) months (“Initial Contract Term”). The Subscription(s) will automatically renew on month-to-month basis unless earlier terminated pursuant to this Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term (each a “Renewal Term” and together with the Initial Contract Term, the “Contract Term”).

4.2 Termination. Fleet Complete may terminate this Agreement if: (i) it has provided written notice to Client of the claimed breach and the Client fails to correct such breach to the reasonable satisfaction of Fleet Complete within thirty (30) days of receiving such notice; (ii) proceedings under bankruptcy or similar insolvency laws are instituted by or against Client and are not dismissed within sixty (60) days, Client makes an assignment for the benefit of its creditors, or a receiver, liquidator or similar officer is appointed for the business, property, affairs or revenues of Client and such proceedings continue for thirty (30) days; or (iii) the Client’s data usage is excessive or unreasonable, as determined by Fleet Complete in its sole and absolute discretion. If Client fails to pay the amounts invoiced in respect of the Service, Client shall be deemed to have materially breached this Agreement. If Fleet Complete terminates this Agreement for Client’s non-payment, Client must pay within thirty (30) days all amounts which have accrued prior to such termination, as well as all amounts payable by Client on account of the remainder of the then-current Contract Term (even if earlier terminated) for all Orders under this Agreement.

4.3 Obligations on Termination. Upon the termination of this Agreement, Client shall forthwith discontinue the use of the Service.

5. FEES AND PAYMENT

5.1 Fees. The fees set out in the Order Form are exclusive of certain additional charges described in this Agreement, and any applicable taxes unless otherwise stated.

5.2 Additional Fees. Please see the additional fees that are applicable to Client under this Agreement at www.fleetcomplete.com.au/feetransparency. In addition, certain circumstances additional fees for installation(s) and/or excessive Client data usage in relation to the Services may apply.

5.3 Price Escalation. All Fees payable by a Client shall apply during the Contract Term provided that Client agrees that once per year during the Contract Term Fleet Complete reserves the right at its sole discretion to increase Fees and/or introduce new fees, in both instances by providing written notice to Client at least thirty (30) calendar days prior to the effective date of such Fee increase or fee introduction and in accordance with Section 11.2 of these Master Subscription Service Terms. No increase in Fees or introduction of a new fee is effective unless made in compliance with the provisions of this Section 5.3. Client acknowledges that allowing Fleet Complete flexibility to raise Fees or introduce new fees in accordance with this Section 5.3 is in the Client’s as well as the Fleet Complete’s interest, as it allows for Fleet Complete’s continual commitment to provide services during the Contract Term.

5.4 Payment Due Dates. Unless otherwise stated in the Order Form, the Fees shall be invoiced in arrears on a pro rata calendar month basis by Fleet Complete and all payments are due within thirty (30) days of the invoice date. If a Fee is not paid by its due date, then:

(a) without limiting Fleet Complete’s other rights and remedies: (i) Fleet Complete may charge interest on the past due amount at the rate of eighteen percent (18%) per annum/one and half percent (1.5%) per month, or, if higher, the maximum amount permitted under applicable law; and, (ii) Client shall reimburse Fleet Complete for all reasonable costs incurred by Fleet Complete in collecting any late payments or interest, including legal fees, court costs, and collection agency fees; and/or,

(b) if payment is overdue by more than fifteen (15) days, then Fleet Complete may immediately suspend Client’s license access to and use of the Service if Client fails to make any payment due in respect of the Service and does not cure such non-payment within ten (10) business days after receiving notice of such failure. Any suspension of the licensed rights hereunder by Fleet Complete under the preceding sentence shall not excuse Client from its obligation to make all payment(s) under the Agreement.

(c) Fleet Complete may terminate this Agreement pursuant to section 4.2.

5.5 NO REFUNDS. UNLESS PROHIBITED BY APPLICABLE LAW, ANY AND ALL PAYMENTS RECEIVED BY FLEET COMPLETE ARE FINAL AND NON-REFUNDABLE.

5.6 Early Termination Fee. In the event the Client terminates or purports to terminate the Agreement prior to the end of the then current Contract Term other than as may be permitted in the Agreement, Client shall pay Fleet Complete the total aggregate amount of the Recurring Fee(s) multiplied by the number of months remaining in the then-current Contract Term, plus applicable taxes and any other applicable Fees (“Early Termination Fee”). The Parties intend the Early Termination Fee to constitute compensation and not a penalty. The Parties acknowledge and agree that the Early Termination Fee is a reasonable estimate of the anticipated or actual harm or actual damages that might arise from a Client terminating the Agreement early.

5.7 Invoices. Unless otherwise stated in the Order Form, the Total Upfront Fee will be invoiced upon acceptance of the executed Order Form by Fleet Complete and must be paid by the Client in accordance with the payments herein.

5.8 Credit Checks. Client hereby consents to Fleet Complete conducting a credit rating check on the Client.

6. TAXES

All prices and rates on an Order Form, or for any additional charges due or for the Service or other services to be provided, do not include present and future personal property, sales, use, excise, GST, service charge, value-added, franchise, license, gross receipts or other foreign, federal, state, provincial or local fees, taxes, duties or similar taxes or charges (collectively “Taxes”), which shall be paid by Client (except for taxes based on the net income of Fleet Complete). If applicable, Client may provide Fleet Complete with a tax exemption certificate annually that is acceptable to applicable taxing authorities. Client will indemnify and hold Fleet Complete harmless from all claims, liability and expense arising from Client’s failure to pay any such Taxes, including interest, penalties and similar fees.

7. CLIENT CONFIDENTIALITY OBLIGATIONS

The Service, in particular the Software, including without limitation, the specific design, structure and logic of individual programs, their interactions both internal and external, and the programming techniques employed therein are considered confidential and trade secrets of Fleet Complete and/or its licensors (the “Confidential Information”), the unauthorized disclosure of which would cause irreparable harm to FC and/or its licensors. Client shall use the same degree of care and means that it uses to protect its own information of a similar nature, and in any event, shall use reasonable efforts to prevent the disclosure of Confidential Information to any third parties. Client shall not use, reproduce or distribute the Confidential Information other than for the purposes authorized by this Agreement. This confidentiality obligation shall continue to apply to the Confidential Information following the termination hereof, provided that the confidentiality provisions contained herein shall not apply to Confidential Information which (i) was known by Client prior to disclosure, as evidenced by its business records; (ii) was lawfully in the public domain prior to its disclosure, or becomes publicly available other than through a breach of the confidentiality provisions contained herein; (iii) was disclosed to Client by a third party, provided such third party or any other party from whom such third party receives such information is not in breach of any confidentiality obligation in respect of such information; or (iv) is disclosed when such disclosure is compelled pursuant to legal, judicial, or administrative proceeding, or otherwise required by law, provided that Client shall give all reasonable prior notice to Fleet Complete to allow it to seek protective or other court orders.

8. LIMITED HARDWARE WARRANTY

8.1 Hardware Warranty. Unless otherwise stated in the Third Party Product Terms, Fleet Complete warrants the Hardware in accordance with Fleet Complete’s hardware warranty, a copy of which is available at https://www.fleetcomplete.com.au/legal/limited-hardware-warranty/.

8.2 No Warranty for Evaluations. IF CLIENT IS EVALUATING THE SERVICE THEN THE SERVICE AND DOCUMENTATION IS PROVIDED TO CLIENT BY FLEET COMPLETE ON AN “AS IS” BASIS, WITHOUT ANY WARRANTIES OR CONDITIONS OF ANY KIND.

8.3 Warranty Disclaimer. TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN THIS SECTION 8, THE HARDWARE IS PROVIDED ON AN “AS IS” BASIS, WITHOUT ANY OTHER REPRESENTATIONS, WARRANTIES, OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO REPRESENTATIONS, WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, OR THOSE ARISING BY LAW, USAGE OF TRADE OR COURSE OF DEALING. FLEET COMPLETE DOES NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF USE, OF THE HARDWARE IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, CURRENCY, OR OTHERWISE. FLEET COMPLETE DOES NOT OTHERWISE WARRANT THAT THE SERVICE WILL MEET CLIENT’S REQUIREMENTS THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL ERRORS WILL BE CORRECTED.

9. LIMITATION OF LIABILITY

SUBJECT TO THE FC EULA WHICH HAS ITS OWN LIMITATION OF LIABILITY PROVISION AND ANY THIRD PARTY PRODUCT TERMS WHERE APPLICABLE:
9.1 Indirect Damages. EXCEPT FOR A BREACH OF SECTIONS 7 AND/OR 10 HEREOF, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES (INCLUDING FOR LOSS OF USE, DATA, BUSINESS, LOSS OF GOODWILL, REPUTATION, CREDIT OR PUBLICITY, LOSS OF REVENUE AND INTEREST, PROFITS, OR ANTICIPATED PROFITS AND CLAIMS FOR SUCH DAMAGES BY A THIRD PARTY) RELATED TO OR ARISING OUT OF THIS AGREEMENT, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, WHETHER IN AN ACTION IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR SUCH DAMAGE WAS REASONABLY FORESEEABLE.

9.2 Direct Damages. THE TOTAL LIABILITY OF FLEET COMPLETE FOR ANY CLAIM FOR DIRECT DAMAGES RELATED TO OR ARISING OUT OF THIS AGREEMENT, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, WHETHER IN AN ACTION IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT FLEET COMPLETE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE REASONABLY FORESEEABLE, SHALL NOT EXCEED THE FEES PAID BY THE CLIENT TO FLEET COMPLETE FOR THE SERVICE HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.

9.3 Non-Excludable Warranties. TO THE EXTENT PERMITTED BY LAW, FC’S LIABILITY FOR ANY CLAIM ARISING FROM A BREACH OF ANY TERM OR CONDITION IMPLIED BY STATUTE WHICH CANNOT BY LAW BE EXCLUDED IS LIMITED, AT FLEET COMPLETE’S OPTION:

(a) IF THE BREACH RELATES TO GOODS, TO THE REPLACEMENT OR REPAIR OF THE GOODS OR THE SUPPLY OF EQUIVALENT GOODS, OR THE PAYMENT OF THE COST OF REPLACEMENT OR REPAIR OF THE GOODS OR THE SUPPLY OF EQUIVALENT GOODS; AND,
(b) IF THE BREACH RELATES TO SERVICES, TO THE SUPPLYING OF THE SERVICES AGAIN OR THE PAYMENT OF THE COST OF HAVING THE SERVICES SUPPLIED AGAIN.

10. VEHICLE OPERATOR NOTICE AND CONSENT

Client shall, prior to each Vehicle Operator’s use of a Vehicle connected to and activated with the Service: (a) inform such Vehicle Operator of Client’s use of the Service, and/or any similar Third Party Products and related Third Party Product Terms, including the resulting collection, use and sharing disclosure to FC and any reseller by Client and/or Third Party Products providers of any and all Client Data, including Telematics Data and Personal Information relating to such Vehicle Operator and the Vehicle; (b) obtain such Vehicle Operator’s express consent (or ensure the existence and applicability of any other valid legal ground as appropriate under the Data Protection Laws) to such use of the Service, Third Party Products and related Third Party Product Terms, Client Data, Telematics Data and Vehicle Operator Personal Information, in accordance with applicable Data Protection Laws; (c) if consent is used as a legal basis under the Data Protection Laws, create employment conditions whereby consent is provided freely and not under any fear of reprisals or disadvantage for not consenting; and, (d) ensure that the use of a Service by a Vehicle Operator complies with all applicable laws including relating to employee surveillance, including any notification requirements, and the Client shall be permitted to affix any appropriate notice to the exterior of the Hardware and within view of Vehicle Operator’s and any passengers to the extent that such notice is required by law.

11. GENERAL PROVISIONS

11.1 Non-Disparagement. Client shall not indirectly or directly, disparage Fleet Complete or any affiliated company, including after termination of this Agreement.

11.2 Amendments. No amendment to any portion of this Agreement shall be binding upon the Parties unless in writing signed by both Parties provided that notwithstanding the foregoing Client acknowledges and agrees that FC has the right, in FC’s sole discretion, to modify this Agreement from time to time, and that modified terms become effective upon posting. Client will be notified of modifications through notifications or posts on www.fleetcomplete.com.au or via direct email communication from FC. Client is responsible for reviewing and becoming familiar with any such modifications. Client’s continued use of the Services after the effective date of the modifications will be deemed as acceptance of the modified terms. FC will provide at least thirty (30) days’ advance notice of changes to existing Fees or the introduction of any new fees.

11.3 Assignment. Client may not assign the whole or any part of this Agreement without prior written consent by Fleet Complete. Notwithstanding the foregoing, Client may assign this Agreement or any of its rights or obligations hereunder to an affiliated entity or to a third party in connection with the sale of all or substantially all of its business or assets relating to this Agreement, whether by merger, sale of stock or shares, sale of assets, or otherwise, without the prior written consent of Fleet Complete, provided that the assignee agrees to assume all of the assignor’s obligations under this Agreement.

11.4 Entire Agreement. This Agreement constitutes the entire agreement between the Parties concerning the subject matter hereof, and supersedes and replaces any prior verbal agreements or other understandings, whether written or oral between the Parties and any terms and conditions presented by the Client shall not be recognized by Fleet Complete. In the event of any inconsistency or conflict between the statements made in Agreement, the following order of precedence governs: (i) Third Party Product Terms (ii) the Order Form (iii) Master Subscription Service Terms; (iv) End User License Agreement; (v) Product Hardware Warranty; (vi) Self-Installation Limited Liability Agreement; (vii) Support Terms.

11.5 Further Assurances. The Parties agree to execute such further documents and to perform such further acts, from time to time, as may be necessary or desirable to give full effect to the letter and spirit of this Agreement. Any changes to this Agreement must be authorized and agreed upon by both parties and documented as amendments to this Agreement.

11.6 Class Action Waiver. To the extent permitted by applicable law, Client agrees that any proceedings to resolve any dispute arising from or relating to the Agreement or Client’s use of the Services in any forum will be conducted solely on an individual basis and not as a class action, consolidated action, private attorney general action, or other representative action and Client expressly waives its right to file a class action, participate in a class action, or seek relief on a class basis.

11.7 Governing Law. This Agreement will be governed by and construed under the laws of the State of South Australia, and the federal laws of Australia applicable therein and any legal suit, action, litigation, or proceeding of any kind whatsoever in any way arising out of, from or relating to this Agreement, the services provided hereunder, and all contemplated transactions, shall be instituted in the courts of the State of South Australia, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, litigation, or proceeding. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement or the transactions contemplated hereunder.

11.8 Statute of Limitations. Where permitted by applicable law, Client hereby agrees that any claim by Client under this Agreement must be brought within one (1) year of the act giving rise to the claim.

11.9 No Waiver. Any failure by any Party to exercise its rights, powers or remedies hereunder or any delay by such Party in the exercise of any of its rights and remedies hereunder shall not, to the extent permitted by law, operate as a waiver or variation of such or any other right or remedy hereunder.

11.10 Enurement. This Agreement shall be binding upon and enure to the benefit of the respective Parties hereto, their heirs or legal representatives, successors and permitted assignees.

11.11 Survival. Provisions of this Agreement, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Sections 1, 4.3, 5, 6, 7, 8, 9, 10, 11 of these Master Subscription Service Terms.

11.12 Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on in the Order Form document (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). Notices sent in accordance with this Section will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; and (c) on the third (3rd) day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.

11.13 Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

11.14 Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other party in any manner whatsoever.

11.15 Equitable Relief. Client acknowledges and agrees that a breach or threatened breach by Client of any of its obligations under Sections 2, 7 or 10 would cause FC irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, FC will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

11.16 Interpretation. In this Agreement, unless a contrary intention appears: (i) the terms “hereof”, “hereunder” and similar expressions refer to this Agreement and not to any particular portion hereof and include any agreement supplemental hereto; (ii) words importing a singular number only shall include the plural and vice versa; (iii) the term “including” means “including without limitation”; (iv) other grammatical forms of defined words or expressions have corresponding meanings; (v) a reference to an article, section, document or agreement, including this Agreement, includes a reference to that section, document or agreement as amended from time to time, as permitted hereunder; and (vi) the division of this Agreement into sections and the insertion of headings are for convenient reference only, and shall affect neither the construction nor the interpretation of this Agreement. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted.

[END OF THE MASTER SUBSCRIPTION SERVICE TERMS]

Last updated: March 29, 2023