ACL means the Australian Consumer Law under the Consumer and Competition Act 2010 (Cth) as amended.

Business Day means a day on which banking institutions are generally open for business in New South Wales but excluding Saturdays, Sundays and public holidays.

Client means the person to whom Otus is contracted to provide the Services and who is responsible for payment of the Fees for the Services.

Contract means the contract between Otus and the Client comprising these Terms and Conditions and the Proposal (attached at Annexure A).

Dispute means a dispute arising between Otus and the Client in relation to the meaning or effect of this Contract or anything done or purported to be done by a party under this Contract,

Fees means the fees payable to Otus for the Services, as detailed in the Proposal.

Intellectual Property Rights means all intellectual property rights and includes:

• copyright, patents, trademarks, designs, trade secrets, know-how, inventions, discoveries and any right to have confidential information kept confidential;
• any application or right to apply for registration of any of the rights referred to in paragraph (a); and
• all rights of a similar nature to any of the rights in paragraphs (a) and (b) which may subsist in Australia or elsewhere,

whether or not such rights are registered or capable of being registered.

Otus means Otus Intelligence Group Pty Ltd (ABN 19 611 368 800) of Level 5, 4 Columbia Circuit, Norwest, NSW 2153.

Proposal means a proposal and quotation given by Otus to the Client in relation to the provision of the Services, which is to be attached as Annexure A and forms part of this contract.

Report means the report (or reports) to be prepared by Otus as part of the Services, which will be in Pdf version or available online, as further described in the Proposal at Annexure A.

Services means the use and processing of Remote Sensing Services and preparation of the Report including the mapping interface to be provided by Otus, as further detailed in the Proposal.

Site means the site in respect of which the Services are to be provided, as set out in the Proposal.

2.1 Subject to clause 2.2, this contract begins on the Commencement Date contained in item 2 of Schedule 1 and ends on the date that all of the services have been provided by Otus, unless terminated earlier in accordance with the terms of this contract (Contract Period).

2.2 The Contract Period may be extended for a further period as agreed by the parties, such agreement to be evidenced in writing.

3.1 This Contract constitutes the entire agreement between the parties relating to its subject matter and supersedes any previous agreement.

3.2 Until payment is made and the contract is executed by both parties Otus may, without incurring any liability, revise or withdraw the Proposal at any time prior to execution or payment.

3.3 Variation to Contract No variation to this Contract will be binding unless agreed in writing by the parties.

3.4 Priority In the event of a conflict between these Terms and Conditions and the terms set out in the Proposal, the terms set out in the Proposal shall take precedence.

4.1 Otus will provide the Services:

• (a) in accordance with the requirements of Australian Consumer Law to the extent applicable;
• (b) as set out in this contract, including the Proposal;
• (c) to a high standard in accordance with professional standards of conduct and with reasonable care and skill; and
• (d) in accordance with any timeframes agreed by the parties.

4.2 Otus reserves the right to subcontract the provision of any of the Services.

5.1 Each party represents and warrants that it has the right to enter into this contract.

6.1 The Client will, as soon as practicable following the commencement of this contract, provide Otus with all information, documents and any particulars of the Client’s requirements, as set out in the Proposal or otherwise reasonably requested by Otus.

6.2 If reasonably required for the provision of the Services, the Client agrees to provide access to the Site at such dates and times as may be agreed by the parties.

6.3 The Client acknowledges that Otus will rely on the accuracy of any information, documents, particulars and drawings provided by the Client.

7.1 If required, the parties agree to meet to discuss progress with respect to the Services at such times and in such manner as agreed by the parties.

8.1 The Client agrees to pay the Fee for the provision of the Services as set out in the Proposal.

8.2 Invoices will be issued, and must be paid by the Client, within 30 days of issues, unless such other period is agreed by the parties.

8.3 Fees with respect to any taxable supply are exclusive of GST.

8.4 The Client is not entitled to withhold payment or make any deduction from the Fees in respect of any set-off, counter-claim or Dispute.

8.5 If the Client fails to pay the Fees or any other sum payable under the Contract, Otus will be entitled to charge interest on the outstanding sum from the date when due until payment at the rate of two per centum per annum above the maximum overdraft rate of Otus’s bankers for the time being in force.

9.1 In the event that the Services are defective and the ACL applies, Otus agrees, at the Client’s election, to resupply the Services or to provide a refund.

10.1 Nothing in the Contract excludes, restricts or modifies any condition, warranty, statutory guarantee, right or remedy implied or imposed by common law, statute or regulation which cannot be lawfully excluded, restricted or modified, which may include the Australian Consumer Law and any relevant State or Territory legislation containing implied terms and/or statutory guarantees which operate to protect the purchasers of goods and services in various circumstances.

11.1 All express or implied representations, conditions, statutory guarantees, warranties and provisions (whether based on statute, common law or otherwise), relating to the Contract, that are not contained in it, are excluded to the fullest extent permitted by law.

11.2 Otus do not assume any liability with respect to any reliance placed on the Report by third parties and Otus disclaims, to the extent permitted by law, any responsibility or liability arising from or in connection with the Report or the use of the Report by any party. If a third party relies on the Report in any way, that party, subject to law, assumes the entire risk as to the accuracy, currency or completeness of the information contained in the Report.

11.3 Otus disclaims liability for any assumptions in the Report and/or on the Otus website being incorrect.

11.4 Otus shall not be liable in respect of any activity or damage on the Site that was concealed, (whether by the Client or a third party), or in relation to any incorrect information, documents, particulars and drawings provided by or on behalf of the Client.

11.5 Otus will not be liable for any special, indirect, consequential or economic loss or damage or loss of profits (in contract or tort or arising from any other cause of action) suffered by the Client or any other person resulting from any act or omission by Otus (including breach, termination or non­-observance of the terms of an order or the Contract).

11.6 Otus’s total liability for breach of contractual obligations or duties at law or in equity (however arising) is limited, at the option of Otus, to any one of the following:

• (a) the supply of the Services again; or
• (b) the payment of the cost of having the Services supplied again.

11.7 Subject to the provisions of the preceding clauses, the maximum liability of Otus to the Client arising out of the performance or non-performance of the Services by Otus or arising out of this Contract or any other act or omission by Otus pursuant to common law or equity or any statute, unless otherwise agreed in writing between the Client and Otus, shall be $5,000,000 AUD.

11.8 Notwithstanding any other term of the Contract, Otus shall not be liable for any failure to provide the Services occasioned by strike, lockout, shortage of labour, lack of skilled labour, delay in transit, prohibitions or restrictions, fire, flood, hostility, civil commotion, adverse weather conditions, acts of God or other causes whatsoever (whether similar in nature to the foregoing or not) beyond Otus’s control.

12.1 Otus and the Client agree that the Intellectual Property Rights in any products, services, documentation and other material provided by either party under this Contract, including any developments, updates, advancements, modifications or adaptations of those products, services, documentation and other material (Pre-existing Materials) shall remain vested in the party providing such Pre-existing Materials.

12.2 Each party will grant to the other party a licence to use its Pre-existing Materials to the extent required for the other party to perform its obligations under this Contract.

12.3 Unless specified otherwise in the Proposal, and subject always to all fees being paid in full, Otus grants to the Client a perpetual, world-wide non-exclusive licence to use, reproduce, adapt, modify, communicate, broadcast, distribute, publish, disseminate and sublicence the data in the Reports (Licenced Materials).

13.1 The Contract may be terminated by either party if there has been a substantial breach by the other party of its obligations and this has not been remedied within 14 days of receipt of written notice requiring the breach to be remedied. In the event of termination, the Client shall pay Otus for all Services performed to the termination date plus reasonable termination expenses.

14.1 To the fullest extent permitted by law, the Client shall indemnify and keep indemnified Otus, its directors, officers, employees and agents, against all losses, damages or costs (whether incurred by or awarded against Otus) that Otus may incur as a result, whether directly or indirectly, of:

• (a) any breach of this Contract by the Client or its directors, officers, employees and agents;
• (b) any negligent, wrongful or unlawful act or omission of the Client or its directors, officers, employees and agents;
• (c) any personal injury or death, or loss of, or damage to, property caused by any act or omission of the Client or its directors, officers, employees and agents;
• (d) breach of any law; or
• (e) any infringement of a third party’s intellectual property or other rights.

15.1 Otus shall have in place and maintain during the term of this agreement and for a period of [6] years afterwards, with a reputable insurance company the following insurances:

• (a) Public liability insurance for $5 million;
• (b) professional indemnity cover for $5 million; and
• (c) Workers Compensation Insurance as required by law.

16.1 The parties must endeavour to resolve any Dispute under this contract strictly in accordance with this clause 16 before they commence legal proceedings (except proceedings for interlocutory relief).

16.2 A party must comply with this clause 16 in relation to any dispute, controversy or claim arising out of, relating to or in connection with this Agreement, including any question regarding its existence, validity or termination (Dispute), before starting court proceedings except proceedings for urgent interlocutory relief. After a party has sought or obtained any urgent interlocutory relief, that party must follow this clause 16.

16.3  Any party claiming a Dispute has arisen must give the other parties to the Dispute a notice setting out details of the Dispute (Notice of Dispute).

16.4  Within 10 Business Days after a Notice of Dispute is received (or longer period if the parties to the Dispute agree in writing), each party to the Dispute must use all reasonable endeavours through a meeting of Senior Management (or their nominees) to resolve the Dispute.

16.5  If the Dispute is not resolved within 10 Business Days under clause 16.4, the Dispute shall be referred to a mediator upon either party’s request. If the parties cannot agree on a mediator within seven (7) days after the request, the chair of Resolution Institute or the chair’s nominee will appoint a mediator.

16.6  Unless agreed by the mediator and parties, the mediation must be held within 21 days after the request for mediation in clause 16.5. The parties must attend the mediation and act in good faith to genuinely attempt to resolve the Dispute.

16.7 Any information or documents disclosed by a party under this clause 16 must be kept confidential and may only be used to attempt to resolve the Dispute.

16.8  Each party must pay its own costs of complying with this clause 16. The parties must equally pay the costs of any mediator.

17.1 This Contract will be construed and governed in all respects by the laws of the State of New South Wales and each party submits to the non-exclusive jurisdiction of the courts of New South Wales.

17.2 Where the Client has provided Otus with a nominated email address Otus may send any notices to the Client by emailing it to that email address.

17.3 In the event that any provision of this Contract is held invalid or unenforceable, the remaining provisions of this Contract will remain in full force and effect.

17.4 The Client shall not assign its rights or obligations under this Contract without prior written consent of Otus.

17.5 No failure or delay by Otus to exercise any right or remedy provided under this Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.