Terms & Conditions

Last updated: July 12, 2022

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Parties

MobileDigital Pty Ltd ACN 614 173 590
(Supplier)
and
The party named as Client in The Services Order Agreement
(Client)

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Background

  1. The Supplier is engaged in the provision of mobile marketing services via the intouchTEXT Messaging Software Platform and the intouch Mobile Marketing Platform
  2. The Client engages the Supplier to provide these services by signing the Services Order Agreement (SOA)
  3. The Supplier and the Client have agreed that the Supplier will provide services to the Client in accordance with the terms and conditions of this Agreement and the SOA

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Operative Provisions

It is agreed as follows.

1. Definitions and Interpretation

1.1 Definitions

In this Agreement, unless the contrary intention appears, the following words have the following meanings:

Term: The duration of the Agreement as stated in the Services Order Agreement (SOA)
Agreement means this agreement, the SOA and any schedules and annexures attached to the SOA.
Business Day means a day that is not a Saturday, a Sunday or a public holiday or bank holiday in NSW, Australia.
Change in Law means a change in an existing Law or the introduction of a new Law which takes effect after the date of execution of this Agreement by the Supplier and could not reasonably have been anticipated or foreseen by the Supplier. 
Claim includes any allegation, action, demand, cause of action, suit, proceeding, judgment, debt, damage, loss, cost, expense or Liability howsoever arising and whether present or future, fixed or unascertained, actual or contingent whether at law, in equity, under statute or otherwise. 
Client Representative  means the person so named in SOA, or a replacement for that person notified under clause 3.2(b) from time to time.
Commencement Date  has the meaning given to it in the SOA. 
Contract Month means each month during the Term, commencing on the Commencement Date, provided that the final Contract Month will end on the date of termination of this Agreement.
Dedicated Numbers means the a dedicated two-way mobile telephone numbers provided by the Supplier to the Client for sending and receiving TEXT messages as part of the Services. 
Default Interest Rate 4% per annum above the Cash Rate Target specified by the Reserve Bank of Australia.
Disclosing Party has the meaning given in clause 9.1.
Dispute has the meaning given in clause 16.2(a).
Event of Force Majeure

means an event or cause beyond the reasonable control and without default or negligence by the Affected Party, including act of God, fire, adverse weather conditions, epidemic or pandemic, natural disasters, war, an act of terrorism, insurrection, civil unrest or national or state-wide industrial dispute, failure of a communications system but does not include:

(a) a lack of, or inability to use, money or available funds for any reason; or

(b) an act or omission of the other Party which is in accordance with the rights of the other Party under this Agreement.
Excluded Loss

means:

(a) loss not arising naturally according to the usual course of things; or

(b) loss of revenue, loss of profit, loss of custom, loss of goodwill, loss of overhead recovery, loss of business opportunity, loss of the use of money, loss of use of property, loss of contract, loss of production, loss or payment of financing charges or cost recovery, opportunity cost, payment of liquidated sums or payment of damages (whether under this Agreement or otherwise).
GST means the tax payable on taxable supplies under the GST Law.
GST Law means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and relating law imposing such tax.
Insolvency Event 

 means any of the following events in respect of a party:

(a) a party disposes of the whole or part of its assets, operations or business other than in the ordinary course of business;

(b) a party ceases to carry on business or is deregistered;

(c) a party ceases to be able to pay its debts as they become due;

(d) any step is taken by a mortgage to take possession or dispose of the whole or part of a party’s assets, operations or business;

(e) any step is taken to enter into any arrangement between a party and its creditors; or

(f) any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a provisional liquidator, an administrator or other like person to the whole or part of a party’s assets, operations or business.
Law means any and all present and future applicable law (including the common law and statutory laws), regulations, codes, bylaws, orders, judgments, subordinate legislation, ministerial directions or directions of regulators in force from time to time in Australia, whether made by the Commonwealth, a State, a Territory or a local government.
Liability means any liability (whether actual, contingent or prospective), loss, damage, debt, cost or expense (including legal costs and expenses) of whatever nature or description.
Loss means any cost, expense, loss, fine, penalty, damage or liability.
Network Disruption means a network disruption or outage in the Primary Networks which adversely affects the delivery of the Services under this Agreement.
Notice has the meaning given in clause 17.1.
Payment Default means the non-payment by the Client of the Services Fees in accordance with this Agreement and that amount not being paid within 5 Business Days after the Supplier gives notice, in writing, of such non-payment.
Platform means the intouch TEXT Messaging Software Platform.
Primary Networks means Australian networks controlled by Tier One Mobile Network Operators (MNO) and Mobile Virtual Network Operators (MVNO).
Supplier Representative means the person so named in Item 4 of the SOA, or a replacement for that person notified under clause 3.1(b) from time to time.
Services means the Text services to be provided by the Supplier to the Client pursuant to this Agreement.
Service Fees means the fees payable by the Client for the Services as set out in Schedule 4, subject to any adjustment under this Agreement.
Term

means:

(a) the Initial Term, having the meaning given in the SOA;

(b) the Extended Term (if any), having the meaning given in the SOA; and

(c) each Further Term (if any), having the meaning given in clause 2.3.
TEXT means SMS and MMS messages
   
1.2 Interpretation

In this Agreement, headings and bold text are for ease of reference only and do not affect the interpretation of this Agreement and, unless the context otherwise requires:

  1. the singular includes the plural and vice versa;
  2. another grammatical form of a defined word or expression has a corresponding meaning;
  3. a reference to a document or instrument, includes the document or instrument as novated, altered, supplemented or replaced from time to time;
  4. subject to clause 15.2, a reference to time is to Queensland time;
  5. a reference to a party to this Agreement, and a reference to a party to a document includes the party's executors, administrators, successors and permitted assigns and substitutes;
  6. a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, reenactments or replacements of any of them;
  7. the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions; and
  8. a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this Agreement or any part of it.
1.3 Business Day

If a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day.

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2. Term

2.1 Initial Term

Subject to any lawful earlier termination, this Agreement commences on the Commencement Date and will continue in force for the Initial Term.

2.2 Extended Term

Subject to any lawful earlier termination and assuming all requirements, including security audit compliances, were met during the Initial Term, at the expiry of the Initial Term, this Agreement will automatically be extended for the Extended Term.

2.3 Further Term

The parties may agree in writing to extend the Term for one or more further terms of 12 months, or such other period as they may agree (Further Term) to commence onthe expiry of the Extended Term or any current Further Term.

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3. Representatives

3.1 Supplier Representative
  • The Supplier Representative will serve as the Supplier ’s primary contact with Client with respect to the performance of this Agreement.
  • The Supplier may replace the Supplier Representative at any time by written notice to the Client.
3.2 Client Representative
  • The Client Representative will serve as Client’s primary contact with the Supplier with respect to the performance of this Agreement.
  • The Client may replace the Client Representative at any time by written notice to the Supplier.

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4. General Obligations of the Parties

4.1 Obligations of the Supplier

The Supplier must perform the Services in accordance with, and subject to the terms of, this Agreement.

4.2 General Obligations of the Client

In consideration of the Supplier’s performance of the Services, the Client must pay the Service Fees in accordance with, and subject to the terms of, this Agreement.

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5. The Services

5.1 Exclusivity

The Client appoints the Supplier as the exclusive supplier of services the same or similar to the Services to the Client during the Term in accordance with this Agreement.

5.2 Services
  • The Services comprise:
    (i) access to the Platform and the ability to generate, test, schedule, deliver and receive TEXT messages using the Platform;
    (ii) access to the Dedicated Numbers;
    (iii) availability and utilisation of the Platform’s Application Programming Interface (API) for integration purposes; and
    (iv) support and education services.
  • The Services are limited to a maximum of 5 users per dedicated mobile number as nominated and assigned by the Client from time to time.
5.3 CRM Integration

The Supplier may provide integration to the Clients Customer Relationship Management (CRM) or to one or more Customer Data Platforms (CDP), including software modifications necessary to manage:

  • staging / staggering campaigns;
  • management of opt-outs; and
  • reporting,
  • chat

on a mutually agreed implementation timeline, and fee structure agreed with the Client.

5.4 Compliance with Law and Change in Law
  • The Supplier must perform the Services in accordance with all applicable Laws.
  • If there is a Change in Law which either:
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    (i) necessitates a change to the Services or otherwise adversely affects the performance of the Supplier’s obligations under this Agreement; or
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    (ii) directly results in an increase in the Supplier’s cost of carrying out the Services,

    the parties must consult to adjust the Service Fees to compensate the Supplier for the additional costs of complying with the Change in Law.
5.5 TEXT Traffic

The TEXT traffic conducted as part of the Services will be carried exclusively across the Primary Networks.

5.6 Network Disruption
  • The Client acknowledges that:
    (i) delivery of the Services is contingent upon the reliability and performance of the Primary Networks; and
    (ii) events beyond the Supplier’s control, such as a Network Disruption in the Primary Networks, may impact the delivery of the Services.
  • In the event of a Network Disruption, the Supplier
    (i) must promptly inform the Client and take all reasonable steps to mitigate the impact on the Client, including rerouting traffic, utilizing backup systems, or implementing other contingency measures; and
    (ii) provided that the Supplier complies with clause 5.6(b)(i), will not be liable to the Client for the consequences of a Network Disruption.

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6. Security and Compliance

6.1 Security
  • The Supplier will perform the Services in compliance with security and privacy obligations contained in the relevant Laws.
  • The Client must co-operate with all reasonable requests and instructions of the Supplier regarding security and privacy in relation to the Services.
6.2 Audit
  • Within the Term, the Supplier agrees to provide access to information necessary for the client’s audit purposes
6.3 Termination

Without limiting any other right of termination, the Client may terminate this Agreement by giving 30 days’ written notice of termination to the Supplier if the Supplier fails to fully comply with its Audit obligations set out in clause 6.2.

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7. Payment

7.1 Service Fees

The Client must pay the Supplier the Service Fees in accordance with this clause 7.

7.2 Invoicing and payment terms
  • The Supplier may issue a valid tax invoice to the Client for the Service Feesmonthly in arrears.
  • The Client must pay each invoice within 14 days of the date of the invoice.
7.3 Interest on overdue amounts
  • Without prejudice to any other right or remedy available to the Supplier, if any amounts due and payable by the Client to the Supplier under this Agreement remains unpaid after the date on which such amounts became due and payable, the Client must pay interest on those amounts at the Default Interest Rate.
  • The interest accrues from day to day from and including the due date for payment up to the actual date of payment.

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8. GST

8.1 Interpretation

In this clause 8, a word or expression defined in the GST Law has the meaning given to it in that law.

8.2 Amounts payable

All amounts payable under this Agreement are expressed exclusive of GST.

8.3 GST gross up

If a party makes a supply under or in connection with this Agreement in respect of which GST is payable, the consideration for the supply but for the application of this clause 8.3 (GST exclusive consideration) is increased by an amount equal to the GST exclusive consideration multiplied by the rate of GST prevailing at the time the supply is made unless that consideration is stated to already include GST.

8.4 Reimbursements

If a party must reimburse or indemnify another party for a loss, cost or expense, the amount to be reimbursed or indemnified is first reduced by any input tax credit the other party is entitled to for the loss, cost or expense, and then increased in accordance with clause 8.3.

8.5 Parties’ obligations to provide

Each party agrees to do all things, including providing tax invoices and other documentation, that may be necessary or desirable to enable or assist the other party to claim any input tax credit, adjustment or refund in relation to any amount of GST 3460-3696-1577, v. 6paid or payable in respect of any supply made under or in connection with this Agreement.

8.6 Tax Invoice

A party need not make a payment for a taxable supply made under or in connection with this Agreement until it receives a tax invoice for the supply to which the payment relates.

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9. Confidentiality

9.1 Confidential Information

Each party acknowledges that:

  • the existence of this Agreement, including the identity of the Supplier;
  • the terms of this Agreement, including the Service Fees and the volume of TEXT messages; and
  • information disclosed to it by the other party under this Agreement(Disclosing Party) but excluding information which at the time of its disclosure:
    (i) is or subsequently becomes without a breach of this Agreement, in the public domain; or
    (ii) is already known to the other party without any obligation of confidence; or
    (iii) is lawfully obtained from a third party without any obligation of confidence to the Disclosing Party; and

is proprietary, confidential or a trade secret of the Disclosing Party (Confidential Information).

9.2 No disclosure except as permitted

Except as permitted by this Agreement, each party undertakes that it will keep confidential all Confidential Information and that it will not, without the consent of the Disclosing Party, disclose that information to any third party or use it for any purpose other than performing its obligations or exercising its rights under this Agreement.

9.3 Permitted disclosure
  • A party may disclose Confidential Information to a third party where such disclosure is made:
    (i) to the professional advisers or agents of that party;
    (ii) as required by Law, whether the obligation arises as a consequence of the act of the party or otherwise;
    (iii) to any stock exchange, the rules of which require disclosure; or
    (iv) where reasonably necessary for the purposes of any arbitration, administrative or legal proceedings involving the parties.
  • A party making a permitted disclosure under this clause 9.3 must take all reasonable steps to ensure that the person to whom disclosure is made keeps confidential all such information disclosed.

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10. Intellectual Property

The Supplier grants the Client a limited licence to use the Supplier’s intellectual property during the Term, and only to the extent necessary for the Client to use and receive the benefit of the Services.

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11. Warranties

11.1 Supplier’s Warranties

The Supplier warrants that:

  • it will perform the Services in accordance with all Laws;
  • it has the skills and qualifications required to provide the Services in accordance with this Agreement; and
  • it will act with due care and skill at all times in the provision of the Services and in accordance with applicable professional standards.
11.2 No other warranty by the Supplier

The Supplier makes no other warranty to any person (including the Client) in relation to the Services except those warranties expressly provided in this Agreement and those warranties which cannot be specifically excluded under law and the Supplier expressly excludes all other terms, conditions, warranties, undertakings, inducements or representations, whether expressly or implied or implied by statute.

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12. Liability

12.1 Statutory Provisions

Nothing in this Agreement excludes, restricts or modifies any terms, conditions or warranties or the Supplier’s liability for them which are imposed or implied by any statute, including the Competition and Consumer Act 2010 (Cth), and which by statute cannot be excluded, restricted or modified. Limitations and exclusions are made only to the extent that the Supplier may legally do so.

12.2 Limitation and exclusion of liability

Subject to clause 12.1, the Supplier’s liability for any kind of loss or damage suffered by the Client in connection with this Agreement, whether in contract, negligence or other tort, misrepresentation, breach of any statutory or equitable duty, or otherwise, and whether the Supplier’s act or omission is wilful or otherwise, is excluded and/or limited (as the case may be) as set out in this clause 12.

12.3 Liability for services

Subject to clause 12.1, to the maximum extent permitted by law, the Client acknowledges and agrees the Supplier’s liability to the Client (and any party claiming through the Client against the Supplier) for any claim for loss or damages (including legal expenses) made in connection with this Agreement whether in contract, tort (including negligence), under statute, in equity or otherwise for any services that are claimed to be defective or deficient, is limited to the provision of the services again or the payment of the price of having the services provided again, at the Supplier’s election.

12.4 Limitation of Liability

Subject to clauses 12.1 and 12.6 and to the maximum extent permitted by law, any other liability falling outside the application of clause 12.3, for any loss or damage arising from or caused in any way by the Supplier or its employees, the Services or this Agreement, is limited to the greater of:

  • 100% of the expected Service Fees set out in Error! Reference source not found. for the relevant year in which the relevant liability arises;
  • 100% of the actual Service Fees paid by the Client in the 12 months immediately preceding the time at which the relevant liability arises; and
  • the amount of loss or liability for which the Supplier is indemnified under a policy of insurance required under this Agreement (or would have been entitled to be indemnified but for its failure to effect or maintain, its breach of, or its failure to pursue a claim that could be prudently or legitimately made under, any applicable policy of insurance).
12.5 Excluded Loss

Subject to clauses 12.1 and 12.6, despite any other provision in this Agreement, to the fullest extent permitted by Law, neither party will be liable to the other for any Excluded Loss.

12.6 Exclusions

Clauses 12.4 and 12.5 do not exclude or limit a party’s liability:

  • resulting from wilful misconduct, criminal act or fraud committed by a partyor any of its employees;
  • in respect of death or personal injury; or
  • out of which by law a party cannot contract.
12.7 Survival

The provisions of this clause 12 survive the expiry or termination of this Agreement.

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13. Insurance

13.1 The Supplier’s Insurance

The Supplier must at its own cost, effect and maintain public liability insurance written on an occurrence basis providing cover for an amount not less than $20,000,000.00 in respect of legal liability to third parties for personal injury and death of any person and in respect of any injury, loss or damage to any property arising in connection with the performance of the Services.

13.2 Certificate of currency

Within 5 Business Days of a written request by the Client, the Supplier must provide certificates of currency or copies of policies evidencing that the insurances required under this clause 13 have been effected and are current.

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14. Force Majeure

14.1 Notice

If either party (Affected Party) is prevented, in whole or in part, from carrying out its obligations under this Agreement by reason of an Event of Force Majeure, it must give the other party (Unaffected Party) prompt written notice of the particulars of the Event of Force Majeure and the obligations the Affected Party cannot perform as a result of the Event of Force Majeure (Affected Obligations).

14.2 Obligations suspended

After a notice has been given in accordance with clause 14.1:

  • the Affected Obligations will, to the extent they are affected by the Event of Force Majeure, be suspended during the continuation of the Event of Force Majeure; and
  • any obligations of the Unaffected Party that are dependent upon the Affected Obligations will be suspended until the Affected Party resumes performance.
14.3 Removing the Event of Force Majeure

The Affected Party must use all reasonable endeavours to remove the Event of Force Majeure as quickly as possible and resume performance of the Affected Obligations.

14.4 Termination

If the failure or delay by the Affected Party to carry out the Affected Obligations due to the Event of Force Majeure continues for more than 60 days, then either Party may terminate this Agreement immediately by giving notice to the Affected Party, without prejudice to any accrued rights or remedies of any party.

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15. Termination

15.1 Termination by the Supplier

The Supplier may terminate this Agreement with immediate effect by giving written notice of termination to the Client, if:

  • the Client suffers an Insolvency Event;
  • the Client commits a material breach of any of its obligations under this Agreement (other than a Payment Default) which is not cured within 10 Business Days (or such longer period as the Supplier may specify) following receipt of written notice from the Supplier, or by its nature or timing, cannot be cured within such time period; or
  • the Client is in Payment Default.
15.2 Termination by the Client

The Client may terminate this Agreement with immediate effect by giving written notice of termination to the Supplier, if:

  • the Supplier suffers an Insolvency Event; or
  • the Supplier commits a material breach of any of its obligations under this Agreement which is not cured within 20 Business Days (or such longer period as the Client may specify) following receipt of written notice from the Client, or by its nature or timing, cannot be cured within such time period.
15.3 Effect of Termination

Termination or expiration of this Agreement does not affect:

  • any rights of the parties which may have accrued before termination or expiration; and
  • the rights and obligations of the parties under any clause or part of this Agreement which, expressly or by implication from their nature, are intended to continue after termination or expiration.

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16. Disputes

16.1 Court proceedings

Nothing in this clause 16 prevents either party seeking urgent injunctive or other interim relief from a court, or from continuing existing court proceedings.

16.2 Consultation between parties
  • A party claiming that a dispute has arisen out of or in connection with this Agreement (Dispute) must provide the other party with written notice of the nature of the Dispute and the relevant facts.
  • A meeting must be convened and held by both parties as soon as reasonably practicable to attempt, in good faith, to resolve the Dispute.
16.3 Referral to Mediation

If the Dispute has not resolved within 30 days of a notice provided under clause 16.2(a), either party may submit the Dispute to mediation in Brisbane, Australia administered by the Australian Disputes Centre in accordance with the ADC Guidelines for Commercial Mediation, which Guidelines are taken to be incorporated into this Agreement.

16.4 Costs

Each party must bear its own costs of complying with this clause 16.

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17. Notices

17.1 Service and notices
  • A notice, demand, consent, approval or communication under this Agreement (Notice) must be:
    (i) in writing, in English and signed by a person duly authorised by the sender; and
    (ii) marked for the attention of the person, and hand delivered or sent by prepaid post or email to the recipient’s address specified in the SOA as varied by any Notice given by the recipient to the sender.
  • Communications by email need not be marked for the attention in the way required by clause 17.1(a)(ii). However, the email must state the first and last name of the sender. Communications sent by email are taken to be signed by the named sender.
17.2 Effective on receipt

A Notice given in accordance with clause 17.1 takes effect when taken to be received (or at a later time specified in it), and is taken to be received:

  • if hand delivered, on delivery;
  • if sent by prepaid post, six Business Days after the date of posting (or tendays after the date of posting if posted to or from a place outside Australia); or
  • if sent by email, at the time the email was sent unless the sender receives an automated message that the email has not been delivered,

but if receipt is not on a Business Day or is after 5.00pm on a Business Day (in the time zone of the addressee), the Notice is taken to be received at 9.00am on the next Business Day.

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18. Assignment

18.1 Assignment

Neither party may assign, transfer or otherwise deal with this Agreement or any right under this Agreement without the prior written consent of each other party, which must not be unreasonably withheld.

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19. General

19.1 Entire agreement

This Agreement constitutes the entire agreement between the parties in relation to its subject matter. All prior discussions, undertakings, agreements, representations, warranties and indemnities in relation to that subject matter are replaced by this Agreement and have no further effect.

19.2 Relationship of the Parties

This Agreement does not give rise to any relationship of principal and agent, trustee and beneficiary or employer and employee. Neither party has authority or power to act as agent for the other or to bind the other, except as expressly agreed in writing.

19.3 Amendment

This agreement may not be amended or varied unless the amendment or variation is in writing signed by all parties.

19.4 Severability

Part or all of any provision of this Agreement that is illegal or unenforceable will be severed from this Agreement and will not affect the continued operation of the remaining provisions of this Agreement.

19.5 Waiver

Waiver of any power or right under this Agreement must be in writing signed by the party entitled to the benefit of that power or right and is effective only to the extent set out in that written waiver.

19.6 Rights, remedies additional

Any rights and remedies that a person may have under this Agreement are in addition to and do not replace or limit any other rights or remedies that the person may have.

19.7 Governing law and jurisdiction

This agreement will be governed by and construed in accordance with the laws in force in the State of Queensland and each party submits to the non-exclusive jurisdiction of the courts of that State.

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