Part 2 Terms and Conditions Parties 1 Canon Business Services Australia Pty Ltd ABN 42 063 577 739 of Building A, The Park Estate, 5 Talavera Road, Macquarie Park, NSW 2113 (CBSA). 2 [#insert Customer name, ABN and address] (Customer). Background A CBSA provides technology products and services to customers. B The Customer wishes to acquire technology products and services from CBSA. C The parties have agreed to enter into this Agreement to govern the terms and conditions on which CBSA will provide products and services to the Customer under this Agreement and Services Schedules to be entered into between the parties. Operative Provisions 1 Definitions and interpretation 1.1 Definitions In this Agreement, unless the contrary intention appears: (a) Agreement means this document including any schedule or annexure to it. (b) Assumptions means any assumptions to providing a Service set out in the relevant Statement of Work. (c) Business Day means a day that is not a Saturday, Sunday or a public holiday in the State in which the Services are to be performed. (d) Canon Affiliate means a related body corporate of CBSA, including Harbour IT Pty Ltd, Canon Business Services Centre Philippines, Canon New Zealand and Canon Australia Pty Ltd. (e) Charges means travel, accommodation, reasonable out-of-pocket expenses and similar expenses and delivery and courier charges for hardware, software or other equipment. (f) Commencement Date means the commencement date set out in Part 1 to this Agreement. (g) CPI means the Consumer Price Index (Australian All Groups) published by the Australian Bureau of Statistics. (h) CPI Review Date means 1 July of each year. (i) Customer Content means the content provided by the Customer to CBSA and held by CBSA in connection with this Agreement or any Services Schedule. (j) Customer Software means any software owned by or licensed to the Customer which is uploaded or otherwise managed by CBSA as part of the Services, including the software specified in a Services Schedule. (k) Disengagement Services means the services set out in clause 15.4. (l) Exclusions mean the Disengagement Services and any exclusions to a Service set out in the relevant Statement of Work. (m) Fees mean the amount payable by the Customer for Products or Services or ancillary services set out in a quote, order or applicable Services Schedule, including any termination costs where specified. (n) Force Majeure Event means an event not within the control of that party including act of God, fire, earthquake, storm, lightning, war (declared or undeclared), sabotage, terrorism or civil unrest, confiscation, nationalisation, embargo, pandemic, epidemic, restraint or damage to property by or under the order of any government or government authority, or strikes, blockades, lockouts or other industrial disputes. (o) GST has the same meaning as given in the A New Tax System (Goods and Services Tax) Act 1999 (GST Act). (p) Intellectual Property Rights means all intellectual property rights (whether registered or unregistered) including: (i) patents, copyright, rights in circuit layouts, registered designs, trademarks; (ii) any application or right to apply for registration of any of those rights; and (iii) any processes, formulae, technology, systems, reports, drawings, specifications, computer software (including source codes and object codes), blue-prints, discoveries, inventions, improvements, trade secrets, technical data, research data, know-how, and logos. (q) Insolvency Event means if the applicable party is a corporation, action is taken by it or another person on the basis that it is insolvent or unable to pay its debts when they are due; (i) if the applicable party is a corporation, action is taken by it or another person on the basis that it is insolvent or unable to pay its debts when they are due; (ii) if the applicable party is a corporation, action is taken by it or another person on the basis that it is insolvent or unable to pay its debts when they are due; (iii) any step taken to appoint a liquidator, provisional liquidator, receiver, receiver and manager, administrator or other similar person to all or part of a party’s assets or business; (iv) a party suspends payments generally or ceases to carry on its business or a substantial part of it; (v) if in Canon’s reasonable opinion, the Supplier ceases to be able to pay its debts as they fall due; (vi) any step is taken by a party to enter into any arrangement with its creditors or any class of creditors; (vii) if the Supplier is a partnership, the partnership is dissolved or an application is made to a court to dissolve it; or (viii) the holder of any security given at any time over any of the Supplier’s assets becomes entitled to exercise any powers arising on default pursuant to that security or otherwise to take action to enforce the security; (ix) an application for the winding-up of a party is presented and not withdrawn or dismissed within 21 days or an order is made or resolution is passed for the winding-up of the party; or (x) an event occurs in relation to a party analogous to anything referred to above or which has a substantially similar effect (r) Interest Rate means the rate of 5% above the current 90 day BBSW Rate per annum calculated daily, available at www2.asx.com.au/connectivity-and-data/information-services/benchmarks/benchmark-data/bbsw. (s) Personal Information has the meaning given to it in the Privacy Law. (t) Personnel means the employees, directors, officers, representatives, subcontractors, agents of, or secondees to, a person. (u) Privacy Law means the Privacy Act 1988 (Cth) and includes the Australian Privacy Principles, any regulations or instruments made under that Act, as amended from time to time. (v) Product means any hardware or software that CBSA procures from a third party for Customer’s internal use. (w) Related Bodies Corporate has the meaning given in the Corporations Act 2001 (Cth). (x) Service means a service as described in the relevant Services Schedule or Statement of Work. (y) Services Schedule means a written agreement entered into by the parties setting out the terms and conditions applying to a particular Service including the Statement of Work for that Service. (z) Stranded Costs means any cost or expense incurred by CBSA specifically for the purpose of providing the Services under the Agreement which continue beyond the termination date, such as costs associated with telecommunications links, the supply of software or hardware, dedicated resource costs, prepaid third party fees, or other like costs or expenses. (aa) Statement of Work means any document between the parties as agreed from time to time which sets out the detail of the provision and delivery of a Service, including Part 3 of a Services Schedule. (bb) Term means the term of this Agreement which commences on the Commencement Date and continues until terminated in accordance with its terms. (cc) Time and Materials Rates means CBSA’s standard charges calculated on an hourly basis for services and materials as annexed to a Services Schedule or if not annexed, then as updated from time to time. (dd) Variation means a change or variation to this Agreement, a Services Schedule, a Service or request for new or additional services. 1.2 Interpretation In this Agreement, unless the context requires otherwise: (a) a reference to a person includes any body corporate, unincorporated body or other entity and conversely; (b) a reference to any party to this Agreement or any other agreement or document includes the party’s successors and permitted assigns; (c) a reference to any agreement or document is to that agreement or document as amended, novated, supplemented, varied or replaced from time to time; (d) a reference to any legislation or to any provision of any legislation includes any modification, re-enactment or substitution of it, and all regulations and statutory instruments issued under it; (e) a reference to conduct includes any omissions, statement or undertaking, whether or not in writing; (f) all references to $ are to Australian dollars unless otherwise specified; (g) where two or more persons have rights or obligations they are bound jointly and severally; and (h) including and similar words do not imply limitation. 1.3 Precedence If any conflict or inconsistency arises between the terms and conditions of this Agreement and the terms of a Services Schedule, the terms of the Services Schedule prevail in relation to Services provided under that Services Schedule. 2 Services Schedules 2.1 Incorporated terms This Agreement incorporates each Services Schedule entered into by the parties at the Commencement Date and any Services Schedule added to this Agreement under clause 2.2. 2.2 New Services Schedules Where the parties agree that new Services will be provided by CBSA, the parties will enter into a new Services Schedule which will then form part of this Agreement. All new Services Schedules must: (a) be in writing; (b) specify that they are subject to this Agreement; and (c) be signed by an authorised representative of each party. 2.3 Ancillary Services The parties agree that notwithstanding any provision of this Agreement, if CBSA provides ancillary services to the Customer for which there is no formal agreement or Services Schedule, those services are provided subject to the terms and conditions of this Agreement. 2.4 Services by Canon Affiliates Customer acknowledges CBSA is a member of the Canon Oceania Group and from time to time CBSA may engage Canon Affiliates to provide the Services or part thereof. Customer agrees CBSA may provide Services or part thereof through a Canon Affiliate as required without notice. In the event CBSA engages a Canon Affiliate, the parties agree: (a) CBSA will remain responsible for the delivery of Services to the Customer; (b) Customer will not bring any claim or proceedings in connection with this Services or this Agreement against any of the Canon Affiliate; and (c) where Services or Deliverables involve third party licences, CBSA enters into this agreement as agent for the authorised Canon Affiliate. 3 Provision of Services 3.1 CBSA obligations CBSA will provide Services to the Customer: (a) on the terms of this Agreement; (b) in accordance with each applicable Services Schedule; (c) with due care, diligence and skill in accordance with good industry practice; and (d) in accordance with all applicable laws and regulations. 3.2 Customer acknowledgments The Customer acknowledges and agrees that: (a) the provision of Services is subject to the Assumptions and the Exclusions; (b) it must make all necessary arrangements to enable CBSA to perform the Services including access to personnel and facilities and authority to work with third parties; (c) it is responsible for the use, supervision, management and control of any services, products or documentation not provided by CBSA including having licence and support agreements with third party providers; and (d) it must not permit any person not authorised by CBSA to perform any services of any nature in relation to the Services, without CBSA’s prior written consent; and (e) it must do all things it is required to do under this Agreement and promptly notify CBSA if it becomes aware of any matter which may affect the Services. 3.3 Vendor Terms (a) The Customer acknowledges and agrees software or applications provided as part of the Services under this Agreement may be subject to licensing, subscription or other user related terms and conditions as determined by the vendor (Vendor Terms). (b) Customer agrees it will at all times during the Term: (i) comply with all relevant Vendor Terms; (ii) (where applicable) not cause CBSA to be in breach of any Vendor Terms it has agreed to in order to provide the Services; (iii) maintain accurate records relating to its use and distribution of such software or application. (c) Customer must: (i) only use software or applications for the intended purpose permitted under the licence or subscription; (ii) keep records relating to all use and distribution of software or application to verify compliance with license terms; (iii) not transfer, sublicense, or assign any rights the Customer has under a third-party license to any other person or entity, unless expressly authorised in writing; (iv) not and will not allow a third party to modify, adapt or create derivative works of any software, application or documentation; (v) not and will not allow a third party to reverse engineer, decompile, decrypt, disassemble or otherwise attempt to derive the source code for any software; and (vi) not and will not allow a third party to remove, modify, or conceal any product identification, copyright, proprietary, intellectual property notices or other marks on or within the software or application. 3.4 Procurement of Products In the event CBSA provides Customer with Products, (as part of Services or procurement services): (a) CBSA retains title in products until all sums owing to CBSA are paid; (b) until title passes to the Customer, Customer must not authorise or pledge, credit or create any lien, mortgage, charge security interest or encumbrance on the Product or proceeds; (c) risk in Products passes to the Customer on delivery, which will be effected when the products are released to a third party carrier; and (d) unless otherwise agreed in writing, in-transit insurance is the responsibility of the Customer. If requested, CBSA may arrange in-transit insurance at the Customer’s expense. 3.5 Compliance Audits (a) CBSA may upon 7 days written notice to Customer request inspection or audit of the Customer systems, materials, environment and other things that are reasonably related to Customer’s adherence to Vendor Terms or regulatory requirements, at its expense. Such inspection or audit may be carried out by CBSA, a vendor or an independent third party nominated by CBSA or the vendor to carry out such audit. (b) Customer agrees to fully co-operate to permit an effective inspection or audit and must promptly provide any information reasonably requested for the purpose of such audit, including: (i) facilitating access to relevant personnel or stakeholders including internal or external IT teams where applicable; (ii) providing appropriate access to Customer systems or environment; (iii) providing copies of any documents, records or data requested; (iv) permitting CBSA or its nominee to run, install or deploy any scripts or other programs where necessary to identify usage; and (v) providing evidence of licenses for relevant applications that are hosted or utilised by Customer. (c) If an audit or inspection reveals any material breach of this Agreement or Vendor Terms by the Customer, then the Customer must take reasonable remedial action, including complying with any reasonable directions or instructions from CBSA as may be necessary or appropriate in the circumstances to meet its obligations. 4 Fees and Payment 4.1 Fees and Charges CBSA will submit a monthly invoice to the Customer setting out the Fees and Charges payable for the relevant period. 4.2 Payment The Customer must: (a) pay the Fees and Charges to CBSA on the terms specified in this clause and the relevant Services Schedule; (b) reimburse CBSA for any travel, accommodation and similar expenses as well as any other reasonable ‘out-of-pocket’ expenses, incurred by CBSA and authorised by the Customer; and (c) unless otherwise stated in a Services Schedule make all payments due to CBSA under this Agreement within 30 days of the date of the relevant invoice. 4.3 GST exclusive Unless expressly stated otherwise in this Agreement or a Services Schedule, all Fees are exclusive of GST and all other applicable taxes, duties and levies. 4.4 Customer acknowledgements The Customer agrees and acknowledges that: (a) additional services which CBSA may supply from time to time in accordance with this Agreement will be calculated and invoiced at the then-current Time and Materials Rates; (b) CBSA will be entitled to review and increase the Fees by CPI: (i) (for Service Schedules dated between 2 July and 31 December) on the first CPI Review Date and each anniversary thereafter; and (ii) (for Service Schedules dated between 1 January and 1 July) the CPI Review Date of the following calendar year and each anniversary thereafter; (c) CBSA will be entitled to adjust the Fees in order to pass on any increase in third party charges, on submission to the Customer of a copy of correspondence from the third party setting out any such increase; (d) except for any amounts in dispute under clause 4.5, CBSA will be entitled to charge interest on any amount due and not paid by the Customer in accordance with clause 4.2 at the Interest Rate; and (e) without limiting CBSA’s rights to terminate this Agreement or a Services Schedule, if the Customer fails to pay any amount due in accordance with clause 4.2 and not in dispute under clause 4.5, CBSA may cease or suspend providing a Services to the Customer during any period of default on 14 days’ notice to the Customer. Customer will continue to be liable for Fees during any suspension period under this clause. 4.5 Fee disputes The parties agree that if the Customer disputes the whole or any portion of an invoice submitted by CBSA: (a) the Customer will pay any amount in the invoice which is not in dispute; (b) within 5 Business Days of receipt of the invoice, the Customer will notify CBSA in writing of the reasons for disputing the remainder of the invoice; (c) within 5 Business Days after the Customer provides notice under clause 4.5(b), the parties must meet with a view to resolving the dispute; and (d) if the parties cannot resolve the dispute within 10 Business Days of a meeting under clause 4.5(c), either party may refer the matter to dispute resolution as contemplated under clause 18. 5 Personal Property Securities Act 5.1 Grant of Security Interest Customer grants a security interest in CBSA’s favour in respect of Products procured under this Agreement, and to secure payment by the Customer to CBSA of all amounts payable under this Agreement or any other related agreement. 5.2 Grantor acknowledgements (a) The Customer will do all things reasonably necessary to enable the perfection, re-perfection, and maintenance of perfection of the security interest it grants CBSA, including granting CBSA the right to, without prior notice if deemed reasonably necessary, enter premises under the Customer’s control and re-take possession of the Products. (b) The Customer will notify CBSA in writing of any change in its name at least 3 Business Days before the change takes effect. (c) To the maximum extent permitted by law, the Customer agrees to waive its rights to: (i) receive any notice that is required by any provision of the PPSA, including a notice of a verification statement under section 157 of the PPSA; and (ii) any time period that must otherwise lapse under any law before CBSA exercises a right, power or remedy. (d) To the maximum extent permitted by law, the Customer agrees that for the purposes of sections 115(1) and 115(7) of the PPSA: (i) CBSA does not need to comply with sections 95, 123, 125, 130, 132(3)(d) or 132(4); and (ii) sections 142 and 143 are excluded. 5.3 Disclosure under PPSA The parties agree not to disclose information of the kind described in section 275(1) of the PPSA except in the circumstances required by sections 275(7)(b) to 275(7)(e) of the PPSA. Unless otherwise agreed by CBSA, Customer agrees it will only authorise the disclosure of information under section 275(7)(c) or request information under section 275(7)(d). Nothing in this clause prevents any disclosure by CBSA it reasonably believes is necessary to comply with its other obligations under the PPSA. 6 Variations 6.1 Request for Variations A party may request a Variation during the Term provided the request: (a) is in writing; and (b) sets out the details of the Variation, including the reason for the Variation. 6.2 Variation to be in writing A Variation is only valid if it is: (a) in writing; and (b) duly executed by an authorised representative of each party. 6.3 Variations to scope and volume (a) The Customer acknowledges and agrees that the pricing for a Service is based on the scope and volume of the Service as at the date of the relevant Services Schedule. (b) CBSA may increase fees and charges for Service if the Variation is based on a change in the Customer’s volume of business or number of users that will result in: (i) a decrease in the scope or volume of the relevant Service by more than 10% from the previous month; or (ii) a decrease in the scope or volume of the relevant Service by more than 10% of the agreed monthly minimum (if any). (c) Notwithstanding clause 6.3(b), CBSA will not be obliged to agree to a change to the scope or volume of a Service where the Customer proposes to take the provision of the Service in-house or to out-source the Service to an alternative provider. 7 Service Levels 7.1 Definitions For the purposes of this clause: (a) Credit Cap means the percentage of the Fee paid or payable in respect of the applicable Service over the relevant month as specified in the relevant Services Schedule but if not specified, no more than 5%. (b) Incident means a fault or disruption with normal operations of a Service including any degradation of the Service. (c) Priority Level means the priority level based on business impact and urgency determined using the priority matrix in the relevant Services Schedule. (d) Service Credit means a service credit calculated in accordance with the relevant Services Schedule. (e) Service Level means the benchmarks for performance of a Service as set out in the relevant Services Schedule. (f) Service Level Default means a failure to meet a Service Level as determined in accordance with the Service Level framework set out in the relevant Services Schedule. 7.2 CBSA obligations CBSA will: (a) in providing the Services, use all reasonable endeavours to meet the Service Levels; (b) respond to any Incident notified to it by the Customer in accordance with relevant Priority Level; (c) report to the Customer on its performance against the Service Levels at the end of each month; (d) assess the validity of Service Credit request under clause 7.3 on a good faith basis; and (e) credit any applicable Service Credit to the Customer at the end of each quarter. 7.3 Service Credit request If there is a Service Level Default in any month and the Service is eligible for Service Credits, the Customer may lodge a Service Credit request on the following basis: (a) the request must be lodged within 5 Business Days of the date of the report from CBSA and relate solely to claims in respect of that month; (b) if a single event or series of related events results in more than one Service Level Default, the Customer will be entitled to receive no more than one Service Credit relating to such events; and (c) if the Credit Cap is reached in any month, no further Service Credit will be payable for that month. 7.4 Customer acknowledgements The Customer acknowledges and agrees that: (a) the measurement of Service Levels will commence 30 days after the acceptance and sign off by the Customer of the project initiation or transition in phase; and (b) CBSA will not be responsible for any Service Level Default or liable to pay a Service Credit to the extent that the failure arose as a result of: (i) any wrongful act or omission of the Customer or its Personnel; (ii) the Customer’s failure to fulfil its obligations under this Agreement; (iii) the Customer’s failure to follow any notification procedure set out in the relevant Services Schedule; (iv) the Customer’s failure to maintain or update third party hardware or software not provided by CBSA; (v) scheduled maintenance which has been notified to the Customer; (vi) the Customer’s failure to provide reasonable access to the Customer’s site or reasonable cooperation and resources to allow CBSA to repair a Service outage or respond to an incident; (vii) any defects in any Customer Software, Customer Content or third party products; (viii) infrastructure, equipment or applications failures outside CBSA’s control including telecommunications failures, defective network or internet connections or defective or inappropriate equipment or infrastructure used by the Customer; (ix) the act or omission of any person other than CBSA or its representatives; or (x) a Force Majeure Event; and (c) any Service Credit payable by CBSA represents a genuine and reasonable pre-estimate of the Customer’s loss arising from a Service Level Default and will be the Customer’s sole remedy in relation to that failure. 8 Intellectual Property Rights 8.1 Definitions For the purposes of this clause: Deliverable means a work product developed for and delivered to the Customer as specified in a Services Schedule. 8.2 Existing Intellectual Property Each party acknowledges that this Agreement does not assign or transfer to the other party any Intellectual Property Rights belonging to the first party that existed prior to the Commencement Date. With respect to existing Intellectual Property Rights: (a) owned by CBSA, CBSA grants to the Customer a non-exclusive, royalty-free licence to use such material for Customer’s own internal purposes (unless otherwise agreed in writing) for the Term and subject to the terms of this Agreement; and (b) owned by the Customer, the Customer grants to CBSA a non-exclusive, royalty-free licence to use, modify and adapt such material to the extent required in order for CBSA to properly provide the Services. 8.3 New Intellectual Property Unless otherwise provided in this Agreement or a Services Schedule, CBSA will own all the Intellectual Property Rights in all materials created by CBSA as a result of performing the Services, including any Deliverables and may be used by the Customer for its internal purposes only. 8.4 Licence to use Deliverables To the extent CBSA is the owner of the Intellectual Property Rights in any Deliverables, CBSA grants to the Customer a non-exclusive, royalty-free licence to use the Deliverables for the purposes set out in the relevant Services Schedule and otherwise subject to the terms of this Agreement. 8.5 Know How and Methodologies Subject to any obligation of confidence CBSA will: (a) retain all right, title and interest in and to all know-how, methodologies, processes technologies, improvements or output used in performing the Services which are based on trade secrets or proprietary information of CBSA; and (b) be free to use the ideas, concepts, methodologies, process, improvements and know-how that are used, developed or created in the course of performing the Services and may be retained by CBSA’s personnel in intangible form. 8.6 Third Party IP claims (a) The parties agree to keep each other fully informed of all suspected or actual infringements by any person of the Intellectual Property Rights in the Services or Deliverables. (b) If any claim by a third party alleging infringement of any Intellectual Property Rights is made or brought involving a party (affected party) arising in connection with material supplied by the other party (supplying party) (IP Claim): (i) the supplying party must: A. of which they become aware and at the supplying party’s cost, settle or defend in good faith the IP Claim; B. indemnify the affected party against all expenses and costs that affected party may sustain or incur as a result of assisting the supplying party to defend or settle, or otherwise arising from, the IP Claim, except to the extent that that IP Claim arises from an act or omission of the affected party; and C. satisfy any settlement of or judgement given in the IP Claim; and (ii) the affected party must: D. provide to the supplying party all assistance and cooperation reasonably requested by the supplying party, at the supplying party’s expense, to defend or settle an IP Claim; and E. not do any act or thing unreasonably to hinder the defence or settlement of the IP Claim, and not settle the IP Claim without the supplying party’s written approval, which must not be unreasonably withheld. (c) Clause 8.6(b) does not apply to an IP Claim to the extent that such IP Claim arises as a result of: (i) the use of Services or a Deliverable other than in accordance with applicable documentation or instructions; or (ii) any alteration or modification of the Services or a Deliverable, unless explicitly authorised by CBSA. 9 Customer Content 9.1 The parties agree and acknowledge: (a) all Customer Content vests and remains the property of the Customer; (b) CBSA will not obtain any interest in the Customer Content and will not use the Customer Content for any purpose other than for providing the Services to the Customer pursuant to the relevant Services Schedule; (c) the Customer Content will be stored in the format initially provided to CBSA and unless otherwise agreed CBSA is under no obligation to convert or otherwise prepare the Customer Content in any other format, even if the Customer Content is unreadable or unintelligible to the Customer (except to the extent it is rendered unreadable or unintelligible by CBSA’s own negligence). If the Customer requires the Customer Data to be provided in any specific format, it may request a Variation and agrees to pay any additional associated costs at Time and Material Rates; (d) CBSA will not transfer Customer Content outside Australia without the Customer's prior consent. 9.2 Regulated Data (a) Customer acknowledges CBSA are not data controllers and are not privy to the nature of Customer Content. Customer will remain solely responsible for the collection, management and classification of Customer Content. (b) Where Customer Content includes regulated data, including cardholder data as determined by PCI Security Standards Council, Customer acknowledges CBSA are providing the environment, such as the underlying network, hardware and operating system as part of the Services. Customer will remain responsible for ensuring its own data handling processes, practices and controls comply with any legal or regulatory obligations applicable to the Customer. (c) The Customer must at all times indemnify and hold harmless CBSA and its officers, employees and agents (those indemnified) from and against any loss (including reasonable legal costs and expenses) or liability reasonably incurred or suffered by any of those indemnified, arising from any claim or proceedings alleging that the Customer Content or the Customer Software infringes any law. 10 Confidentiality 10.1 Definitions In this clause 10: (a) Confidential Information means any information in any form or media relating to the Discloser’s business and operations including commercial, financial and legal information, customer information, employee records, products, services, pricing, know-how such as report templates, operational processes and management technology, trade secrets or concepts which: (i) is by its nature confidential; (ii) the Recipient knows, or ought to know, is confidential to the Discloser; or (iii) the Discloser has designated as confidential and proprietary, and is made available by or on behalf of the Discloser to the Recipient, directly or indirectly, before or after the date of this Agreement, but does not include information which: (iv) is or becomes part of the public domain, other than by the Recipient’s breach of this Agreement; or (v) the Recipient lawfully obtains from a third party without any restriction as to use and disclosure. (b) Discloser means a party who discloses or makes available Confidential Information to the other party. (c) Recipient means a party who receives Confidential Information from or relating to the other party. 10.2 Confidentiality (a) Each party agrees it will not disclose, or permit to be disclosed, the terms of this Agreement, any matter relating to any of the term of this Agreement or any other Confidential Information relating to the other party’s operations or business to any third party, except to its advisors or as it may be required to do by law (b) For as long as the Confidential Information remains in the Recipient's possession, the Recipient must: (i) keep the Confidential Information confidential and safeguard it using the same degree of care (and no less than a reasonable degree of care) it uses to protect its own information of equivalent importance; (ii) not use or permit the use of any Confidential Information for any purpose other than that contemplated by this Agreement unless authorised by a separate agreement between the parties; (iii) only disclose the Confidential Information to its employees, officers, directors and contractors who need to know the Confidential Information; (iv) establish, apply and maintain effective security measures to safeguard the Confidential Information in its possession, custody or control from unauthorised use and disclosure; and (v) promptly notify the Discloser of any unauthorised use or disclosure of any Confidential Information and take all actions the Discloser reasonably requests to prevent any further unauthorised use or disclosure of that Confidential Information. 10.3 Permitted Disclosure The Recipient may disclose Confidential Information: (a) as expressly required or permitted by this Agreement (if applicable); (b) with the Discloser’s written consent; or (c) to the extent required by the operation of any law, stock exchange or regulatory body provided Recipient: (i) notifies the Discloser as soon as reasonably practicable; and (ii) if possible, gives the Discloser a reasonable opportunity to take any steps it considers necessary to protect the confidentiality of the Confidential Information. 10.4 Return of Confidential Information At the Discloser’s request, the Recipient must immediately return or destroy all Confidential Information in any form in its possession or control, including written or electronic form and all compilations or copies of the Confidential Information, excluding any copies in back up that cannot be reasonably returned or destroyed. 10.5 Continuing obligation of confidentiality Where a party is unable to reasonably return or destroy Confidential Information or other Discloser data in system backups or is prevented from returning Confidential Information due to legislation or any regulation imposed on the Recipient, the Recipient will continue to keep the Confidential Information secure and confidential. 11 Privacy 11.1 Personal Information The parties acknowledge that CBSA may from time to time receive or have access to Personal Information as part of Customer Content, in connection with the performance of this Agreement. 11.2 CBSA agrees to: (a) perform its obligations under this Agreement in compliance with the Privacy Law; (b) only use the Personal Information provided to it by the Customer for the purpose of performing its obligations under this Agreement; (c) deal with the Personal Information in accordance with the Customer’s reasonable instructions; (d) take reasonable steps to protect the Personal Information held by it under this Agreement from misuse, interference and unauthorised access, modification or disclosure; (e) store data containing Personal Information so as to prevent any of its other customers from accessing the information; (f) not transmit data containing Personal Information outside of Australia without the prior approval of the Customer; (g) unless expressly prohibited by law, notify the Customer as soon as reasonably practicable after it becomes aware that it may be required by law to use or disclose any Personal Information provided to it by the Customer under this Agreement; and (h) immediately notify the Customer if it becomes aware of a breach by it of any part of this clause and co-operate with the Customer to address any such breach. 11.3 Customer acknowledges and agrees: (a) unless otherwise agreed, Personal Information will be accessed by CBSA Personnel or a Canon Affiliate in Philippines for the purpose of carrying out the Services; (b) that Customer has obtained the necessary consent to provide Personal Information to CBSA; and (c) to indemnify CBSA for any loss or liability incurred or suffered due to Customer’s breach of clause 11.3(b) above. 12 Audit and access to documents 12.1 The Customer may request supervised access to CBSA records or documents relevant to the provision of the Services to the extent necessary for a security or regulatory compliance audit, provided: (a) such audit is not conducted more than once in any 12 month period; (b) the Customer gives at least 14 days prior written notice of the required access 12.2 Where Customer engages a third party (Customer Nominee) to conduct the audit on its behalf, Customer: (a) undertakes that the Customer Nominee will at all times comply with CBSA’s requirements regarding security, confidentiality and other relevant company policies; and (b) will procure from the Customer Nominee a signed confidentiality agreement on terms provided by CBSA prior to accessing CBSA information. 12.3 Customer agrees to bear the costs of the audit, including: (a) CBSA’s costs at Time and Materials Rate in the event audits pursuant to this clause is conducted for longer than 2 Business Days in total; (b) any additional test or certification costs; and (c) (where applicable) any membership or sign up fees required to access Customer’s nominated audit representative’s platform or services. 13 Warranties 13.1 Each party warrants that: (a) it has full capacity and authority to enter into this Agreement and to fulfil its obligations under this Agreement; (b) it will not during the Term and for a period of 6 months following the Term, induce or attempt to induce any employee, contractor or agent to terminate their agreements or contracts with the other party without the written consent of that other party. 13.2 CBSA warrants that: (a) it has full capacity and all required licences to provide the Services in accordance with this Agreement; (b) it will comply with all applicable laws and regulations and hold all licences necessary to perform the Services in accordance with this Agreement; and (c) as at the date of this Agreement, it is not aware of any matter that will prevent it from performing its obligations under this Agreement or cause it to infringe the Intellectual Property Rights of any person (but this warranty does not apply in respect of CBSA dealing with any material supplied to it by the Customer). 13.3 Customer warrants that: (a) it complies with all applicable anti-bribery laws and has not been offered or received any illegal or improper bribe, kickback, payment, gift or thing of value from CBSA or a third party in connection with this Agreement; (b) it understands and will comply with all applicable export control laws, including the US department of Commerce Export Administration Regulations and is not (and will continue to not be) located in, or use Services in, a location that is subject to US export restrictions (currently Cuba, Iran, North Korea, Sudan and Syria); (c) where Deliverables include software, Customer will not: (i) disassemble, reverse engineer or decompile the software; (ii) copy, create derivative works based on or otherwise modify software; (iii) remove or modify a copyright or other proprietary rights notice included in the Deliverable; or (iv) use Deliverables in the design, development or production of nuclear, chemical or biological weapons, or rocket systems, space launch vehicles, sounding rockets or unmanned air vehicle systems. 14 Liability 14.1 Limitation of liability Subject to clauses 14.2 and 14.4, the aggregate liability of each party for all claims arising under or in connection with the Agreement (whether arising under contract, statute, tort (including without limitation negligence) or otherwise) is limited to the total amount paid or payable by Customer to CBSA during the 12 months preceding the most recent claim, excluding any hardware and project implementation costs. 14.2 No unlawful exclusions Nothing in this Agreement will limit or exclude: (a) either party’s liability in respect of the death or personal injury to any individual; (b) either party’s liability for damages arising from any fraudulent act or wrongful misconduct by the liable party or its personnel; (c) Customer’s obligation to pay the Fees; or (d) for any liability which may not be lawfully limited or excluded. 14.3 Proportionate Liability The liability of a party under this Agreement will be reduced proportionately to the extent the other party’s act or omission or any failure by the other party to comply with its obligations under this Agreement causes or contributes to, directly or indirectly, the loss or damage for which the first party is liable. 14.4 Excluded Losses To the maximum extent permitted by law and subject to clause 14.2, each party excludes all liability to the other party for lost profits, lost revenue, lost savings, lost management time, loss or damage to data (except where CBSA has an obligation under a Services Schedule to restore data to the most recent back up and the Customer suffers a direct loss from a failure by CBSA to fulfil that obligation,), and any consequential or indirect loss arising out of or in connection with this Agreement, any Services, and any claims by any third person, even if a party knew that loss was possible or the loss was otherwise foreseeable. 14.5 Australian Consumer Law Any liability CBSA may have for any failure to comply with a consumer guarantee imposed by the Australian Consumer Law or any condition or warranty implied into an Agreement by legislation that cannot be excluded is not excluded, but to the extent the law permits is limited to (at CBSA’s option): (a) in the case of the Products, any one or more of: (i) replacing the Products or supplying equivalent Products; (ii) repairing the Products; (iii) paying the cost of replacing the Products or of acquiring equivalent Products; (iv) paying the cost of repairing the Products; or (b) in the case of the Services: (i) re-supplying the Services; (ii) paying the cost of re-supplying the Services. 15 Insurance 15.1 During the Term of this Agreement, CBSA must effect and maintain: (a) public liability insurance coverage in the amount of $10 million in the aggregate; and (b) professional indemnity insurance coverage in the amount of $5 million per occurrence and $10 million in the aggregate. 15.2 CBSA will on request from the Customer, provide the Customer with certificates of currency regarding the insurances required under clause 15.1. 16 Termination 16.1 Termination for breach (a) A party may terminate this Agreement (including all of the Services Schedules) immediately by written notice if: (i) the other party breaches any material term of this Agreement not capable of remedy; (ii) the other party breaches any material term of this Agreement capable of remedy and fails to remedy the breach within 14 days (in the event of a monetary breach) and 30 days (in the event of a non-monetary breach) after receiving notice requiring it to do so and which specifies the first party’s intention to terminate the Agreement if the breach is not remedied within the notice period; (iii) the other party ceases or threatens to cease to carry on its business or a substantial part of it; (iv) the other party suspends payments generally; (v) the other party suffers or threatens to suffer or resolves or is in jeopardy of becoming a subject of an Insolvency Event; or (vi) the other party has entered into any composition or arrangement with its creditors or has a receiver appointed over any of its assets or is the subject of any resolution or petition for winding up or judicial management. (b) The parties acknowledge and agree that failure by CBSA to meet a Service Level does not amount in itself to a material breach of this Agreement. 16.2 Expiry of Services Schedules Either party may terminate this Agreement following termination of all Services Schedules in accordance with their terms by giving 10 Business Days’ notice in writing to the other party. 16.3 Obligations on termination Upon termination or expiry of this Agreement: (a) all outstanding Fees become immediately due and payable; (b) CBSA will invoice and Customer will pay any Stranded Costs; (c) each party must as soon as practicable return to the other party or otherwise destroy, at the other party’s discretion, any of the other party’s Confidential Information, files, records or data in its possession or control but may retain copies in system backup or as required under regulatory requirements subject to clause 10.5; (d) CBSA will provide the Customer with a copy of the Customer Content or at the Customer's request, and to the extent permitted by law, delete or destroy any Customer Content in CBSA's possession but may retain copies in backup or as required under regulatory requirements subject to complying with clause 10.5. 16.4 Disengagement Services On termination or expiry of this Agreement, CBSA will provide Disengagement Services on request from the Customer at Time and Materials Rates, including: (a) preparation of a disengagement plan setting out the steps to be taken by each party; (b) provision of operating manuals, network/system diagrams and configuration details, provision of third party details for the delivery of the Services; (c) provision of software licensing details and requirements, provision of advice on the selection and installation of hardware and software that is required to carry out the Services to the extent that those requirements are not met by software already owned by or licensed to Customer (Customer Applications); (d) preparation of all system data, Customer Applications and hardware for the disengagement period, Provision of data on suitable media and format to the new service provider or in-house technical team; (e) provision of continual service to ensure all Services are provided to Customer during the disengagement period; (f) completion of any program of services for Customer that was commenced or agreed prior to termination; and (g) any other products or services CBSA agrees in writing to supply to Customer during the disengagement period. 16.5 Accrued rights Termination of this Agreement will not extinguish or otherwise affect any accrued rights or remedies of either party. 16.6 Continuing provisions Notwithstanding termination of the Agreement, each clause which by its context is intended to apply after the end of this Agreement will survive such termination, including clauses 8, 10, 14, 16.3, and 16.4. 17 Force Majeure 17.1 The obligations of a party under this Agreement (except for obligations to pay any amount) are suspended during the continuance of any Force Majeure Event to the extent that those obligations are affected by the Force Majeure Event. 17.2 A party seeking the benefit of a suspension of its obligations under this clause 17.1 must notify the other party of the Force Majeure Event and take all reasonably practical steps to mitigate the effects of that event. 17.3 If a party’s obligations under this Agreement are suspended due to a Force Majeure Event, and that Force Majeure Event continues for 90 days or more, either party may terminate this Agreement with immediate effect by giving notice to the other party. Each party must bear its own costs in relation to the termination of this Agreement under this clause. 18 Disputes 18.1 Neither party may start arbitration or court proceedings in relation to this Agreement (except proceedings seeking interlocutory relief) in respect of a dispute or a service level default unless it has first complied with this clause. 18.2 A party claiming that a dispute or a material service level default has arisen under this Agreement must notify the other party. Within 14 days after notice is given each party must nominate in writing to the other party an employee authorised to settle the dispute on its behalf. 18.3 During the 30 day period after a notice is given under clause 18.2 (or if the parties agree a longer period, that longer period) each party’s nominee must use his or her best efforts to resolve the dispute or remedy the service level default. 18.4 If a dispute is not resolved within the time referred to or agreed within clause 18.3 dispute must be referred for mediation, in accordance with the Resolution Institute for Facilitation of a Mediation (“Resolution Institute”) in accordance with the Resolution Institute Mediation Rules, to a mediator agreed by the parties, or if the parties do not agree on a mediator, a mediator nominated by the Chief Executive Officer of the Resolution Institute ACDC or the Chief Executive Officer’s nominee. 18.5 Each party must continue working in accordance with this Agreement during any dispute. 18.6 Nothing in clause 18 prevents either party from seeking urgent interlocutory relief. 19 GST 19.1 If any supply under this Agreement: (a) is a taxable supply (as defined in the GST Act), the party making the supply may, in addition to any payment for the supply, recover the amount of the GST applicable to the supply. Any amount of GST payable for a supply will be payable at the same time as the payment for the supply to which it relates; or (b) attracts any other tax, duty or levy that starts after the date of the Agreement and CBSA is required to pay such tax, duty or levy, the parties will negotiate in good faith to agree an outcome as between them that does not result in a reduction of the Fees as a result of the tax, duty or levy, except to the extent required by law. 20 Non-Solicitation 20.1 During the term of this Agreement and for a period of 6 months after it ends, neither party may actively solicit for employment, directly or indirectly, by themselves, through a Related Body Corporate or a third party any person who is or was employed or contracted by the other party during the term of this Agreement unless written approval has been obtained from the other party; or the relevant employee has ceased to be employed or contracted by the other party for a period of at least 6 months 21 Modern Slavery 21.1 Customer acknowledges CBSA is a member of the Canon Oceania Group and committed to ensuring compliance with the Modern Slavery Act 2018 (Cth). Canon Oceania Group’s annual modern slavery statement is available at https://modernslaveryregister.gov.au. 21.2 Customer will comply with all applicable anti-slavery and human rights related laws including the Modern Slavery Act 2018 (Cth) and take reasonable steps to ensure each of its subcontractors directly involved in the provision of services also comply with such laws. 21.3 Customer will notify CBSA as soon as possible of any confirmed instances of modern slavery and actions taken to remedy the issue. 22 Notices 22.1 All notices under this Agreement must be in writing and addressed to the relevant party at the address set out in Part 1 to this Agreement. A notice will be taken to be received: 22.2 if hand delivered, on delivery; 22.3 if sent by prepaid post, two business days after the date of posting; or 22.4 if sent by email, on receipt by the sender of an email from the recipient confirming receipt of the notice. 23 Governing law 23.1 This Agreement is governed by the law applicable in New South Wales and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of that State. 24 Exchange of Counterparts 24.1 The parties may execute this Agreement in counterparts. Each counterpart is an original but the counterparts together are one and the same agreement. 24.2 This Agreement is binding on the parties on the exchange of counterparts which may be effected by an exchange of scanned and emailed executed copies. 24.3 Any scanned and emailed signed copies constitute admissible evidence of the existence of this Agreement. 24.4 Where an electronic signature is used, the signatory further acknowledges that the signatory personally authenticated or authorised the placement of his or her signature. 25 General 25.1 Subject to the relevant regulations, CBSA and its Related Bodies Corporate may send the Customer marketing materials. 25.2 CBSA may subcontract any of its obligations under this Agreement and the Services Schedules without notice. CBSA is not relieved of any of its obligations or liabilities under this Agreement or its obligations in connect with any Service Schedule as a result of CBSA engaging a subcontractor. 25.3 Customer may not assign any right arising out of this Agreement, or a Services Schedule, without CBSA’s prior written consent, which much not be unreasonably withheld. 25.4 Customer agrees CBSA may novate or otherwise assign this Agreement or a Services Schedule to a Related Bodies Corporate with notice. 25.5 Each party acknowledges that in entering into this Agreement it has not relied on any representation or warranties about the subject matter of this Agreement except as expressly provided in this Agreement or Services Schedule. 25.6 To the extent legally permitted, this Agreement contains the entire agreement between the parties with respect to its subject matter. 25.7 No delay, neglect or forbearance on the part of any party in enforcing against any other party any obligation under this Agreement or a Services Schedule will operate as a waiver or in any way prejudice any right under this Agreement or a Services Schedule. 25.8 If any provision of this Agreement or a Services Schedule is held to be invalid, illegal or unenforceable, this Agreement will continue otherwise in full force and effect apart from such provision which will be taken to be deleted.   Part 3 Execution Executed as an Agreement Executed on behalf of Canon Business Services Australia Pty Limited ABN 42 063 577 739 by its duly authorised officer: Signature of authorised officer Name and title Date Executed on behalf of #insert company name ABN #insert ABN by its duly authorised officer: Signature of authorised officer Name and title Date