Terms of Service - Codeifai Limited

CDE’s Terms and Conditions of Supply as referred to in CDE’s Master Service Agreements, Quotations or Orders placed by Customers

Now it is agreed as follows:

1. Term

1.1 Agreement Term

This Agreement will commence on the Commencement Date (as stated in the Schedule contained in the Master Service Agreement (MSA) entered into between the Parties) and will continue in effect for the Initial Term unless terminated earlier in accordance with this Agreement.
Unless either party gives 30 days' prior written notice of its intention not to renew the Term prior to the expiry of the Initial Term, the Term of the Agreement will extend for an additional period of 24 months (Option Period).
The parties may agree to extend this Agreement for a period longer than the Option Period in writing by a document signed by both parties.

1.2 Term of Order

Unless otherwise agreed by the Parties, an Order will be effective on and from the date of execution of the Order by both parties and will continue:
- for the period specified in the Order; or
- until all obligations in respect of all the Products the subject of that Order have been fully performed,
unless terminated earlier in accordance with the provisions of this Agreement.

2. Order and Order Process

2.1 Placement of Orders

a. If the Customer wishes to purchase Products under this Agreement the Customer will either issue an Order to CDE or CDE will issue a Quotation. Each Order or Quotation must set out:
- the quantity of the Product which the Customer wishes to purchase;
- the required Delivery Date;
- the required Delivery Location;
- any special requirements relating to the Products or the delivery of them.
b. If the Customer has an approved API used to Order and activate Products, CDE will invoice for activated Products at the end of the month in which the activation takes place. Each activation will be considered as an Order under this agreement.
c. Unless otherwise agreed by the Parties, each Order must be for a minimum quantity of 10,000 Codes or the Minimum Order Quantity specified in the Master Services Agreement.
d. CDE may specify a particular form for Orders and, if it does so, each Order submitted by the Customer must be in the form specified by CDE alternatively CDE may issue a Quotation.
e. CDE may decline an Order if:
- it is unable to supply the Products ordered by the Customer;
- the Order does not comply with the requirements of this Agreement;
- the Customer is in breach of this Agreement; or
- it does not agree with the special conditions specified by the Customer in the Order.
CDE will notify the Customer if it has decided to decline an Order and, if requested by CDE and agreed by the Customer, the parties will then use reasonable efforts to agree on a revised Order and subsequent Quotation.
f. If CDE accepts an Order it will sign a copy of the Order and return the signed copy of the Order to the Customer and issue a Quotation. If CDE requires the Customer to pay a Deposit for an Order or Quotation it will notify the Customer of the required Deposit at the time it returns a signed copy of the Order and issues a Quotation.
g. No Order or Quotation will be binding on CDE unless and until such time as it has been accepted by both parties and the Deposit (if required by CDE) has been paid.
h. Orders that are not accepted by CDE within 30 Business Days of issue by the Customer, or such later date agreed between the parties, will automatically lapse and will not be binding on CDE or the Customer.
i. Any legal terms added to an Order by the Customer (such as standard form customer purchase order terms) will have no effect and will not form part of the signed Order even if the Order is accepted by CDE.
j. If there is any inconsistency between the provisions of this Agreement and an Order, the terms and conditions of the Order will take precedence over this Agreement but only to the extent of any inconsistency.
k. The Prices stated in the Schedule contained in the Master Service Agreement (MSA) entered into between the Parties will apply to the Products ordered and delivered under each Order.

2.2 Changes and cancellations

CDE is not obliged to agree to any changes to an accepted Order.
If the Customer requests a change to the specifications of the Products set out in an accepted Order and CDE is prepared to accept those changes, CDE may determine what change, if any, there will be to the Price and provide Customer with a new Order that reflects any change in the Price. If the new Order is not accepted by the Customer then the existing Order will continue to apply.
The Customer may not cancel an Order without the approval of CDE. CDE may give or withhold its approval at its discretion.

3. Minimum Order Quantity (MOQ)

The Customer acknowledges that a Minimum Order Quantity (MOQ) requirement applies to the Products. The Customer agrees to place sufficient Orders for Products during each 12 month period during the Term so that it meets or exceeds the Minimum Order Quantity requirement as set out in the Schedule contained in the Master Service Agreement (MSA) entered into between the Parties.
If the Customer fails to achieve the Minimum Order Quantity in any 12 month period during the Term (or the conditions of the MOQ), then (except where that failure is due to the default of CDE) the Customer must pay CDE for the deficiency between the number of Products actually ordered in that 12 month period and the Minimum Order Quantity for that 12 month period at the Price specified in the Schedule contained in the Master Service Agreement (MSA) entered into between the Parties.

4. Proofs

4.1 The Customer is responsible for proofing and approving all Proofs provided by CDE after placement of an Order.
4.2 The Customer agrees that it will review any Proofs provided by CDE and provide confirmation if the Proofs are accepted and approved. If Proofs are required, then the Customer accepts that until it sends its approval of the Proofs, CDE cannot proceed with the next stage of producing and delivering the Products. A Proof will be considered accepted and approved as soon as CDE produces and delivers the Products.
4.3 CDE will not be responsible for any delay caused by the Customer failing to approve any Proofs.
4.4 The Customer may not reject any Products in respect of any error or omission in the Products if the Products comply with and are consistent with the Proofs approved by the Customer.

5. Use of Codes

a. Each Code supplied by CDE contains a unique serial identifier and:
- may only be used once on a single Customer product; and
- must not be copied, replicated or modified.
b. The Customer must not use the Codes on any counterfeit or illegal products.

6. Rights to access and use the Connect Platform

a. Where the Customer purchases Codes under this Agreement the Customer may access and use the Connect Platform to identify, monitor and track and trace those Codes during the Term as well as any other purposes as authorised by CDE in writing from time to time.
b. The Customer's use of the Connect Platform must comply with any guidelines issued by CDE from time to time.
c. The Customer must comply with all applicable laws when using the Connect Platform and must not use or attempt to use the Connect Platform in connection with counterfeit or unlawful goods or products. The Customer must not upload any data, information or images to the Connect Platform which infringe any third party Intellectual Property Rights, which promote the sale of counterfeit products, which are illegal, which are defamatory or which are otherwise contrary to any guidelines issued by CDE.
d. The Customer must not or attempt to:
- compromise the operation, security and integrity of the Connect Platform, including by introducing any virus, malicious code or other similar item into the Connect Platform;
- copy or modify the software used to operate the Connect Platform; or
- reverse engineer, disassemble, decompile, decipher or otherwise decrypt the software used to operate the Connect Platform.
e. If CDE provides the Customer with any passwords for the Connect Platform the Customer must only provide those passwords to its authorised Personnel and the Customer will be responsible for safeguarding the passwords and the use of them.
f. The Customer acknowledges that the track and trace functionality for the Connect Platform is subject to a separate agreement and pricing.

7. Delivery Obligations

7.1 Delivery

CDE will use reasonable commercial efforts to deliver the Products to the Delivery Location by the Delivery Date specified in the applicable Order.

7.2 Delay

If for any reason there is a delay in fulfilling or dispatching an Order, or CDE cannot supply Products ordered, CDE will contact the Customer and the parties will seek to agree to a mutually alternative Delivery Date.

8. Inspection and Right to Audit

8.1 The Customer will be deemed to have accepted all the Products supplied by CDE within 24 hours after delivery by CDE, except to the extent the Customer has provided written notification to CDE within that period that particular Products are Defective Products. In that case the Customer's notice must identify the Defective Products and describe the defects.
8.2 If an inspection reveals that CDE has supplied any Defective Products to the Customer then, at CDE's option, CDE will as the Customer's sole remedy either:
- resupply or rectify the Defective Products; and/or
- provide a refund for the Defective Products to the Customer.
8.3 CDE shall have the right, upon written notice to the Customer, to conduct audits and inspections of the Customer’s relevant records, facilities, third party suppliers including printers and operations related to the products or services provided under this Agreement. CDE’s audits and inspections shall be carried out by an independent third party selected by the CDE and approved by the Customer (which approval shall not be unreasonably withheld), at the Customer's sole expense. The Customer shall reasonably cooperate with the chosen third-party auditor during the audit process. Audits shall be conducted during regular business hours and shall not unduly interfere with the Customer’s or their suppliers’ normal course of business.
8.4 The purpose of the audit shall be to verify the accuracy of the invoicing and compliance with the terms and conditions of this Agreement, including but not limited to, the quantity of codes printed, tracers used, and related charges. The audit scope may also encompass a review of the Supplier's quality control procedures, inventory management, chain of custody and any other aspects directly related to the products or services covered by this Agreement.
8.5 Audits may be conducted by CDE at its discretion but shall not occur more frequently than once per calendar year, unless there is reasonable cause to suspect a material breach of this Agreement. CDE, the Customer and the auditors shall treat all information obtained during the audit process as confidential and shall not disclose such information to any third party except as required by law.
8.6 Customer shall provide CDE or the designated auditor with access to all relevant records, documents, and information necessary to conduct the audit. This includes, but is not limited to, financial records, production records, and inventory records. If the audit reveals any discrepancies, errors, or non-compliance with the terms and conditions of this Agreement, the Customer shall promptly rectify such discrepancies and reimburse the CDE for any discrepancies identified during the audit.
8.7 In the event of a material breach of this Agreement as a result of the audit, CDE reserves the right to terminate this Agreement in accordance with the termination provisions set forth herein. CDE’s exercise of its audit rights under this Clause shall not constitute a waiver of any other rights or remedies available to CDE under this Agreement or at law.

9. Warranty for Products

CDE warrants that for 6 months from delivery of the Products (Warranty Period) that the Products will materially comply with the requirements set out in the Schedule contained in the Master Service Agreement (MSA) entered into between the Parties. If any Products supplied by CDE do not comply with the warranty and the Customer notifies CDE in writing of that failure during the Warranty Period then CDE will, at its option, and as the Customer's sole remedy, either:

resupply or rectify the Products so that they meet the relevant requirements; and/or
provide a refund for the Products to the Customer.

10. Title & Risk

10.1 No title in the Products passes to the Customer until the Total Amount Payable has been received by CDE in full in respect of those Products.
10.2 In the case of payment by cheque, title will not pass to the Customer until the cheque is presented and cleared and in the case of payment by electronic funds transfer, no title passes to the Customer until clear funds have accrued to CDE's nominated account.
10.3 Risk in the Products passes to the Customer immediately on delivery of the Products.

11. Payment

11.1 Invoice Payment for Products

On or about the date of execution of an Order by the parties CDE will issue an invoice in respect of the Total Amount Payable for the Products that are the subject of that Order (Invoice).
The invoice will be payable in Australian Dollars (AUD) and shall include details of the nominated bank account of CDE.
Unless otherwise stated in the Order or on the Invoice, the Customer must pay each Invoice no later than 7 (seven) days after the date of the Invoice.

11.2 Interest

Where any amounts payable by the Customer under an Invoice have not been paid by the due date for payment, CDE may, in its discretion, charge interest on the outstanding amount at the rate of 6% per annum from the date when the relevant amount becomes overdue until it is paid in full, except to the extent the unpaid charges are the subject of a bona fide dispute.
Any amount of interest charged under clause 11.1 will be a separate debt which will immediately be due and payable by the Customer on demand by CDE.
Without limiting the rights of CDE under this clause 11.2 or under clause 17.3. if payment of any undisputed Invoice is outstanding, for more than 20 Business Days after the due date for payment of that Invoice, then CDE may cease providing all Products to the Customer under this Agreement and/or fully or partially suspend the Customer's access to the Connect Platform, until all amounts the subject of the undisputed and unpaid Invoice are paid in full to CDE.

11.3 Freight costs

All delivery fees, freight charges, insurance charges, customs duties and taxes are to be borne by the Customer and must be paid by the Customer.

12. Project Management

12.1 During the Term, CDE shall keep the Customer fully informed as to the progress and status of each Order and shall prepare and submit regular updates to the Customer via meetings and emails, and also highlight any actual and/or anticipated problems or difficulties relating to any Order.
12.2 Each Parties’ respective project managers shall at each Party’s own cost arrange and attend (personally or by representative) progress and review meetings as required to complete and fulfil Orders.

13. Customer’s Obligations

13.1 The Customer will:
- provide CDE with all information and documentation required for CDE to perform CDE’s obligations under this Agreement;
- not misuse the Products and ensure that its Personnel do not misuse the Products;
- not provide information that is not accurate, up to date or complete or is misleading or deceptive;
- obtain any third-party consents, licences and permissions necessary for CDE to provide the Products ordered by the Customer or receive personal information or data from Customer; and
- have a valid ABN and be registered for GST (applicable if located in Australia only).
13.2 The Customer acknowledges that it is solely responsible for the accuracy and completeness of all instructions and information provided to CDE in connection with the Products and the Customer warrants and represents that all instructions and information provided to CDE will be complete and accurate.

14. Confidentiality

14.1 CDE agrees not to disclose the Customer’s Confidential Information to any third party, to protect Confidential Information from any unauthorised disclosure and to only to use the Confidential Information for the purpose for which it was disclosed by the Customer and not for any other purpose.
14.2 The Customer, including its employees and contractors, agrees not to disclose CDE’s Confidential Information to any third party and to protect Confidential Information from any unauthorised disclosure and only to use the Confidential Information for the purpose for which it was disclosed or provided by CDE to the Customer, and not for any other purpose.
14.3 These obligations do not apply to Confidential Information that:
- is authorised by the other Party to be disclosed;
- is in the public domain and/or is no longer confidential, except as a result of breach of this Agreement;
- is received from a third party, except where there has been a breach of confidence; or
- must be disclosed by law or by a regulatory authority.
14.4 Except as expressly provided, each Party shall not at any time, whether during the Term or at any time thereafter, without the prior written consent of the other Party, use, disclose, exploit, reverse engineer, disassemble, decompile, copy or modify any of the other Party’s Confidential Information, or design around the other Party’s Confidential Information, or authorise or intentionally permit any third party to do the same.
14.5 The obligations under this clause will survive termination of this Agreement.

15. Intellectual Property Rights

15.1 CDE Supplied Materials

a. The CDE Supplied Material and the Products contain material that is owned by or licensed to CDE and is protected by Australian and international laws. The parties agree that CDE will continue to own all Intellectual Property Rights in the CDE Supplied Material and the Products and nothing in this Agreement constitutes a transfer of any such Intellectual Property Rights to the Customer.
b. The Customer must not infringe any of CDE's Intellectual Property Rights.
c. CDE grants the Customer a licence to use the CDE Supplied Material and Products to the extent necessary in order for the Customer to use the Products for the purposes for which they were supplied.
d. CDE warrants and represents to the Customer that:
- it has all of the necessary rights to supply the CDE Supplied Material and the Products to the Customer; and
- the use of the CDE Supplied Material and the Products by the Customer as permitted by this Agreement will not infringe any third party’s Intellectual Property Rights.
14.4 Except as expressly provided, each Party shall not at any time, whether during the Term or at any time thereafter, without the prior written consent of the other Party, use, disclose, exploit, reverse engineer, disassemble, decompile, copy or modify any of the other Party’s Confidential Information, or design around the other Party’s Confidential Information, or authorise or intentionally permit any third party to do the same.
14.5 The obligations under this clause will survive termination of this Agreement.

15.2 Customer Supplied Material

a. The Customer Supplied Material contains material that is owned by or licensed to the Customer and is protected by Australian and international laws. The parties agree that the Customer will continue to own all Intellectual Property Rights in the Customer Supplied Material and nothing in this Agreement constitutes a transfer of any such Intellectual Property Rights to CDE.
b. The Customer grants to CDE a licence to use the Customer Supplied Material to the extent necessary in order for CDE to provide the Products.
c. The Customer warrants and represents to CDE that:
- it has all of the necessary rights to supply the Customer Supplied Material to CDE; and
- the use of the Customer Supplied Material by CDE as permitted by this Agreement will not infringe any third party’s Intellectual Property Rights.
d. The Customer shall promptly notify CDE of any inventions concerning the Products generated by it in the performance of this Agreement that are conceived or reduced to practice by the Customer either solely or jointly with CDE (Inventions). The Customer agrees to assign, and hereby assigns to CDE, all rights, title and interest in and to Inventions. Ownership of all other inventions (i.e., inventions other than Inventions) shall follow inventorship, with inventorship determined in accordance with prevailing patent law. The Customer will sign and deliver to CDE any documents and take reasonable actions that are needed or desirable in order to confirm CDE’s title in the Inventions.

15.3 Moral Rights

To the extent any Customer Personnel or any other person have any Moral Rights in any Customer Supplied Material, the Customer warrants it has obtained for the benefit of CDE all consents necessary to use, reproduce, adapt and modify that Customer Supplied Material as permitted by this Agreement without attributing the Moral Rights holder or any other person as an author of or contributor to that material.

15.4 Notice of infringements

a. The Customer will provide prompt written notice to CDE if the Customer becomes aware of any actual or threatened infringement of any Intellectual Property Rights arising from CDE's use of any Customer Supplied Material or from the Customer's use of the CDE Supplied Material and/or the Products.
b. The Customer will provide all reasonable assistance to CDE in relation to preventing any infringement of any Intellectual Property Rights of CDE or any Related Entity of CDE.

16. Liability and Warranty

16.1 CDE Exclusion

To the maximum extent permitted by law and subject to clause 16.2:

a. CDE will not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any Consequential Loss suffered or incurred by the Customer under or in connection with this Agreement (including under any indemnity). In this clause Consequential Loss means:
- loss of profits, loss of business, loss of revenue, depletion of goodwill and/or similar losses, loss or corruption of data or information, or pure economic loss; or
- any other loss suffered or incurred by a person that does not arise according to the usual course of things out of any breach of this agreement or other event giving rise to the liability,
whether or not such loss was in the contemplation of the parties at the date of this Agreement; and
b. CDE's total aggregate liability to the Customer for all claims under or in connection with this Agreement, whether for breach of contract, in tort (including negligence), for misrepresentation, under an indemnity or otherwise arising, shall be limited to the total amount paid by the Licensee during the first 12 months of the Term (and if a claim is made prior to the expiry of the first 12 months of the Term, the liability will be limited to the total amount paid under this Agreement up to the date the claim was made).

16.2 Non-excludable rights

To the extent permitted by law, CDE excludes all conditions and warranties implied by custom, law or statute not set out in this Agreement. Nothing in this Agreement excludes, restricts or modifies any consumer guarantee, right or remedy conferred on the Customer by the Australian Consumer Law, Schedule 2 of the Competition and Consumer Act 2010 (Cth) or any other applicable law that cannot be excluded, restricted or modified by agreement. To the fullest extent permitted by law, CDE's liability for a breach of a non-excludable guarantee referred to in this clause 16.2 is limited, at CDE's option, to:

a. in the case of goods, any one or more of the following:
- the replacement of the goods or the supply of equivalent goods;
- the repair of the goods;
- the payment of the cost of replacing the goods or of acquiring equivalent goods; or
- the payment of the cost of having the goods repaired; or
b. in the case of services:
- the supplying of the services again; or
- the payment of the cost of having the services supplied again.

16.3 Contribution

To the extent permitted by law, either Party’s liability under or in connection with this Agreement will be reduced to the extent, if any, to which the other Party’s acts or omissions cause or contribute to its own loss or damage.

17. Termination

17.1 Termination of MSA for convenience

A Party may terminate this Agreement at any time on one month's written notice to the other Party. If:

a. the Customer terminates this Agreement under this clause; the Customer must pay to CDE the Termination for Convenience Payment equivalent to any minimum order quantity for the initial term of the Agreement; and
b. CDE terminates the Agreement under this clause, it may cease to supply Products under all Orders with effect from the date of termination, except to the extent the Products have been paid for.

17.2 Termination of MSA for default

Either party may terminate this Agreement with immediate effect if:

a. a party breaches this Agreement and the breach is incapable of remedy, or if capable of remedy was not remedied within 30 Business Days of a request from the non-offending party;
b. a party becomes subject to an Insolvency Event;

17.3 CDE termination rights for non-payment

CDE may terminate this Agreement with immediate effect if the Customer fails to pay any undisputed amount within 20 Business Days after the due date (as provided by clause 11).

17.4 Termination of Order by CDE

CDE may immediately terminate all or any part of an Order by written notice if CDE, acting reasonably, considers that any use of the Products by the Customer is in relation to counterfeit goods or is otherwise unlawful.

17.5 Termination of Order

Either party may immediately terminate an Order by written notice if that party is entitled to do so under an express right of termination set out in the MSA or that Order, or if the other party:

a. is the subject of an Insolvency Event; or
b. breaches that Order and:
- if the breach is capable of remedy, fails to rectify the breach within 30 Business Days of receiving written notice from the other specifying the breach and requiring its rectification; or
- the breach is not capable of remedy.

18. Events Following Termination

18.1 On termination of this Agreement for any reason:

a. all existing Orders will also terminate;
b. the Customer agrees to pay all unpaid Invoices within 14 days;
c. the Customer must pay for all Products supplied by CDE prior to termination, including any Products which have been supplied but had not yet been invoiced as at the termination date, within 14 days of CDE's demand for payment.
d. CDE may terminate the Customer's access to the Connect Platform.

18.2 On termination of this Agreement the Parties agree to promptly at their own cost, return, or delete or destroy, the other Party’s Confidential Information and/or documents containing or relating to the other Party’s Confidential Information.

18.3 The accrued rights, obligations and remedies of the Parties are not affected by the termination of this Agreement.

18.4 The provisions of clauses 3, 5, 11, 15, 16, 17, 18, 20, 29 and 35 will survive the expiry or termination of this Agreement along with any other terms which by their nature are intended to survive.

19. Non-Solicitation

19.1 The Customer agrees that it will not, directly or indirectly, canvass, solicit or entice, employ, induce or attempt to employ, induce, solicit or entice away from CDE any employee or contractor of CDE either during the Term and for a period of 12 months after the date of expiry or termination of this Agreement.

20. Taxes

20.1 The Customer is responsible for all Taxes payable under this Agreement.

20.2 A reference in this clause 20 to a term defined or used in A New Tax System (Goods and Services Tax) Act 1999 (Cth) is, unless the context indicates otherwise, a reference to that term as defined or used in that Act.

20.3 If GST is imposed on a supply made under or in connection with this Agreement, the consideration provided for that supply will be increased by the rate at which the GST is imposed and the additional consideration will be payable at the same time as the consideration to which the additional consideration relates.

20.4 CDE will issue a tax invoice to the recipient of the supply at the time of payment of the GST inclusive consideration or at another time agreed by the parties.

20.5 If one of the parties is entitled to be reimbursed for an expense or outgoing incurred in connection with this Agreement, the amount of the reimbursement will be net of any input tax credit which may be claimed by the party being reimbursed in relation to that expense or outgoing.

21. Notices

21.1 Any Notice must be in legible writing and in English and to the party’s contact details set out in the Schedule contained in the Master Service Agreement (MSA) entered into between the Parties or other contact details notified by a party to the other party in accordance with this clause 21.

21.2 Any Notice will be regarded as being given by the sender and received by the addressee:

a. if delivered in person, when delivered to the addressee;
b. if posted using registered post from within Australia, three (3) Business Days from and including the date of postage;
c. if posted from overseas using international courier service, ten (10) Business Days from and including the date of postage; or
d. if sent by facsimile transmission or email, when received by the addressee unless delivery is not on a Business Day or is after 5:00pm in which case the Notice will be regarded as received at 9:00am on the following Business Day.

22. Assignment

22.1 A Party may assign any rights or benefits under this Agreement at any time but only with the prior written consent of the other party, which must not be unreasonably withheld.

23. Severability

23.1 If any provision, or the application of any provision, of this Agreement is prohibited, invalid, void, illegal or unenforceable in any jurisdiction:

a. this will not affect the validity and enforceability of the provision or part in other jurisdictions;
b. the provision or part will only be ineffective to the extent of the prohibition, invalidity, voidness or illegality; and
c. the provision or part will be severed and will not affect the validity or enforceability of the remaining provisions or parts of this Agreement.

24. Entire Agreement

25.1 Any waiver of a right under this Agreement must be in writing and signed by the party granting the waiver and will not operate as a waiver in relation to any subsequent matter.

25. Waiver

25.1 Any waiver of a right under this Agreement must be in writing and signed by the party granting the waiver and will not operate as a waiver in relation to any subsequent matter.

25.2 Any failure, delay, forbearance or indulgence by a party in an exercise, or partial exercise, of a right arising under this Agreement will not result in a waiver of that right or prejudice or restrict the rights of the party.

26. Further Assurances

26.1 Each party must do all things and execute all further documents necessary to give full effect to this Agreement.

27. Variations

27.1 Any variation of, or amendments to, any terms of this Agreement must be in writing and signed by both parties.

28. Force majeure

28.1 Neither party will be liable for any delay or failure to perform its obligation under this Agreement if such delay is due to a Force Majeure event. If either party is delayed from performing its obligations due to such Force Majeure event for a period of at least 2 months, Either party may terminate this Agreement by giving the Customer 5 Business Days’ notice in writing.

29. Announcement

29.1 The parties acknowledge that continuous disclosure requirements and announcements which are required under the rules of any stock exchange or by Applicable Law or Government regulation may be made by either party without written consent of the other party. Regarding other press releases or public statements, the parties shall consult with each other before issuing any press release or otherwise making any public statements with respect to this Agreement and shall not issue any such press release without the other party’s prior written consent, which consent will not be unreasonably withheld.

30. Advice

30.1 Each party acknowledges that the party has received legal advice or has had the opportunity to obtain legal advice in relation to this Agreement.

31. Counterparts

31.1 This Agreement may be executed in any number of counterparts all of which together will constitute one agreement. This Agreement may also be activated by the signing of an MSA containing a link to this agreement.

32. Cumulative Rights

32.1 The rights arising out of this Agreement do not exclude any other rights of either party.

32.2 Each indemnity in this Agreement is a continuing obligation that is separate and independent from the other obligations under this Agreement.

32.3 CDE is not obliged to take any action, or incur any expense, before enforcing any indemnity under this Agreement.

32.4 Each exclusion, limitation, indemnity or other benefit set out in this Agreement for the benefit of CDE will also be held by CDE for the benefit of each member of the CDE Personnel.

33. Costs

33.1 Each party will bear the party’s own costs and expenses in relation to the negotiation, preparation, and execution of this Agreement.

34. Governing Law

34.1 This Agreement will be governed by the laws of, and the parties irrevocably submit to the exclusive jurisdiction of the courts of New South Wales, Australia.

35. Data Protection

35.1 The Customer must provide any data requested by CDE in order for CDE to provide the Products.

35.2 The Customer grants to CDE a limited licence to copy, transmit, store and back-up or otherwise access any such data during the Term solely:

a. to supply the Products including to enable the Customer, its Personnel and any authorised users to access and use the Products;
b. for diagnostic purposes;
c. to test, enhance and otherwise modify the Products;
d. to develop other products provided CDE de-identifies the data; and
e. as reasonably required for the performance CDE’s obligations under this Agreement.

35.3 The Customer represents and warrants that any and all data supplied by the Customer or otherwise accessed by CDE through the provision of the Services is the sole and exclusive property of the Customer or the Customer has secured any and all authorisations and rights to use the data as applicable.

35.4 The Customer acknowledges and agrees that:

a. CDE may relocate the data to another jurisdiction; and
b. CDE is not responsible for the integrity or existence of any data on the Customer’s system, network or any device controlled by the Customer or its Personnel.

35.5 Each party must comply with all applicable Privacy Laws in relation to any Personal Information that is collected, stored, used, disclosed or otherwise dealt with under or in connection with this Agreement.

35.6 If CDE suspects that a Data Incident has occurred, it will promptly notify the Customer.

36. Definitions and Interpretation

36.1 Definitions

In this Agreement:

Agreement means the documents comprising the contract between the parties for the procurement of Products, being this Master Supply Agreement (MSA) for Codes (including the background, schedules and annexures (if any)) and the applicable Orders;
‍API means an Application Programming Interface which has been approved by CDE and creates an interface between a production line to CDE’s Connect Platform.
‍APP means an application able to be downloaded by a user or customer for use on a mobile device.
‍Authority means any government or governmental, semi-governmental, administrative or judicial body, tribunal, department, commission, authority, agency, minister, statutory corporation, instrumentality or entity;
‍Business Day means a day which is not a Saturday, Sunday or public holiday in the location of the Customer’s address set out in this Agreement;
‍CDE means Codeifai Limited, an Australian Company bearing ACN 108 649 421
‍Code means a machine-readable code generated by CDE and supplied to the Customer whether directly by CDE or by interface to a third party production line;
‍Commencement Date means the date set out in the Schedule contained in the Master Service Agreement (MSA) entered into between the Parties;
‍Confidential Information means any:

a. information, whether in visual, oral, documentary, electronic, machine-readable, tangible, intangible or any other form, relating to the Customer or any Related Entity of the Customer including but not limited to any specifications, formulae, know how, concepts, inventions, ideas, software, designs, copyright, trade secrets or any information relating to any business, products, markets, operations, processes, techniques, technology, forecasts, strategies or any other matter;
b. Customer Supplied Material;
c. CDE Supplied Material;
d. negotiations in relation to, and the terms of, this Agreement;
e. information designated as confidential by the Customer or by CDE; and
f. information that is by its nature confidential;

Connect Platform means the software platform operated by CDE which enables certain information to be displayed to persons who have scanned a Code;
‍Corporations Act means the Corporations Act 2001 (Cth);
‍Customer Supplied Material means any Material supplied by the Customer to CDE for the purposes of CDE providing the Products, including any trade marks (whether or not registered);
‍Data Incident means any actual or CDE suspected:

a. breach of CDE’s obligations relating to protection of Personal Information under this Agreement;
b. unauthorised access to, or unauthorised disclosure of, any Personal Information; or
c. loss of Personal Information, including where Personal Information is damaged or corrupted so that it becomes unusable,

where, as determined by CDE, the access or disclosure is likely to result in serious harm to one or more individuals and CDE has not been able to prevent the likely risk of serious harm with remedial action.

Defective Product means a Product that has defects in design, workmanship or parts or which does not materially conform with the requirements of this Agreement but does not include any defects that were:

a. caused by the negligence or misuse of the Customer or another person other than CDE, the Customer failing to store the Products correctly or malicious damage caused by the Customer or another person other than CDE;
b. caused by fair wear and tear; or
c. present in the Proofs for the Products that the Customer approved;

Documentation means any user manual or other operational documentation provided by CDE in respect of the Products;
‍Delivery Date means the date set out in an Order for CDE to deliver the Products;
‍Delivery Location means the location set out in an Order for CDE to deliver the Products;
‍Deposit means the deposit amount required to be paid by the Customer as specified by CDE when it returns a signed copy of the Order to the Customer;
‍FOB means “free on board” the location nominated in CDE’s quotation or Orders where the Goods are shipped from.
‍Force Majeure means an act of God, fire, lightning, explosion, flood, insurrection or civil disorder or military operations, government or quasi government restraint, expropriation, prohibition, intervention, direction of embargo, inability or delay in obtaining government or quasi government approvals, consents, permits, licenses or authorities, strikes, lockouts or other industrial disputes of any kind, epidemic or pandemic, or any other cause whether similar or not to the foregoing, outside of the affected party's control;
‍Goods means the goods set out in an Order, Schedule contained in the Master Service Agreement (MSA) entered into between the Parties or a Quotation;
‍Initial Term has the meaning set out in the Schedule contained in the Master Service Agreement (MSA) entered into between the Parties.
‍Insolvency Event means any of the following events or any analogous event in respect of a party:

a. that party disposes of the whole or any part of its assets, operations or business other than in the ordinary course of business;
b. that party ceases, or threatens to cease, carrying on the business;
c. that party is unable to pay its debts as the debts fall due;
d. any step is taken by a mortgagee to take possession or dispose of the whole or any part of that party’s assets, operations or business;
e. any step is taken for that party to enter into any arrangement or compromise with, or assignment for the benefit of, its creditors or any class of its creditors; or
f. any step is taken to appoint an administrator, receiver, receiver and manager, trustee, provisional liquidator or liquidator over the whole or any part of that party’s assets, operations or business;

Intellectual Property Rights means any present or future rights conferred by statute, common law or equity in any part of the world in relation to any confidential information, copyright, trademarks, service marks, designs, patents, circuit layouts, plant varieties, business names, domain names, inventions, trade secrets or other results of intellectual activity in any industrial, commercial, scientific, literary or artistic fields whether or not registered or registrable and includes any rights to protect or apply for the registration, renewal or extension of such rights and includes Moral Rights;
‍Liability means any loss, liability, cost, payment, damages, debt or expense (including but not limited to reasonable legal fees);
‍Material means any physical products, data, plans, instructions, documents, descriptions, reports, advice, accounts, drawings, photographs or any other material;
‍Minimum Order Quantity means the minimum amount specified in the Schedule contained in the Master Service Agreement (MSA) entered into between the Parties;
‍Moral Rights means rights of integrity and attribution existing now or in the future in respect of property under the Copyright Act 1968 (Cth);
‍MSA means the Master Supply Agreement accepted by the Customer;
‍Notice means any notice or other communication by one party to the other party under the terms of this Agreement including but not limited to any request, demand, consent, waiver or approval;
‍Notice Details means the contact details for each of the parties as set out in the Schedule contained in the Master Service Agreement (MSA) entered into between the Parties;
‍Option Period has the meaning set out in clause 1.1(b);
‍Order means an order for Products issued under this Agreement;
‍Party means (as the context requires) CDE or the Customer and the Parties means both CDE and the Customer;
‍Payment Terms means the payment terms set out in an Invoice;
‍Personal Information has the meaning given to it in the Privacy Act.
‍Privacy Act means the Privacy Act 1988 (Cth).
‍Personnel means any employee, servant, contractor, subcontractor, agent, partner, director or officer of a party;
‍Price means the price for Products as set out in the Schedule contained in the Master Service Agreement (MSA) entered into between the Parties;
‍Privacy Laws means:

a. the Privacy Act;
b. all applicable laws affecting privacy, Personal Information or the collection, handling, storage, processing, use or disclosure of data; and
c. any legally binding ancillary rules, guidelines, orders, directions, directives, codes of conduct or other instruments made or issued thereunder, as amended from time to time.

Products means the goods and/or services (as the context requires) described in the Schedule contained in the Master Service Agreement (MSA) entered into between the Parties, Quotation, Order or Invoice and accepted by the Customer which includes Tracers, Scanners, API, APP, Codes and the right to access and use the Connect Platform or any other platform provided by CDE;
‍Proof means a sample of the Products provided to the Customer for the purposes of verifying and checking the accuracy of the Products prior to CDE commencing the production and supply of the Products;
‍Related Entity has the meaning set out in the Corporations Act 2001 (Cth);
‍Taxes means any present or future tax, fee, levy, duty, charge, withholding, penalty, fine, impost or interest imposed by any Authority including but not limited to any tax in relation to sales, use, property, value added, goods and services, withholding, turnover, stamp duty, interest equalisation, business, occupation, excise, income, profits or receipts;
‍Term means the Initial term and any Option Period.
‍Termination for Convenience Payment means the following amount:

a. (A – B) x C
Where:
A is the Minimum Order Quantity for the 12 month period in which termination occurred
B is the number of Codes supplied during the 12 month period in which termination occurred
C is the Price for each Code (excluding any price review). If C is a negative number it will be deemed to be nil. plus
b. D x E
Where:
D is the aggregate of all the Minimum Order Quantities relating to the 12 month periods remaining in the Term which have not commenced as at the date of termination
E is the Price for each Code (excluding any price review).

Total Amount Payable in respect of any Products means the total amount payable to CDE by the Customer under or in connection with this Agreement, as specified in the relevant Invoice issued by CDE in respect of those Products;
‍Tracer means CDE’s tracer material supplied in masterbatch form in ink, plastic or varnish according to CDE’s best inclusion practice and described in the Schedule contained in the Master Service Agreement (MSA) entered into between the Parties, Quotation, Order or Invoice.
‍Scanner means CDE’s proprietary scanner units either stand alone or supplied as an OEM device for inclusion in a customer’s equipment;
‍CDE Supplied Material means any information, Material, Confidential Information or Intellectual Property Rights created, produced or developed by CDE or any member of CDE’s Personnel whether prior to, in the course of or as a result of CDE providing the Products;

36.2 Interpretation