Legal

Terms and Conditions

1 General

1.1 Any terms or conditions that are contained in any purchase order or in any other document that is issued by the Customer or in correspondence or documents passing between First Wave and the Customer:

(a) have no effect, and will not affect any agreement between First Wave and the Customer pursuant to these Terms, even if First Wave has had notice of those terms or conditions; and

(b) do not constitute an offer or a counter-offer by the Customer.

2 Quotations and Ordering

2.1 If requested to do so by the Customer, First Wave may issue a quotation (“Quotation”) in respect of any Services proposed to be provided under the Terms.

2.2 A Quotation may contain special terms and conditions that are applicable to some or all of the Services referred to in the Quotation (“Special Terms”). In that event those Special Terms will be incorporated into these Terms.

2.3 Any Quotation will remain open for acceptance for up to thirty (30) days from the date of issue, or such other time as specifi ed in the Quotation. First Wave may withdraw a Quotation at any time.

3 Variations

3.1 Any Quotation given by First Wave is based on the information provided to First Wave at the time of the Quotation, any assumptions stated in the Quotation being and remaining correct, and the Customer complying with its obligations under these Terms. First Wave will be relieved from relevant obligations under the Quotation to the extent that any of those matters or assumptions is or becomes incorrect, or if the Customer does not comply or delays in complying with those obligations. In that event, First Wave may issue a variation to the Quotation, including the fees and charges payable to First Wave.

3.2 If the Customer wishes to vary the scope of the Services, the Customer will give reasonable notice of such variation to First Wave. First Wave may issue an amended Quotation refl ecting the agreed variation,

and the fees and charges payable by the Customer will be varied in accordance with the amended Quotation.

4 Software Licence

4.1 Where in the course of providing Services, First Wave installs any software on the Customer’s e-mail or computing facilities (Software), First Wave will grant the Customer a non-exclusive and non-transferable licence to possess and use the Software only in connection with and for the purposes of assisting First Wave to provide the Services on the Customer’s e-mail and computing facilities as described in the Quotation (“the Licence”).

5 Invoicing, Payment & Credit

5.1 The fees and charges payable to First Wave for the Services shall be calculated and payable in accordance with the Quotation (as varied by First Wave from time to time in accordance with these Terms).

5.2 Unless otherwise specifi ed in writing, all fees and charges specifi ed in a Quotation exclude any tax, including any Goods and Services Tax within the meaning of the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (“GST”), duty or impost levied in respect of the Services (other than any tax assessable on First Wave’s own income) and are in Australian Dollars.

5.3 Payment is due within thirty (30) days of invoice unless First Wave otherwise specifi es in writing in a Quotation. If First Wave does not receive payment by the due date for payment, then without limiting its rights under the Terms or generally, First Wave may:

(a) charge the Customer interest on the outstanding amount at 2% above the overdraft rate available from First Wave’s bankers (which the Customer must pay at the same time as the outstanding amount); and/or

(b) by written notice to the Customer, suspend the provision of any Services and the Customer’s right to use any Software under any Licence until the Customer has paid the outstanding amount, interest and any amount payable under clause 5.4

5.4 The Customer is liable for all reasonable expenses (including contingent expenses such as debt collection commission) and legal costs (on a solicitor/own client basis) incurred by First Wave in the enforcement of the Customer’s obligations and the recovery of monies due from the Customer to First Wave.

5.5 First Wave is entitled to set-off against any money owing to the Customer amounts owed to First Wave by the Customer on any account whatsoever.

5.6 The Customer may apply to open a credit account with First Wave, by completing First Wave’s credit application form. The terms and conditions of the provision of credit by First Wave may be varied at First Wave’s discretion and without prior notice to the Customer. First Wave may vary, revoke or withdraw any approval previously given to the Customer to extend credit to the Customer at any time and for any reason.

5.7 First Wave may review the creditworthiness of the Customer from time to time. During this process, First Wave may require credit checks to be conducted in respect of the Customer and its officers and shareholders, and the Customer agrees that it will co-operate with First Wave in the conduct of such credit checks.

6 Warranties

6.1 First Wave warrants that it will perform the Services with due care and skill using appropriately trained and qualified personnel.

6.2 Except for the express warranties set out in the Terms, to the extent permitted by the law, First Wave expressly excludes all conditions and warranties. Where legislation implies any condition or warranty (“non-excludable term”), and that legislation avoids or prohibits provisions in a contract excluding, or modifying the application or exercise of or liability under such a non-excludable term, that non-excludable term is deemed to be included in the Terms. However, First Wave’s liability for any breach of that non-excludable term is limited, at First Wave’s option, to the supply of equivalent goods or services, or paying the cost of supplying equivalent goods or services.

7 Liability

7.1 Except for undertakings to indemnify or fraud, in no event will either party be liable to any party for any indirect, punitive, special, incidental or consequential loss in connection with or arising out of the Terms, any Quotation, any Services or the Customer’s or First Wave’s use of the Software (including for loss of profi ts, use, data, or other economic advantage), regardless of how it arises, whether for breach of the Terms or on any other basis, and even if it has been previously advised of the possibility of such damage.

7.2 First Wave’s liability under or in connection with the Terms (whether in contract, equity, negligence, tort or for breach of statute or otherwise) will be reduced by the extent, if any, to which the Customer or any other party contributed to the loss.

7.3 First Wave’s total liability under any accepted Quotation shall not exceed the total fees paid by the Customer for the Services under that Quotation.

8 Termination

8.1 First Wave may terminate its agreement under the Terms or any Quotation by written notice to the Customer if the Customer:

(a) breaches any provision of the Terms and does not remedy that breach within fourteen (14) days of written notice by First Wave;

(b) becomes insolvent, or commits any act of insolvency, compounds with its creditors, has judgment entered against it in any court or, being a company, has a provisional liquidator, a liquidator, a receiver, a receiver manager or an administrator appointed (an “Insolvency Event”); or

8.2 On termination of the agreement under the Terms or any Quotation for any reason:

(a) all sums then outstanding will become immediately due and payable to First Wave;

(b) First Wave may:

(i) retain any moneys paid by or on behalf of the Customer;

(ii) charge the Customer a reasonable sum for work performed for which it has not previously rendered an invoice;

(iii) be regarded as discharged from any further obligations under that agreement; and

(iv) pursue any additional or alternative remedies provided by law.

9 Force Majeure

9.1 First Wave will not be liable to the Customer or to any third party for any non-performance or delay in the performance of its obligations under the Terms or a Quotation, if a Force Majeure causes the non-performance or delay, and First Wave gives the Customer notice of it. In no event will this provision affect the Customer’s obligation to make any payments to First Wave.

9.2 If a Force Majeure delays or prevents First Wave from performing its obligations for a period exceeding sixty (60) days, First Wave may immediately terminate the Terms or the Quotation by written notice to the Customer.

9.3 For the purposes of this clause 9, “Force Majeure” means a circumstance beyond First Wave’s reasonable control which results in First Wave being unable to observe or perform on time an obligation under the Terms or a Quotation. Those circumstances include acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster, acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution, and strikes.

10 Engagement not Exclusive

First Wave is providing Services to the Customer on a non-exclusive basis and may provide services of the same or a similar nature as the Services to any other party, provided that in doing so it does not breach any obligation of confidentiality to the Customer under clause 5.6.

11 Sub-Contracts

First Wave may engage third parties on a subcontract or consultancy basis, to provide or to assist in the provision of Services.

12 General Provisions

12.1 The Terms and any Quotation are governed by and will be interpreted according to the laws of New South Wales, and First Wave and the Customer consent and submit to the jurisdiction of the courts of New South Wales.

12.2 If any provision of the Terms or a Quotation proves to be illegal or unenforceable pursuant to any statute or rule of law or for any other reason, that provision is deemed omitted without affecting the remaining provisions, and the remaining provisions of the Terms and Quotation (if applicable) shall continue in full force and effect.

12.3 Any notice required or contemplated by the Terms or a Quotation is deemed to have been properly given if it is in writing, properly addressed and delivered personally, or mailed postage prepared addressed or by fax to the Customer or First Wave at their addresses set out in the Quotation, or such other address nominated by a party in writing.

12.4 Nothing under the Terms or a Quotation constitutes a relationship of employer and employee, principal and agent, joint venture or partnership between First Wave and the Customer.

12.5 In the Terms and the Quotation, unless the contrary intention appears:

(a) clause headings are for ease of reference only and are not relevant to interpretation;

(b) a reference to a clause number includes a reference to its subclauses;

(d) words importing a gender include any other gender;

(e) a reference to a person includes bodies corporate and unincorporated associations and partnerships;

(f) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings; and

(g) monetary references are references to Australian currency.

First Wave