General Terms and Conditions of Sale

Effective for ORDERS MADE on or after 28 November 2023

The Supplier does business with Customers under these General Terms. These General Terms supersede those contained in any Customer request for quotation or Order submitted to the Supplier which are inconsistent with, different from, or in addition to these General Terms.

These General Terms are available at and are subject to change by the Supplier at any time. Any changes to these General Terms will apply to Orders made after the effective date of the change.

1.  Definitions

In these General Terms:

1.1.  ‘ACICA Arbitration Rules’ means the rules for arbitration published by the Australian Centre for International Commercial Arbitration from time to time.

1.2.  ‘Additional Amount’ has the meaning given in clause 2.

1.3.  ‘Agreement’ means the agreement formed on acceptance of an Order by the Supplier pursuant to clause 2.

1.4.  ‘Australian Consumer Law’ means Schedule 2 to the Competition and Consumer Act 2010 (Cth).

1.5.  ‘Business Day’ means a day that is not a Saturday, Sunday or public holiday in the state of Victoria, Australia

1.6.  ‘Collection Period’ means as soon as reasonably practicable and in any event within 5 Business Days of the Supplier notifying the Customer in writing that the Order is ready for collection.

1.7.  ‘Confidential Information’ means all information which is provided by or on behalf of one party (‘Discloser’) to the other party (‘Recipient’) of any nature and in any form for or in connection with this Agreement, and includes:

  1.  the terms of the Agreement;
  2.  information regarding inventions, trade secrets, know-how, ideas, data, procedures, formulations, materials, designs, software, methods, development or experimental work, commercial, clinical, regulatory or technical plans and programs, but does not include information which the Recipient can prove:
  3.  is or becomes readily available in the public domain, other than as a result of a breach of an obligation of confidence owed to the Discloser;
  4.   is rightfully known to or in the possession or control of it before it received it and is not subject to an existing obligation of confidence between the parties;
  5.  is developed by or for it independently of the disclosure; or
  6.  is provided to it by a third party who is not under an obligation of confidence in respect of the information, and, for the avoidance of doubt, the contents of the Proposal and the Order are deemed Confidential Information of the Supplier.

1.8.  ‘Consequential Loss’ means any Loss which is indirect or consequential, special, incidental or punitive, or which results from some special circumstance or supervening event; or which is by way of loss of revenue, loss of profits, loss of goodwill or credit, loss of business reputation, future reputation or publicity, loss of use, loss of interest, damage to credit rating, loss or denial of opportunity, or increased overhead costs; loss of production; delay costs; or which relates to expenses caused by the breach or outgoings rendered futile by the breach; or which is not a normal loss or an immediate result of a breach of contract; or which is suffered as a result of a claim by a third party; or which consists of a claim for personal injury or damage to property.

1.9.  ‘Customer’ means the customer purchasing goods or services from the Supplier as set out in the Order.

1.10.  ‘Customer Developed IP’ means all Intellectual Property Rights in any reports, data (including patient data) and information uploaded to the Software or otherwise provided by or on behalf of the Customer to the Supplier.

1.11.  ‘Delivery’ means delivery of the Products to the Customer’s nominated shipping agent.

1.12.  ‘Delivery Location’ means the location for collection of the Products set out in the Proposal or otherwise notified in writing by the Supplier to the Customer from time to time.

1.13.  ‘Dispute’ has the meaning given in clause 1.

1.14.  ‘Dispute Notice’ has the meaning given in clause 2.

1.15.  ‘General Terms’ means these General Terms and Conditions of Sale.

1.16.  ‘Goods and Services Tax’ or ‘GST’ has the meaning given in the GST Act.

1.17.  ‘GST Act’ means A New Tax System (Goods and Services Tax) Act 1999 (Cth).

1.18.  ‘Instructions For Use’ or ‘IFU‘ means the information provided by the Supplier included with the medical device to inform the Customer of the device’s intended purpose, indicated use, and any precautions to be taken.

1.19.  ‘Intellectual Property Rights’ means all industrial and intellectual property, whether protectable by statute, at common law or in equity, including patents, designs, circuit layouts, copyrights, confidential information, trademarks and all other intellectual property rights defined in Article 2 of the Convention Establishing the World Intellectual Property Organisation of July 1967.

1.20.  ‘IP Claim’ means any claim or action brought against the Customer alleging that the possession or use of the Software or the Supplier Background IP (or any part thereof) in accordance with the terms of this Agreement infringes the Intellectual Property Rights of a third party.

1.21.  ‘Loss’ means any loss, damage, cost, interest, expense, fee, penalty, fine, forfeiture, assessment, demand, action, suit, claim, proceeding, cause of action, liability or damages incurred by a person, and includes, where applicable, legal costs on a solicitor and own client basis.

1.22.  ‘Order’ means any purchase order, acceptance form or other purchasing documents (in whatever form, whether electronic, written or otherwise) provided by a Customer to the Supplier in respect of any Products.

1.23.  ‘Permitted Purpose’ means the performance of this Agreement or the exercise of any rights granted under or contemplated by this Agreement.

1.24.  ‘Personal Information’ has the meaning given in the Privacy Act.

1.25.  ‘Personnel’ means, in respect of a party, that party’s directors, officers, employees, contractors, sub-contractors and agents.

1.26.  ‘Privacy Act’ means the Privacy Act 1998 (Cth).

1.27.  ‘Privacy Regulations’ means the General Data Protection Regulation (Regulation (EU) 2016/679), the Health Insurance Portability and Accountability Act of 1996 (US), and all other applicable privacy laws.

1.28.  ‘Products’ means any products supplied by the Supplier to the Customer under this Agreement, as described in the Order.

1.29.  ‘Proposal’ means a quotation or proposal from the Supplier to the Customer relating to the proposed supply of Products.

1.30.  ‘Proposed Publication’ has the meaning given in clause 2.

1.31.  ‘Purchase Price’ means the price payable by the Customer for the Products, as set out in the Proposal.

1.32.  ‘Software’ means all software and computer programs uploaded to any of the Products on Delivery or used within the cloud, including any maintenance releases.

1.33.  ‘Specifications’ means the specifications provided to the Customer in the Instructions for Use, which are included with the Products.

1.34.  ‘Study’ has the meaning given in clause 3.

1.35.  ‘Supplier’ means Atmo Biosciences Limited ACN 626 053 183.

1.36.  ‘Supplier Background IP’ means all Intellectual Property Rights which exist at the date of the Agreement and are owned by or licensed to the Supplier (or its related entities), or are developed after the date of the Agreement by the Supplier and which do not incorporate any Customer Developed IP.

2.  Interpretation

The following rules apply to these General Terms unless the context expressly requires otherwise.

2.1.  Headings are for convenience only and do not affect interpretation.

2.2.  The singular includes the plural and vice versa.

2.3.  If a word or phrase is defined, its other grammatical forms have a corresponding meaning.

2.4.  A reference to include, includes or including are to be construed without limitation.

2.5.  A reference to a party includes their successors, permitted substitutes and assigns.

2.6.  A reference to legislation or to a provision of legislation includes a modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it.

2.7.  A reference to dollars and $ is to Australian currency.

2.8.  If any amount becomes payable under the Agreement on a day which is not a Business Day, that amount is payable on the next Business Day.

2.9.  Any provision in the Agreement which is illegal, void or unenforceable will be ineffective to the extent only of such illegality, voidness or unenforceability and such illegality, voidness or unenforceability will not invalidate any other provision of the Agreement.

2.10.  All representations, warranties and indemnities are separate and independent and continuing obligations, and survive termination or discharge of the Agreement.

3.  Acceptance of Orders

3.1.  Any Proposal made by the Supplier is valid for thirty (30) days from the date of the Proposal. Orders received after this date may be rejected by the Supplier at its discretion.

3.2.  Orders must be made in writing and submitted to The Supplier may choose at its discretion to accept orders by phone.

3.3.  Where Products are to be used in a clinical trial or other research (‘Study’) which requires an ethics review committee approval before being undertaken, the Order must be accompanied by a copy of:

  1.  the research protocol; and
  2.  the ethics approval issued by the applicable regulatory body,

in respect of the Study.

3.4.  Orders are subject to acceptance by the Supplier provided that, if Atmo does not give notice to the Customer that it rejects an Order within 5 Business Days of the date of receipt of the Order, the Order is deemed to have been accepted.

3.5.  Once an Order has been accepted or deemed to have been accepted, Customer requests for cancellations of or changes to an Order are at the Supplier’s discretion.

3.6.  The Agreement formed on acceptance by the Supplier of an Order comprises:

  1.   the Proposal (if any);
  2.   these General Terms; and
  3.   the Order,

and, to the extent of any inconsistency within the Agreement, the Agreement must be interpreted in accordance with the order of priority set out in paragraphs (a) to (c) above.

3.7.  Any statement in an Order or other document not expressly approved or acknowledged in writing by the Supplier in the Proposal or these General Terms is excluded from the Agreement.

4.  Payment, title and ownership

4.1.  Upon acceptance of an Order, the Supplier will issue an invoice to the Customer in respect of the Products. The invoice must include:

  1.   a unique number identifying the Order;
  2.   the Purchase Price due;
  3.  its nominated bank account details for payment; and
  4.  any other details required by relevant Australian laws.

4.2.  The Customer must pay invoices in full and cleared funds to the bank account nominated by the Supplier within [14] days of the date of the relevant invoice. The Customer acknowledges that Products will not be Delivered unless and until all amounts set out in the relevant invoice have been paid in full in cleared funds, unless otherwise agreed by the Supplier at its absolute discretion.

4.3.  Payment of invoices is not a deemed acceptance of the Products or a waiver of the Customer’s rights under the Agreement.

4.4.  Title to the Products pass to the Customer upon the Supplier receiving payment in full in cleared funds for all amounts set out in the relevant invoice.

5.  Delivery

5.1.  The Customer must arrange collection of each Order:

  1.  from the Delivery Location; and
  2.  between 9.00am and 5.00pm Melbourne time on a Business Day during the Collection Period.

5.2.  The Supplier will use reasonable endeavours to ensure the Collection Period is consistent with any dates requested by the Customer, but takes no responsibility for any inability to accommodate the Customer’s request.

5.3.  Supply of the Products is on an ‘ex-works’ basis. Delivery is completed on the completion of loading or handover of the Products specified in the Order at the Delivery Location to the Customers’ agent or representative, and Customer is responsible for arranging all shipping, freight forwarding, import, export and customs clearance requirements.

5.4.  The Supplier must ensure the Products are properly packed and secured in a manner to enable them to reach their destination in good condition. Packaging materials become the Customer’s property at the same time as the Products.

5.5.  On Delivery, the Supplier must provide a delivery note that shows the relevant:

  1.  Order Number;
  2.  Date of the Order;
  3.  make and model numbers, quantity of Products included in the Order; and
  4.  any special instructions to ensure the safe receipt of the Products at the final destination.

5.6.  The risk of loss of, or damage to, the Products passes to the Customer on Delivery.

6.  Warranty

6.1.  Except as expressly set out in clause 2, the Supplier excludes all express or implied conditions, guarantees, representations or warranties in relation to the Products to the maximum extent permitted by law.

6.2.  The Products supplied to the Customer by the Supplier under this Agreement must:

  1.  conform to the Specifications;
  2.  are of merchantable quality and, subject to clause 15.2, fit for any purpose held out by the Supplier;
  3.  are free from defects in design, material and workmanship and remain so for a period of 12 months from Delivery.

7.  Returns and replacements

7.1.  Subject to clause 4, the Customer:

  1.  may reject the Products if any Product Delivered does not comply with clause 6; and
  2.  must give the Supplier written notice of rejection (including detailed reasons for its rejection):
    • in the case of a defect that is apparent on normal visual inspection, within 2 Business Days of Delivery; or
    • in the case of a latent defect, within a reasonable period of time of the defect having become apparent.

7.2.  If the Customer rejects any Products under clause 1, the Supplier may, at its election and cost:

  1.  replace the rejected Products or supply equivalent goods;
  2.  repair the rejected Products;
  3.  reimburse the Customer for the cost of repairing or replacing the rejected Products or of acquiring equivalent goods;
  4.  subject to the Customer returning the rejected Products to the Supplier, refund to the Customer the Purchase Price for the rejected Products and reasonable associated shipping costs.

7.3. Once the Supplier has complied with clause 2, the Supplier is not liable to the Customer for, and the Customer has no further remedy arising out of or in connection with, the rejected Products’ failure to comply with clause 6.

7.4. The Supplier is not liable for a Product’s failure to comply with clause 6 where:

  1.  the defect arises because the Customer failed to follow the Supplier’s oral or written instructions for the storage, transportation, commissioning, installation, use or maintenance of the Products;
  2.  the Customer alters or repairs those Products without the written consent of the Supplier; or
  3.  the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions.

8.  Limitation of liability

8.1.    To the maximum extent permitted by law but subject to clauses 4 and 8.5, the Supplier’s maximum aggregate liability to the Customer is limited to:

  1.  the remedies in clause 7.2 in respect of defective Products rejected by the Customer; and
  2.  three times the Purchase Price for any other Loss arising out of, or in connection with, this Agreement, including any breach by the Supplier of this Agreement, under any indemnity, in tort (including negligence), under any statute, custom, law or on any other basis.

8.2.  Each party excludes any liability to the other for any Consequential Loss.

8.3.  The Customer will indemnify the Supplier for all liabilities and costs, including legal defence costs, incurred resulting from any use inconsistent with the IFU.

8.4.  Nothing in this Agreement is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of Part 5-4 of the Australian Consumer Law, or the exercise of a right conferred by such a provision, or any liability of the Supplier in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the Australian Consumer Law to a supply of goods or services.

8.5.  Nothing in this Agreement limits or excludes a party’s liability:

  1.  for death or personal injury caused by its negligence or wilful misconduct or that of its employees, as applicable;
  2.  for fraud or fraudulent misrepresentation by it or its employees, as applicable; or
  3.  where liability cannot be limited or excluded by applicable law.

9.  Mandatory notification

9.1.  The Customer must immediately notify the Supplier of any:

  1.  circumstance that may indicate a Product has caused or contributed to a death, injury or adverse patient event, or has malfunctioned in such a way that it is reasonably likely to cause or contribute to a death, injury or adverse patient event;
  2.  complaint of any such matter,  including all available information with respect to the circumstance or complaint, including:
  3.  the nature of the circumstance or complaint;
  4. any written, electronic or oral communications relating to the circumstance or complaint; and
  5.  the name, serial and/or lot number of the Product.

9.2.  If a notification is required to be made under clause 1, the Customer must follow the Supplier’s instructions with respect to any recall or other safety action with respect to the Products.

10.  Intellectual property

10.1.  The Customer acknowledges that all right, title and interest in and to the Intellectual Property Rights in the Software and in the Supplier Background IP belong and will continue to belong to the Supplier, and the Customer will have no rights in or to the Software or the Supplier Background IP other than in accordance with this Agreement.

10.2.  The Supplier grants to the Customer a non-exclusive, non-transferable, irrevocable, royalty-free licence to use the Supplier Background IP only to the extent necessary for the Customer to enjoy the benefit of the Products.

10.3.  The Supplier undertakes at its own expense to defend the Customer or, at its option, settle any IP Claim and will be responsible for any reasonable Losses incurred by or awarded against the Customer as a result of or in connection with any such IP Claim. For the avoidance of doubt, this clause 3 will not apply to the extent the IP Claim is caused or contributed to by the Customer’s possession or use of the Software (or any part thereof) by the Customer other than in accordance with the terms of this Agreement, use of the Software in combination with any hardware not supplied or specified by the Supplier, or use of a non-current release of the Software.

10.4.  The Supplier acknowledges that all right, title and interest in and to the Intellectual Property Rights in the Customer Developed IP belong and will continue to belong to the Customer, and the Supplier will have no rights in or to the Customer Developed IP other than in accordance with this Agreement.

10.5.  The Customer grants to the Supplier a non-exclusive, non-transferable, irrevocable, royalty-free licence to use the Customer Developed IP only to the extent necessary for the Supplier to monitor performance of, and develop improvements to, the Products.

11.  Software licence

11.1.  The Supplier grants a non-exclusive, non-transferable, irrevocable, royalty-free licence to the Customer to use the Software for the full period of the copyright in the Software provided that:

  1.  use of the Software is restricted to processing Customer data for normal business purposes of the Customer; and
  2.  access to the Software is limited to employees and contractors of the Customer.

11.2.  The Customer must not (and will not permit) any third party to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part.

11.3.  The Supplier will provide the Customer with all maintenance releases generally made available to all its customers, and Customer must install all such maintenance releases as soon as reasonably practicable after receipt.

12.  Confidentiality

12.1.  Each party must, except as expressly permitted by this clause 12:

  1.  keep the Confidential Information of a Discloser confidential;
  2.  use its best efforts to prevent any unauthorised access, copying, use or disclosure of such Confidential Information;
  3.  not access, use or reproduce the Confidential Information of a Discloser for any purpose other than the Permitted Purpose, nor assist or permit any other person to do so;
  4.  immediately notify the Discloser if it suspects or becomes aware of any unauthorised access, copying, use or disclosure of the Confidential Information.

12.2.  A party may disclose the Discloser’s Confidential Information:

  1.  to its related bodies corporate and its and their directors, officers, employees, professional advisors and potential financiers or acquirors who have a need to know the information and owe obligations of confidentiality equivalent to this clause 12;
  2.  if disclosure is required by law, legally binding order of any court or government or governmental, administrative, monetary, fiscal or judicial body, department, commission, authority, tribunal, agency or entity in any part of the world, or the rules of any stock exchange or regulator, provided that it first notifies the other Party of the required disclosure (where practicable); or
  3.  with the prior written consent of the other Party.

12.3.  Each Party acknowledges that monetary compensation may not be a sufficient remedy for any breach of the Project Agreement and that the other Party may seek and obtain specific performance or injunctive relief as a remedy for any breach or threatened breach of the Agreement, in addition to any other remedies available at law.

12.4.  The obligations of confidentiality imposed by these General Terms continue in force:

  1.  where the Confidential Information is not a trade secret, until the third anniversary of the date of the Order; or
  2.  where the Confidential Information is a trade secret, in perpetuity.

12.5.  On receipt of written notice from the Discloser, the Recipient must return or destroy all copies of Confidential Information in Recipient’s control. This obligation does not apply to:

  1.  documents required to be retained due to a legal or professional conduct obligation of Recipient; or
  2.  backups or archive copies arising from ordinary course operations.

12.6.  No Party represents or warrants that its Confidential Information is accurate, complete, up to date or fit for any particular purpose.

13.  Privacy

13.1.  The Customer and Supplier acknowledge that Personal Information, including health care professional data and patient data, may be collected, transmitted, stored, used and otherwise processed on the Software.

13.2.  The Customer warrants that it complies with and will continue to comply with the Privacy Regulations, and any directions given by the Supplier in respect of access to, use and management of Personal Information, whether in the Instructions for Use provided with the Products or otherwise.

13.3.  The Supplier warrants that it complies with and will continue to comply with the Privacy Regulations in respect of information provided to it under this Agreement.

13.4.  If the Supplier collects, holds, uses or discloses Personal Information in the course of or relating to this agreement, the Supplier must:

  1.  handle all Personal Information in accordance with the Supplier’s privacy policy to the extent that policy is not inconsistent with the requirements of this clause 13 or this Agreement;
  2.  only use Personal Information for the purposes set out in its privacy policy;
  3.  not engage in any act or practice that would cause the Customer to be in breach of the Privacy Act;
  4.  comply with any directions given by the Customer relating to:
    • Personal Information to the extent that they are not inconsistent with the requirements of this clause 13; and
    • the handling and response to any of the events in clauses 13.4(g);
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  5. not disclose Personal Information to any third party (including any subcontractor) without the Customer’s prior written consent or as required under this clause 13;
  6. take reasonable precautions to protect Personal Information from:
    • misuse, interference and loss; and
    • unauthorised access, modification or disclosure; and

  7.  immediately notify the Customer in writing if it becomes aware of the Supplier’s or any third party’s actual or possible:
    • breach of any of the obligations in this clause 13; or
    • misuse or loss of Personal Information,

    whether by the Supplier or any third party.

14. Use of Products for research purposes

14.1.  Save as set out in this clause 14, where Products are to be used in a Study, neither the Supplier nor the Customer (nor any of its officers, employees, contractors, agents, representatives or students) may make any public announcement or press release in relation to the Study without the prior written consent of the other party, such consent not to be unreasonably withheld.

14.2.  No less than 30 Business Days prior to publication of any information relating to the Study by the Customer (or any of its officers, employees, contractors, agents, representatives or students) (‘Proposed Publication’), the Customer must provide a copy of the Proposed Publication to the Supplier for review.

14.3.  Within 20 Business Days of receipt of a Proposed Publication, the Supplier may by written notice to the Customer require:

  1.  reasonable alterations to be made to the Proposed Publication; and/or
  2.  a delay to publication (in whole or in part) of the Proposed Publication of no more than three (3) months, where the Supplier determines, in its commercial discretion but acting reasonably, that the Proposed Publication (or part thereof):
  3.  may expose Supplier Background IP in respect of which it may file for registration; or
  4.  may be detrimental to the commercial prospects (including enforceability) of the Supplier Background IP.

14.4.  If the Supplier does not provide written notice under clause 3 within 20 Business Days of receipt of the Proposed Publication, it will be deemed to have given consent for publication of the Proposed Publication.

14.5.  The Study, and each party’s role in it, may be referred to by:

  1.  either party, to the extent necessary for the purposes of the Study; and
  2.  the Supplier in promotional material.

15.  Regulatory compliance

15.1.  In performing its obligations under this Agreement, importing any Products into any country in which they operate, and using the Products, the Customer must comply with all applicable laws, statutes, regulations, regulatory policies, guidelines or industry codes from time to time in force.

15.2.  The Customer acknowledges that the Products may not yet be approved for use in the jurisdiction in which it operates, and that sole responsibility for ensuring all approvals, licences and other regulatory consents are satisfied before using the Products.

15.3.  For purposes of patient safety and efficacy, and in compliance with market authorisation, it is important that all Products sold by the Supplier must be used as intended and in a manner consistent with its related IFU.

16.  GST

16.1.  Unless expressly stated otherwise, the consideration for any supply under or in connection with this Agreement is exclusive of GST.

16.2.  To the extent any supply made under or in connection with this Agreement is a taxable supply, the amount payable by the recipient is the consideration provided under this Agreement for that supply (unless it expressly includes GST) plus an amount (‘Additional Amount’) equal to the amount of that consideration (or its GST exclusive market value) multiplied by the rate at which GST is imposed in respect of the supply.

16.3.  The recipient must pay the Additional Amount at the same time as the consideration to which it is referable, and on the issue of an invoice relating to the supply.

16.4.  Whenever an adjustment event occurs in relation to any taxable supply to which clause 3 applies:

  1.  the Supplier must determine the amount of the GST component of the consideration payable; and
  2.  if the GST component of that consideration differs from the amount previously paid, the amount of the difference must be paid by, refunded to or credited to the recipient, as applicable.

16.5.  If either party is entitled under this Agreement to be reimbursed or indemnified by the other party for a cost or expense incurred in connection with this Agreement, the reimbursement or indemnity payment must not include any GST component of the cost or expense to the extent that the cost or expense is the consideration for a creditable acquisition made by the party being reimbursed or indemnified, or by its representative.

17.  Taxes and Duties

17.1.  The Customer is responsible for paying any customs duties or tariffs, sales taxes or any other costs, taxes, tariffs or duties in respect of the Products arising in their jurisdiction of residency.

18.  Dispute resolution

18.1.  If a dispute, controversy or claim arises out of or in connection with this Agreement or the performance, validity or enforceability of this Agreement (‘Dispute’), the parties must comply with the procedure set out in this clause 18.

18.2.  Either party may give to the other part written notice of a Dispute setting out its nature and full particulars (‘Dispute Notice’).

18.3.  Within 10 Business Days of receipt of a Dispute Notice, representatives of each party must meet and seek to resolve the Dispute.

18.4.  If the Dispute is not resolved within 10 Business Days of receipt of a Dispute Notice pursuant to clause 3, the Dispute must be referred to the chief executive officers of the parties who must meet and seek to resolve the Dispute within 20 Business Days of it being referred to them.

18.5.  If the Dispute is not resolved within 20 Business Days of it being referred to the chief executive officers of the parties pursuant to clause 4, the Dispute must be referred to and finally resolved by arbitration in accordance with the ACICA Arbitration Rules. The seat of the arbitration shall be Melbourne, Australia and the language used shall be English. The number of arbitrators shall be one.

18.6.  Nothing in this clause 18 is intended to prevent a party from seeking urgent injunctive or similar relief.

19.  Miscellaneous

19.1.  The Agreement records the entire contract between the parties as to its subject matter and states all the terms agreed by the parties about its subject matter. It supersedes all prior agreements, understandings, negotiations and discussions in respect of its subject matter.

19.2.  No party has relied on any statement, representation, assurance or warranty made or given by any other party, except as expressly set out in the Agreement.

19.3.  Nothing in the Agreement:

  1.  gives a party authority to bind any other party in any way; or
  2.  imposes any fiduciary duties on a party in relation to any other party.

19.4.  No party may assign, novate, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Agreement without the prior written consent of the other party.

19.5.  The laws in Victoria, Australia govern the Agreement. The parties submit to the non-exclusive jurisdiction of the Courts of Victoria and the Federal Court of Australia (Melbourne registry).