Valocity Licence Terms

IT IS AGREED:

1. ABOUT THIS AGREEMENT

1.1 These Valocity Licence Terms, the Service Order signed by the Client including the Agreement Particulars, the Valuation Specific Terms and the Valocity Service Level Terms form the Agreement.

1.2 The Client accepts the Agreement, including these Valocity Licence Terms, by signing the Service Order, through its use of the Valocity System or by continuing to use the Valocity System after being notified of a change of these Valocity Licence Terms, the Valuation Specific Terms, or the Valocity Service Level Terms in accordance with clause 21.

2. DEFINITIONS

2.1 In the Agreement the following words shall have the corresponding meaning:

(a) Address For Service means the Party’s respective contact details specified in the Service Order, or as modified from time to time in accordance with clause 39.4;

(b) Administrators means an employee of the Client with an enhanced level of access to the Valocity System;

(c) Agreement means the agreement between Valocity and the Client for the provision of the Valocity System incorporating these Valocity Licence Terms, the Valuation Specific Terms and the Valocity Service Level Terms, including as varied from time to time in accordance with clause 21, and incorporating the Service Order signed by the Client including the Agreement Particulars;

(d) Agreement Particulars means the agreement particulars specified in the Services Order;

(e) API means the Australian Property Institute Limited ACN 608 309 128.

(f) Applicable Laws means all laws and regulations applicable to the supply of the Products and/or Services by Valocity under to this Agreement;

(g) Authorised Users means an employee of the Client, or a Broker, nominated by the Client to be provided access to the Valocity System to order Requests;

(h) AVM Report means a report generated by use of an automated valuation model as described in the Valuation Specific Terms.

(i) Broker means a broker who has the authority of the Client to use the Valocity System on the Client’s behalf.

(j) Business Day means a day on which banks are open for business in the State of New South Wales;

(k) Business Hours means the hours from 8:30am to 6pm on any Business Day (Australian Eastern Standard Time).

(l) Claim against any person means any claim, action, proceeding, demand, prosecution, judgment, damage, loss, cost, expense, fine, penalty or liability whatever incurred or suffered by or brought or made or recovered against a person and however arising (whether presently ascertained future or contingent);

(m) Client means the client set out in the Service Order;

(n) Commencement Date means the date set out in the Service Order;

(o) Confidential Information means all information or data given by or acquired from the Party disclosing information (Discloser) by the party receiving information (Recipient), directly or indirectly, whether before, on, or after the date of this Agreement, relating to:

(i) the Discloser’s past, present or future structure, business activities, strategies, plans, assets (including Intellectual Property Rights), products, services, financial affairs, trade secrets, ideas, concepts, techniques know-how and processes, suppliers, business partners, customers and contractual arrangements with suppliers, business partners and customers;

(ii) any other information that is by its nature confidential, is marked or designated or confirmed by the Discloser as confidential or proprietary at the time of its disclosure or which the Recipient knows or ought to know is confidential or which is not generally known outside the Discloser;

(iii) Personal Information disclosed by Discloser to Recipient; and

(iv) the terms of this Agreement,

but excludes information which:

(v) is in or becomes part of the public domain otherwise than through breach of this Agreement by the Recipient or another obligation of confidence owed to the Discloser by the Recipient or any of the Recipient’s personnel;

(vi) the Recipient can prove, by contemporaneous written documentation, was already known to the Recipient at the time of disclosure by the Discloser or any of the Discloser’s personnel (unless such knowledge arose from disclosure of Confidential Information in breach of an obligation of confidentiality); or

(vii) the Recipient acquired from a person who is not under any obligation of confidence to the Discloser;

(p) Desktop Valuation has the meaning as set out in the Valuation Specific Terms;

(q) End Customer means a customer of the Client;

(r) Force Majeure Event means an occurrence or omission as a result of which the party relying on it is prevented or delayed in performing any of its obligations under this agreement and that is outside the reasonable control of a party, including acts of God, strikes, acts or omissions (including laws, regulations, disapprovals or failures to approve) of any governmental agency and includes:

(i) an unavoidable accident, explosion or public mains electrical supply failure;

(ii) sabotage, riot, civil disturbance, insurrection, epidemic, national emergency (whether in fact or law) or act of war (whether declared or not);

(iii) any requirement or restriction of, or failure to act by, any governmental agency; or

(iv) any other similar cause beyond the reasonable control of the party concerned,

(v) but does not include:

(vi) any event which the affected party could have avoided or overcome by exercising a reasonable standard of care at a reasonable cost;

(vii) a lack of funds for any reason or any other inability to pay; or

(viii) any failure to perform by an agent or a sub-contractor employed by a party unless the agent or sub-contractor is itself subject to a Force Majeure Event;

(s) GST means a tax imposed by or under the GST Law;

(t) GST Law has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1998 (Cth);

(u) Incident has the meaning given in the System Service Levels that form part of the Agreement;

(v) Intellectual Property Rights includes all present and future registered and unregistered rights conferred by statute, common law, equity or any corresponding law in or in relation to copyright, trademarks, designs, patents, source code, trade secrets, semiconductor, know-how, Confidential Information, Moral Rights or circuit layout rights in the Licensed Software and any other intellectual property rights as defined by Article 2 of the Convention Establishing the World Intellectual Property Organisation 1967;

(w) Loss means liabilities, expenses, losses, damages and costs (including legal costs on a full indemnity basis) whether incurred by or awarded against a party;

(x) Initial Term means the period starting from the commencement date, running for the duration, or until the date, specified in the Initial Term in the Service Order;

(y) Moral Rights means rights of integrity or authorship and performance, rights of attribution of authorship and performership, rights not to have authorship or performership falsely attributed, and rights of a similar nature conferred by statute, that exist, or that may come to exist, anywhere in the world in relation to the Intellectual Property Rights;

(z) Ongoing Valocity Support, Maintenance and Hosting Fees means the fees payable by the Client to Valocity for support maintenance and hosting as set out in the Service Order;

(aa) Other Services means other services which may be available for order via the Valocity System, in addition to the Services, from time to time by Valocity giving notice in writing to the Client, or additional functionality provided by Valocity.

(bb) Party and Parties means a party or parties to the Agreement, being Valocity and the Client;

(cc) Personal Information has the same meaning as that expression is defined in the Privacy Act;

(dd) Privacy Act means the Privacy Act 1988 (Cth);
(ee) Property means the properties which are the subject of the Valuation Services;
(ff) Purpose means in respect of:

(i) the Valuation Report – only for any business purpose related to the transaction the Valuation Report was commissioned for including disclosure to third parties such as financiers and rating agencies as required and internal personal or business use of the recipient of the Valuation Report, which includes reliance on the Valuation Report by the recipient for the business purpose of providing loans secured by way of mortgages over real property;

(ii) the document or report resulting from an Other Service – the purpose specified by Valocity when notifying the Client of such Other Service in accordance with clause 18; or

(iii) as otherwise stated in a Request or agreed by the Parties in writing;

(gg) Renewal Term means the renewal terms specified in the Service Order which the Agreement may be renewed for;

(hh) Report means the report detailing the outcome of the applicable Valuation Service;

(ii) Request means a request made by the Client (through its Authorised Users, but excluding Brokers) through the Valocity System (or otherwise as agreed in writing) for either a Valuation Request or Other Services in accordance with the Agreement;

(jj) Products means the goods, including Software or hardware (if any), to be provided by Valocity under this Agreement, as specified in a Work Order, a Scoping Document, or Request;

(kk) Scoping Document means the document of the same name attached to the Service Order, or a Work Order as applicable;

(ll) Selected Service Provider means the Valuer selected by the Client to undertake the Valuation Services;

(mm) Service Levels means, in respect of:

(i) the Valuation Services, means any minimum levels of performance of quality specified in the Valuation Specific Terms;

(ii) the Valocity System, means any minimum levels of performance of the Valocity System specified in the System Service Levels; or

(iii) any Other Service, means any minimum levels of performance which Valocity notifies the Client will apply to that Other Service.

(nn) Services means the services to be provided by Valocity under the Agreement, as specified in the Valuation Specific Terms or a Request.

(oo) Services Order means the order for services signed by the Client and Valocity that forms a part of the Agreement, and unless the context requires otherwise includes the Agreement Particulars;

(pp) Software means computer software or firmware provided under this Agreement;

(qq) Standard Commercial Property means a commercial property valuation, is a type of property which is used for a commercial purpose such as office accommodation, retail, industrial or other non-specialised purpose;

(rr) Standard Residential Property means a residential property which:

(i) is a type of property which falls in scope of the latest Australian Banking & Finance Industry Residential Valuation Standing Instructions published by the Australian Property Institute from time to time (API Standing Instructions), in accordance with clause 2.3 of the API Standing Instructions, or such equivalent clause as may be applicable from time to time; and

(ii) is not a type of property which falls out of the scope of the API Standing Instructions, in accordance with clause 2.4 of the API Standing Instructions, or such equivalent clause as may be applicable from time to time;

(ss) Subcontractor means a contractor, subcontractor, or agent, of a Party;

(tt) System Service Levels means the terms detailing the minimum levels of performance of the Valocity System;

(uu) Tax Invoice has the meaning attributed to the term in the GST Law as amended from time to time; and

(vv) Term means the term of the Agreement commencing on the Commencement Date and ending on the date the Agreement is validly terminated in accordance with its terms;

(ww) Upfront Valocity Integration Fees means the fees payable by the Client to Valocity for integration and other services as set out in the Service Order;

(xx) Valocity means Valocity Pty Ltd (ACN 613 496 790);

(yy) Valocity Data means all data provided by Valocity which may extend to but not be limited to official sales, recent sales, titles, geospatial imagery, addresses, property attributes (including area and number of bedrooms and bathrooms), listings and other documents and information.

(zz) Valocity Licence Fee means the fees payable by the Client to Valocity as set out in the Services Order, for the corresponding Valuation Services, and paid in accordance with clause 6;

(aaa) Valocity Service Level Terms means the terms available at https://valocitytest.wpengine.com/en/valocity-service-level-terms/ including as varied from time to time in accordance with clause 21;

(bbb) Valocity System means the valuation ordering system known as Valocity;

(ccc) Valuation or Valuation Services means the services listed in the Valuation Specific Terms, under the section “Valuation Report and Services” to be performed by the Valuation Firm pursuant to a Valuation Request.

(ddd) Valuation Fees means the fees payable by the Client to a Selected Service Provider in respect of Valuation Services provided by that Selected Service Provider in accordance with clause [INSERT];

(eee) Valuation Firm means a valuation firm appointed to the Valuation Panel in accordance with clause 14 to undertake the Valuation or Valuation Services;

(fff) Valuation Panel means the panel, managed by the Client, of Australian Valuers and Valuation Firms that are eligible to be Selected Service Providers;

(ggg) Valuation Report means A written report for a Valuation Service that contains:

(i) the Selected Service Provider’s branding and valuation terms; and
(ii) the key data variables requested as a summary in the manner specified by Valocity from time to time;

(hhh) Valuation Request means a request for valuation services;

(iii) Valuation Specific Terms means the terms available at https://valocitytest.wpengine.com/en/valuation-specific-terms/ including as varied from time to time in accordance with clause 21;

(jjj) Valuation Timelines means the timelines specified by the Selected Service Provider at the time the Valuation Request is made, subject to the Valuation Specific Terms;

(kkk) Valuer means any registered valuer appointed to the Valuation Panel by the Client to undertake the Valuation or Valuation Services; and

(lll) Work Order means a work order signed by the parties in substantially the form set out the Schedule.

3. INTERPRETATION
3.1 In the Agreement unless the context requires otherwise:

(a) headings in the Agreement are reference only and do not form part of the Agreement;

(b) a reference to any party to the Agreement, or any other document or arrangement, includes that party’s executors, administrators, substitutes, successors and permitted assigns;

(c) a reference to any legislation or legislative provision includes any statutory modification or re-enactment of, or legislative provision substituted for, and any subordinate legislation issued under, that legislation or legislative provision;

(d) a reference to a time and date in connection with the performance of an obligation is a reference to the time and date in the State of New South Wales, even if the obligation is to be performed elsewhere;

(e) a reference to the rights, duties, obligations and liabilities of more than one party will in every case be a reference to rights, duties, obligations and liabilities that are several and not joint or joint and several;

(f) the singular includes the plural and vice versa;

(g) a reference to an individual or person includes a corporation, partnership, joint venture, association, authority, trust, state or government and vice versa;

(h) a reference to any gender includes all genders;

(i) mentioning anything after include, includes or including does not limited what else might be included;

(j) a reference to a schedule, recital, clause, annexure or exhibit is to a schedule, recital, clause, annexure, or exhibit of or to the Agreement;

(k) a schedule, annexure or a description of the parties forms part of the Agreement;

(l) a reference to any agreement, deed or document is to that agreement, deed or document (and, where applicable, any of its provisions) as amended, novated, supplemented or replaced from time to time;

(m) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;

(n) a reference to a bankruptcy or winding up includes bankruptcy, winding up, liquidation, dissolution, becoming an insolvent under administration (as defined in the Corporations Act 2001 (Cth)), being subject to administration and the occurrence of anything analogous or having a substantially similar effect to any of those conditions or matters under the law of any applicable jurisdiction, and to the procedures, circumstances and events which constitute any of those conditions or matters;

(o) where an expression is defined anywhere in the Agreement, it has the same meaning throughout the Agreement;

(p) where an expression is set out in the first column of the Agreement Particulars, it has the corresponding meaning in the second column;

(q) the rule of contra proferentem does not apply to the Agreement; and

(r) a reference to “dollars” or “$” is to an amount in Australian currency.

3.2 In the event of any inconsistency between these Valocity Licence Terms, the Service Order, the Agreement Particulars, the Valocity Service Level Terms and the Valuation Specific Terms, the following order of precedence will apply to the extent of the inconsistency:

(a) the Agreement Particulars; then

(b) the Service Order; then

(d) the Valuation Specific Terms; then

(e) these Valocity Licence Terms.

4. TERM AND EXCLUSIVITY
4.1 This Agreement commences on the Commencement Date and continues for the Initial Term and any Renewal Term, unless terminated earlier in accordance with its terms.

4.2 The Parties may renew the Agreement for the Renewal Term and any additional Renewal Term, by written agreement no later than 30 days before the expiry of the then Initial Term.

4.3 The Client acknowledges and agrees that Valocity’s consent to any such renewal in accordance with clause 4.2 may be subject to a review of the Valocity Licence Fees. If Valocity increases the Valocity Licence Fees in accordance with this clause 4.3, the Client may withdraw its renewal request without penalty within 30 days of being notified of the increase.

4.4 Nothing in this clause prevents the Parties from agreeing (by notice in writing, signed by both Parties) to renew the Agreement at any time less than 30 days before the expiry of the then current Term, or renew the Agreement more than the Number of Renewal Terms.

4.5 The Client acknowledges and agrees for the Term it must exclusively use the Valocity System for residential property valuations and must not use any other system providing the same, or functionally equivalent services for residential property valuations.

4.6 Clause 4.5 is an essential term of the Agreement.

4.7 For the avoidance of doubt, nothing in the Agreement binds Valocity to any obligation of exclusivity.

5. SUPERSESSION

5.1 The Parties acknowledge and agree that by entering into the Agreement, any previous agreements between the Parties in relation to the Valocity System are superseded by the operation of the Agreement.

6. FEES

6.1 Subject to Valocity providing the Client a valid Tax Invoice, the Client must pay Valocity, by the method directed by Valocity from time to time, the:

(a) Upfront Valocity Integration Fees in accordance with the Service Order, or if the timing of such payments is not provided in the Service Order, on or before the Commencement Date; and

(b) Ongoing Valocity Support, Maintenance and Hosting Fees in accordance with the Service Order, or if the timing of such payments if not provided in the Service Order, on a monthly basis in advance.

6.2 In consideration for the use of the Valocity System, Valocity will be entitled to collect the Valocity Licence Fee, subject to increase annually in accordance with clause 7, set out in the Service Order.

6.3 If the transactional fees set out in the Service Order apply at any time, the Valuation Request must be paid upfront via the Valocity System, and Valocity will:

(a) deduct the Valocity Licence Fee from such payment (if applicable), and then, excluding for Desktop Valuations and AVM Reports, pay the Selected Service Provider the balance; and

(b) provide an invoice to the Client.

6.4 The fees for each Valuation Service, if not set out in the Service Order, will be agreed between the Client, or the Broker as applicable, and the Selected Service Provider, with the Valocity Licence Fee to be applied in addition.

6.5 In the event that a Valuation Request is cancelled after the Selected Service Provider has completed a physical inspection of the Property, the full applicable Valuation Fees and Valocity Licence Fees are payable, regardless of whether the Valuation Services have been completed.

6.6 For the avoidance of doubt, if the Valuation Request is cancelled:

(a) before the Selected Service Provider has completed the physical inspection of the Property; or

(b) if no physical inspection of the property is required, substantial work on the Valuation Request has been completed,

6.7 If the Client disputes any of Valocity’s claims for payment it may withhold the disputed amount until the dispute is resolved but must pay Valocity any undisputed amount.

6.8 Valocity will send to the Client an itemised report monthly in respect of all Valuation Fees by Selected Service Providers in respect of Valuation Requests made by the Client.

6.9 Fees for categories of Valuations which are not addressed in the Service Order are to be prior agreed in writing by the Parties from time to time.

6.10 Notwithstanding the Service Order, standard servicing of the Valocity System and related modifications will be charged on a time and materials basis.

6.11 Notwithstanding the Service Order, where a Work Order involves a modification of the Valocity System the fees payable by the Client will be on a time and materials basis, or as agreed in the Work Order.

7. FEE INCREASES

7.1 The Client acknowledges and agrees that the Ongoing Valocity Support, Maintenance and Hosting Fees and Valocity Licence Fees (including transactional fees) may increase annually on or around 30 June of each year, at Valocity’s sole discretion. The increase will notionally be based on Valocity’s reasonable assessment of the Client’s screen activity and data usage but may include other factors such as Valocity’s general increased costs.

7.2 Valocity will provide the Client with 30 days prior written notice of an increase under clause 7.1.

7.3 On receipt of a notice of increase of the Valocity Licence Fee under this clause 7 the Client may terminate the Agreement by providing Valocity 30 days written notice.

8. ACCESS TO THE VALOCITY SYSTEM

8.1 During the Term the Client will nominate in writing to Valocity the people who are to be the Client’s Authorised Users and Administrators. Authorised Users and Administrators may be amended from time to time by written notice from the client to Valocity. Authorised Users, who are Brokers, must be separately nominated in writing by the Client.

8.2 Subject to clause 8.1, Authorised Users and Administrators of the Client may access to the Valocity System for:

(a) the purpose of the Client ordering and viewing a completed Valuation Report;

(b) any other purpose approved by Valocity in writing; and

(i) requesting the addition or removal of people as Authorised Users;

(ii) updating the contact details and other information recorded on the Valocity System with respect to the Client, Authorised Users and Administrators;

(iii) undertaking any other functions and performing such other tasks as may be required of Administrators;

(iv) selecting the Client’s preferred Valuers and Valuation Firm; and

(v) reviewing Valuation Reports received.

8.3 Valocity grants to the Client and each of its Authorised Users a non-exclusive, non-transferable licence to use the Valocity System during the Term solely for the purposes set out in clause 8.2.

8.4 Brokers who are Authorised Users may only access the Valocity System for the purposes set out in clause 8.2 above, unless otherwise agreed by the Parties in writing.

9. VALOCITY SYSTEM CONTENT

9.1 No information accessed through or received from the Valocity System or Other Services may be used, reproduced, distributed, transmitted, published, copied, transferred or commercially exploited by the Client or any Authorised User or Administrator in any way that would constitute an infringement of any copyright, patent, trade mark, design or other Intellectual Property Right.

9.2 The information or details of the Valuation Reports, access, outputs or pricing must not be shared with any competitor of Valocity.

9.3 The Client expressly acknowledges that Valocity does not control the content posted by users of the Valocity System. The Client agrees Valocity may:

(a) reject any communication from the Client or information posted on the Valocity System or Other Services by it or any of its Authorised Users;

(b) require the Client to remove any information posted on the Valocity System or Other Services by the Client or any of its Authorised Users; and

10. RESTRICTIONS TO USE OF VALOCITY SYSTEM

10.1 The Client must (and must ensure that its Authorised Users):

(a) access and use the Valocity System and Other Services only in accordance with the terms of the Agreement, and such other reasonable directions given to the Client by Valocity from time to time;

(b) not purport to grant any form of licence (without the prior written consent of Valocity which it may in its absolute discretion withhold) or purport to sell, rent, lease or otherwise transfer any rights in the Valocity System or Other Services for any purpose;

(d) use its best endeavours to procure that no Authorised User or any other person under the Client’s control takes any action likely to adversely affect the operation of the Valocity System or Other Services;

(e) take reasonable care in selecting each Authorised User (taking into the account the relevant individual’s level of access);

(f) not directly or indirectly, cause or allow a third party to, copy, reproduce, modify, distribute, revise, vary, translate, reverse-engineer, use, alter or disassemble the Valocity System or Other Services;

(g) not amend, or attempt to amend, any software, information or settings on the Valocity System or Other Services; and

(h) promptly notify Valocity once becoming aware of any event that may constitute a breach of the Agreement.

11. VALOCITY SERVICE LEVELS AND SUPPORT

11.1 Valocity must use its best endeavours to ensure the Valocity System meets the Service Levels.

11.2 Valocity must compile and provide to the Client at least annually, or such other interval as mutually agreed in writing by the Parties, a report detailing its performance against the Service Levels.

11.3 Valocity must:

(a) provide Authorised Users with reasonable assistance in accessing the Valocity System;

(b) upon request, provide Authorised Users with telephone technical support during Business Hours regarding use of the Valocity System, but is otherwise under no other obligation to provide any ongoing on-site technical support;

(c) supply at its own cost a user manual and a reasonable number of scheduled telephone group training workshops (if requested by the Client) to train Authorised Users to a reasonable level of competency to allow efficient use of the Valocity System; and

(d) ensure that each Broker is sent an onboarding email which includes a link to the terms and conditions which must be accepted by the Broker before it is provided access to the Valocity System.

12. VALOCITY SYSTEM USER ACCESS

12.1 Valocity will:

(a) provide all Authorised Users with user accounts (including a password and login ID) which will be linked to the Client, and all activities undertaken by each Authorised User (or undertaken using an Authorised User’s login ID, password or other access codes) in connection with the Valocity System will be deemed to have been undertaken by, and authorised and approved by, the Client; and

(b) disable an Authorised User’s access within two Business Days of receiving a request in writing from the Client to do so.

12.2 the Client must (and must ensure that its Authorised Users who are employees):

(a) keep all user accounts, user login IDs and passwords secure at all times;

(b) not disclose user account, user login ID or password information relating to the Valocity System to any other person (except with Valocity’s prior written approval);

(c) immediately notify Valocity in writing upon becoming aware of any actual or suspected unauthorised access or use of a user account;

(d) immediately notify Valocity in writing if it becomes aware of any breach of the access and security protocols contained in the Agreement;

(e) immediately notify Valocity in writing if an Authorised User that is an employee leaves the employ of the Client so that Valocity can disable the relevant Authorised User account, and the Client will be solely liable for any damages caused by access or use by a former employee or contractor where it failed to notify Valocity of the departure;

(f) for security purposes change (and ensure that its Authorised Users change) the Valocity System and Other Services access codes and passwords as directed by Valocity from time to time.

12.3 The Client must immediately notify Valocity in writing if an Authorised User that is a Broker is no longer authorised by the Client to access the Valocity System so that Valocity can disable the relevant Authorised User account, and the Client will be solely liable for any damages caused by access or use by a former Broker where it failed to notify Valocity of the loss of authorisation.

12.4 The Client agrees and acknowledges that:

(a) it will remain fully responsible for any unauthorised use of any Valocity System or Other Services identification numbers, login ID, access codes or passwords issued to it or its Authorised Users who are employees if the unauthorised use is attributed to the Client or its Authorised Users who are employees; and

(b) Valocity will rely on the instructions it receives from Authorised Users from employees in ordering Valuation Reports and agrees that the Client will remain fully liable for those instructions.

12.5 Clause 12.4 will survive termination of the Agreement for any reason.

13. VALOCITY SYSTEM ACKNOWLEDGEMENTS

13.1 The Client expressly acknowledges and agrees that:

(a) while the Valocity System and Other Services are provided on an ‘as-is’ basis and, without limitation, and Valocity makes no representations about the compatibility of the Valocity System and Other Services with the Client’s software, procedures or practices, and takes no responsibility for the same, Valocity will use reasonable endeavours to ensure the Valocity System and other Services interoperates with the Client’s software, procedures, and practices for the Term of the Agreement;

(b) it is responsible for providing internet connectivity necessary to access the Valocity System and Other Services, and Valocity is not responsible for providing hardware necessary to access the Valocity System and Other Services, or send or receive communications to or from the Valocity System and Other Services;

(c) while Valocity cannot and does not guarantee that access to the Valocity System and Other Services will be uninterrupted or that it will operate error-free or be malware-free or that it will meet the requirements of the Client, Valocity will use reasonable endeavours to ensure the Valocity System and Other Services is uninterrupted, error free and malware free and will use reasonable endeavours to resolve all such issues as soon as reasonably practicable;

(d) it must (and must ensure that its Authorised Users) follow all reasonable instructions Valocity gives from time to time with regard to the use of the Valocity System and Other Services;

(e) Valocity gives no warranty with respect to:

(i) the performance of the Valocity System and Other Services;

(ii) the fitness for any purpose of the Valocity System and Other Services, or

(iii) with respect to the accuracy or completeness of any information provided on the Valocity System and Other Services or the security of transmission of such information via the Valocity System; and

(f) Valocity will implement reasonable security measures (including industry-standard security systems).

13.2 The acknowledgements and agreements provided for in clause 13.1 do not apply where Valocity has contributed to any breach by reason of its negligence, omission or fraud.

14. VALUER ADMINISTRATION

14.1 The Client will select suitable Australian property valuers and valuation firms to be appointed to the Valuation Panel.

14.2 The Client will manage and administer the Valuation Panel, including the following:

(a) appointment or removal of Valuers or Valuation Firms from the Valuation Panel from time to time and will provide Valocity written notice of such; and

(b) issuing of agreements between members of the Valuation Panel and the Client.

14.3 Valocity will assist the Client in the administration of the Valuation Panel by:

(a) requesting members of the Valuation Panel provide proof of insurance and required registrations as reasonably directed by the Client; and

(b) facilitating members of the Valuation Panel to enter the panel agreement with Valocity enabling access to the Valocity System.

14.4 For the avoidance of doubt, the Client will also maintain separate agreements with each of the members of the Valuation Panel.

15. ORDERING VALUATION SERVICES

15.1 Valuation Services may be ordered at the initiation of the Client (through its Authorised Users which are employees of the Client) and according to the following process:

(a) the Client may at any time request Valuation Services by completing a Valuation Request via the Valocity System;

(b) the Selected Service Provider will carry out the Valuation Services and supply the relevant Valuation Report in accordance with the Valuation Request and the Agreement; and then

(c) upon completion of each Valuation Report, the Selected Service Provider or Valocity (as the case may be) will upload the Valuation Report in PDF format on the Valocity System and inform the Client of such via the Valocity System.

15.2 The Client must ensure that Valuation Requests made through its Authorised Users contain the following:

(a) whether the End Customer intends to pay for the Valuation Request upfront, or in accordance with invoices from Valocity;

(b) whether the Valuation Request is urgent or whether there is a specific timeframe for completion; and

15.3 The Client expressly acknowledges and agrees:

(a) that the Valuation Reports are prepared on the basis of the assumptions set out in Schedule 2 or as amended by Valocity and notified to the Client in writing from time to time; and

(b) in relation to the provision of Valuation Services to the Client, for the avoidance of any doubt, Valocity’s role is limited to facilitating the delivery of such Valuation Services via the Valocity System by the relevant Selected Service Provider. Valocity shall not otherwise be considered to be making, providing or delivering the Valuation Services.

15.4 Valocity will use its reasonable endeavours to ensure that the Selected Service Provider:

(a) ensures each Valuation Report is signed off by the specific Valuer to whom the Valuation Report was made via the Valocity System;

(b) ensures each Valuation Report is addressed to the Client and references the Client(s);

(d) complies with the instructions contained in the Valuation Request; and

(e) acknowledges and agrees that each Valuation Report may be used for the Purpose.

16. BROKER VALUATION SERVICES

16.1 Where a Valuation is ordered by a Broker:

(a) the Client will receive notification that the Report is available to be downloaded from Valocity;

(b) the Client or the Broker (if any), will be able to download a PDF version of the report;

(c) the Broker ordering the Report through the Valocity System is unable to allocate the order to an individual firm or valuer thereby avoiding any collusion;

(d) Valocity will charge the End Customer upfront for the Valuation Request and issue a Tax Invoice to the End Customer.

16.2 Where a Valuation from a Valuer or Valuation Firm is obtained externally to the Valocity System, and uploaded to the Valocity System by the Client, the End Customer, or the Broker, the Valocity Licence Fee be paid by the Client on receipt of an invoice from Valocity, or the terms of that invoice.

17. VALUER SELECTION

17.1 If the Valuation Request is for an AVM Report, the Valocity System will attend to the Valuation Request, otherwise the Valocity System will:

(a) randomly select and notify a maximum of Valuers or Valuation Firms to provide a quotation appropriate for the Service requested, provide such Valuers or Valuation Firms an opportunity to provide a quotation to complete the Valuation Request; and

(b) facilitate the return of such quotation to the Client or the Broker as applicable, at which point the preferred Valuer or Valuation Firm will be selected.

17.2 If a Valuer or Valuation Firm selected and notified to provide a quotation in accordance with clause 17.1 declines, the Valocity System may continue randomly notifying appropriate Valuers and Valuation Firms until three quotes are provided.

17.3 The Client will, in its absolute discretion, have the ability to direct the Valocity System to not select a particular Valuer, either:

(a) until further notice by the Client; or

(b) for a specific Valuation Request.

18. OTHER SERVICES

18.1 Valocity from time to time may by written notice to the Client make Other Services available as a feature via the Valocity System, with such notice to include:

(a) the fees of such Other Services;

(b) the Service Levels that will apply to such Other Services; and

(d) the Other Service Provider of the Other Services, or if there will be multiple Other Service Providers, how they will be appointed and selected; and

(e) any other terms and conditions associated with the Other Services.

18.2 After receipt of the written notice set out in clause 18.1, if the Client elects to use the relevant Other Service, it will be deemed to have accepted the terms set out in the notice, and such terms will be incorporated into the Agreement in regard to that Other Service only.

18.3 For the avoidance of doubt, Valocity may not vary the terms of the Agreement in relation to the Valuation Services by providing a written notice in accordance with clause 18.1.

19. INTEGRATION

19.1 In consideration for payment of the Upfront Valocity Integration Fees in accordance with clause 6,Valocity will provide the services set out in the Scoping Document on the conditions (if any) set out in the Scoping Document.

20. WORK ORDER

20.1 The Parties may from time to time agree for Valocity to provide additional Products and/or Services by specifying them in a Work Order as set out in the Schedule, subject to the applicable fees set out in the Work Order, which if signed by both Parties will form part of the Agreement.

21. VARIATION OF TERMS

21.1 The Client agrees that Valocity may unilaterally vary these Valocity Licence Terms, the Valuation Specific Terms, or the Valocity Service Level Terms by providing the Client 60 days written notice, and publishing the applicable revised terms as varied on the Valocity website, or making them available via the Valocity System.

21.2 On receipt of a notice served by Valocity in accordance with clause 21.1 (Variation Notice), the Client may, by providing Valocity 30 days written notice, terminate the Agreement.

21.3 If the Client has not exercised its right to terminate the Agreement in accordance with clause 21.2 within 60 days of receiving the Variation Notice, the Agreement will be deemed to be varied as proposed in the Variation Notice.

22. BACKGROUND CHECKS

22.1 Valocity will reasonably assist the Client, or request, to assist in completing required criminal history, or similar, checks on Valocity’s employees.

23. CLIENT’S OBLIGATIONS

23.1 During the Term, the Client must:

(a) not copy, reproduce, modify, distribute, revise, vary, translate, reverse-engineer, use, alter or disassemble the Valocity System in any way;

(b) not, directly or indirectly, cause or allow a third person to copy, reproduce, modify, distribute, revise, vary, translate, reverse-engineer, use, alter or disassemble the Valocity System in any way;

(c) not provide or allow access to the Valocity System, in any form, by any person other than the Client’s employees, sub-contractors or agents, without Valocity’s prior written consent;

(d) supervise and control the access and use of the Valocity System so that it is in accordance with the terms of the Agreement;

(e) promptly comply with any reasonable request or direction of Valocity in relation to the use of and access to the Valocity System;

(f) take reasonable measures to secure its information technology systems, such as considering adequate password complexity rules, regular password expiry policies, and use of commercially standard two factor authentication methods where available;

(g) provide Valocity free and full access to the Client’s equipment and software as reasonably required to enable Valocity to carry out its obligations under the Agreement; and

(h) promptly notify Valocity once becoming aware of any event that may constitute a breach of the Agreement;

(i) immediately notify Valocity once becoming aware of any actual or suspected security breach or other failure of the Valocity System;

(j) not do anything that is or may be harmful to Valocity’s interests, welfare, business, profitability, growth and reputation, or that may adversely impact upon Valocity’s ability to provide the Valocity System;

(k) comply with all applicable legislation, including the Privacy Act 1988 (Cth) to the extent that it applies to the Client;

(l) not, by its action or inaction, cause Valocity to breach any applicable legislation, including the Privacy Act 1988 (Cth); and

(m) ensure that its employees, sub-contractors and agents who have access to the Valocity System are made aware of, and comply with, the terms of the Agreement.

23.2 The Client acknowledges that a breach of clauses 23.1(a) or 23.1(b) or 23.1(c) is a breach of Valocity’s Intellectual Property Rights.

23.3 The Client acknowledges that it must have internet access in order to access the Valocity System, and that the performance of the Valocity System is dependent on the quality and speed of such internet connection.

24. VALOCITY’S OBLIGATIONS

24.1 The Parties acknowledge and agree that the following works do not fall within the scope of the Agreement:

(a) repair of any damage or malfunction whatsoever arising from the act, error, fault, neglect, misuse or omission, intentional or otherwise, of the Client, its employees, agents, contractors, invitees or any other person whether or not that person was under the control, direction or authority of the Client;

(b) repair of any damage or malfunction whatsoever caused by the operation of the Valocity System otherwise in accordance with the requirements of Valocity;

(c) repair of any damage or malfunction whatsoever arising from changes, alterations, connections, additions or modifications to the Valocity System;

(d) maintenance, configuration, or repair of any of the Client’s equipment or software;

(e) repair of any damage or malfunction whatsoever arising from the Client’s failure to comply with any provision of the Agreement;

(f) works which Valocity, in its absolute discretion, considers not to be reasonably required for the commercial performance and operation of the Valocity System; and

(g) training of the Client’s staff in the operation of the Valocity System.

25. OUTAGES

25.1 The Client acknowledges and agrees that Valocity or a third party provider may conduct upgrades and maintenance during the Term which may result in unavailability of the Valocity System (Outage).

25.2 The Client acknowledges and agrees that Outages will not be deemed a breach of the Agreement.

25.3 Valocity will use its best commercial endeavours to inform the Client of any Outage planned by Valocity that may affect the Valocity System, within a reasonable time prior to that Outage.

26. WARRANTY

26.1 Valocity will use its best endeavours to ensure, but because the Valocity System relies on the use of third party platforms it does not warrant, that:

(a) the Valocity System is error free;

(b) the suitability and performance of the Cloud Hosting as it relates to the Client’s internet connection;

(c) any enclosed or related documentation or manuals will allow a full understanding of the operational characteristics of the Cloud Hosting; or

(d) the Valocity System will meet the Client’s requirements.

26.2 The Client warrants that:

(a) it has exercised its independent judgement in entering the Agreement;

(b) it has not relied on any representation made by Valocity which has not been stated expressly in the Agreement or upon any descriptions or illustrations or specifications contained in any document including catalogues or publicity material produced by Valocity; and

(c) it will regularly backup its data and use appropriate and up-to-date malicious code and virus detection software for preventing and detecting against any virus, disability or malicious code, worm, trojan-horse virus, time bomb or other harmful or destructive code.

26.3 Each Party warrants that:

(a) it has full legal capacity and power to enter into this Agreement and to carry out the transactions contemplated by this Agreement;

(b) it has and will maintain appropriate processes and systems in place to ensure continuity of its business operations in order to perform its obligations under this Agreement;

(d) it is not aware of any circumstances which might give rise to any current, pending or threatened litigation, arbitration, investigation, inquiry or proceeding in which it is involved that will or may have an adverse effect on:

(i) Valocity’s business affairs or reputation; or

(ii) the Client’s reputation;

(e) in entering into and performing its obligations under this Agreement, it has not, and will not be, in breach of any laws or any obligations owed to another person;

(f) it will not knowingly or recklessly introduce any ‘computer virus’ or ‘malicious code’ into any Software or into the Valocity System and will use reasonable endeavours to prevent any such code being so incorporated or introduced; and

(g) it will at all times maintain, installed and updated anti-virus software, from a reputable vendor, at all network gateways where the network traffic may introduce malicious code or software into the Valocity System.

26.4 Without limitation to any express warranty in this Agreement, Valocity represents and warrants that, in relation only to Services actually supplied by Valocity (and not a Valuer or Valuation Firm):

(a) it has the right, power, licences and approvals necessary to supply the Services to the Client on the terms of this Agreement;

(b) without limiting the above, except in relation to third party software to be licensed to the Client directly by the owner of that software, it has the right to sub license any Software that is third party software to the Client on the terms of this Agreement;

c) on a continuing basis that the Services provided by Valocity:

(i) will be provided in a timely and professional manner and with all due care and skill;

(ii) comply with the specifications, if any, and other provisions of this Agreement and all applicable laws;

(iii) are free of any charge, lien, encumbrance or liability on the date of delivery to the Client; and

(iv) do not, and their use will not, infringe or make unauthorised use of the rights (including Intellectual Property Rights) of any person.

27. INDEMNITY

27.1 The Parties will, subject to clause 28 and applicable law, indemnify each other against any losses or liabilities reasonable incurred by the relevant indemnified Party arising out of, or in connection with, any negligence, fraud of, or material breach of this Agreement by the indemnifying Party or its employees, officers or agents.

27.2 Each Party must indemnify the other Party, and keep that other Party indemnified against all Losses or other payments, demands, liabilities and fines suffered or incurred as a consequence of:

(a) a breach of any privacy obligations; or

(b) use or disclosure of Confidential Information other than in accordance with this Agreement.

28. LIMITATION OF LIABILITY

28.1 The Client expressly acknowledges and agrees that, to the full extent permissible by law, Valocity will not be liable to the Client (directly or indirectly, whether that liability arises in contract, tort (including but not limited to negligence), equity, under statute or otherwise) for any Loss caused by, arising out of or in any way connected to:

(a) the use or contents of a Valuation Report or the document or report resulting from Other Services; or

(b) loss or damage sustained because of unauthorised access to the Valocity System or Other Services unless caused by Valocity’s wilful or negligent action or inaction;

(d) the accuracy, completeness or use of any information provided via the Valocity System, or directly to the Client, that Valocity received from its third party data suppliers except to the extent that Loss is directly caused by or arising out of a negligent act or omission of Valocity.

28.2 Subject to clause 28.1 above, to the extent permitted by law, a Party’s aggregate liability to the other (and their respective directors, officers, employees and agents) under this Agreement, however arising (including breach, negligence, misrepresentation or other contract or tort claim) is limited to $5,000,000.00.

28.3 To the extent permitted by law, the liability of a Party under this Agreement (excluding any liability under an indemnity) whether in contract, tort (including negligence), under statute or otherwise will not include any consequential loss or damages.

28.4 Nothing in this clause precludes the recovery by a Party of any costs, expenses, losses or damages to the extent they may fairly and reasonably be considered to arise from the breach or other wrongful act or omission giving rise to the relevant liability.

29. DISCLAIMER

29.1 The Client acknowledges that Valocity does not independently verify data or information provided by third parties or the Client.

29.2 Valocity is not liable:

(a) for any errors or omissions in data or information provided by third parties or the Client;

(b) to the extent that a defect in the Valocity Platform is caused by the Client or a third party;

(d) for any server failures, conflicts, incompatibilities or other circumstances which may impair the performance of the Valocity System or arise from a shared server environment; or

(e) for the failure of the Client to use the Valocity System otherwise than in accordance with the Agreement and the specifications issued by Valocity from time to time.

30. INTELLECTUAL PROPERTY RIGHTS

30.1 A Party must not use any trademark, trade name, logo or other designation of the other Party in any way without the other Party’s prior written consent.

30.2 The Client agrees:

(a) nothing in the Agreement transfers or creates any rights or interests in the Valocity System or Other Services in favour of the Client or any Authorised User, other than as explicitly granted in accordance with the Agreement;

(b) neither the Client nor any Authorised User have any Intellectual Property Rights in the Valocity System, the Other Services, or any of the displays, outputs, visual representations or data and the same shall remain the exclusive property of Valocity (or its applicable licensor) at all times;

(c) Valocity owns the Valocity System and Other Services, and that all Intellectual Property Rights in the Valocity System and Other Services (whether current or future) are vested in Valocity;

(d) Valocity and/or one of its licensors owns the Valocity Data, and that all Intellectual Property Rights in Valocity Data (whether current or future) vests in Valocity and/or its applicable licensor(s) upon its creation; and

(e) the Client must not use, reproduce, create derivative works, copy or commercially exploit any part, aspect or functionality of the Valocity System, the Other Services, or any Valocity Data without Valocity’s prior written consent.

30.3 Except as expressly stated otherwise in this Agreement, no Intellectual Property Rights of either Party which existed prior to the execution of this Agreement, or which comes into existence after the execution of this Agreement independently, is assigned or otherwise transferred under this Agreement or any Work Order.

30.4 Subject to any arrangements between the Client and Valuers, Intellectual Property Rights arising out of each Valuation Report will not be owned by the Client.

30.5 Notwithstanding the above and subject to any arrangements between the Client and Valuers, Valocity will procure that the Selected Service Provider grants the Client a non-exclusive, non-transferable, non-revocable, royalty-free licence to use any Valuation Report (as applicable) only and solely for the Purpose, provided that neither the whole, nor any part of a Valuation Report may be provided, reproduced or included in any published document, circular or statement without the prior written approval of Valocity.

30.6 To the extent that the Client is provided with Valocity Data as part of the Valuation Services or Valuation Reports, Valocity grants to the Client a non-exclusive, non-transferrable licence to use Valocity Data solely for the Valuation Purpose. In consideration for such licence, the Client also agrees to comply with the terms of use as notified by Valocity from time to time to the Client in writing, and that non-compliance of any such terms of use by the Client will constitute a breach of this Agreement.

30.7 The Client must not during, or any time after the expiry or termination of the Agreement, infringe Valocity’s Intellectual Property Rights or permit any act which infringes those Intellectual Property Rights.

30.8 The Client must advise Valocity if it becomes aware of any breach or infringement of Valocity’s Intellectual Property Rights.

30.9 The Client fully indemnifies Valocity against all liabilities, costs and expenses that Valocity may incur to a third party as a result of the Client’s breach of clause 30.7. The Client must notify Valocity immediately in writing of any actual, suspected or anticipated infringement of Valocity’s Intellectual Property Rights that comes to the attention of the Client.

30.10 This clause 30 survives termination or expiry of the Agreement.

31. CONFIDENTIALITY

31.1 Each Party must keep confidential all of the other Party’s information provided by or on behalf of that other Party. This clause does not apply to information which is lawfully obtained from a third party, is public knowledge, is already known or is otherwise independently developed by representatives of the first Party who have not been exposed to the information.

31.2 A recipient of Confidential Information undertakes to do the following in relation to all Confidential Information of the discloser:

(a) only use or reproduce (in any media or format) the Confidential Information for and to the extent necessary to perform its obligations or exercise its rights under this Agreement;

(b) only disclose the Confidential Information as permitted by this Agreement, or by law;

(c) keep the Confidential Information under its effective control and secure from theft, loss, and unauthorised access, use and disclosure at all times and subject to the same security measures to which it subjects its own information of a like kind and comply with all of the discloser’s reasonable security requirements notified to the recipient that relate to the Confidential Information;

(d) not challenge the ownership of any of the Confidential Information or assist any person to do so;

(e) not use any of the Confidential Information in the negotiation of any future arrangements with the discloser; and

(f) not use the Confidential Information in any way in competition with the discloser.

32. PRIVACY AND DATA

32.1 All data and information relating to a Party and its operations, facilities, customers, clients, personnel, assets and programs, in whatever form, but excluding Valuation Requests, Valuation Reports, Work Orders and the result of the Services performed under a Work Order) (a Party’s Data), remains the property of the respective Party at all times. Except as otherwise required by law, a Party must:

(a) not, and must ensure that its personnel do not, sell, commercially exploit, let for hire, assign rights in or otherwise dispose of the other Party’s Data;

(b) not make the other Party’s Data available to a third party other than a Subcontractor or Broker approved by the other Party and then only as is necessary for the Subcontractor or Broker to perform in connection with this Agreement or any Work Order; and

(c) not remove or transfer the other Party’s Data to any premises or systems not controlled by the other Party, without obtaining the prior written approval of the other Party.

32.2 The Parties agrees that the other Party’s Data may contain Personal Information. Where this is the case, the Parties must comply with the obligations and requirements the Privacy Act, and any Applicable Laws relating to privacy.

32.3 The Parties must:

(a) comply with the Privacy Act 1988 (Cth) (Privacy Act) and any Applicable Laws relating to privacy in doing any act or engaging in any practice under this Agreement; and

(b) if it is aware that there has been an event involving it or any other entities providing Services under this Agreement which may amount to an ‘eligible data breach’ as that term is defined in the Privacy Act, it must:

(i) as soon as possible, but within two Business Days of becoming aware, notify the other Party;

(ii) comply with its obligations under the Privacy Act in relation to that event;

(iii) provide the other Party with all information requested; and

(iv) if requested, allow the other Party to participate in its assessment of the event and whether it amounts to an eligible data breach.

32.4 A Party must, at its expense, in relation to any actual or suspected or likely breach by that Party or its personnel of this clause, the Privacy Act, or any Applicable Laws relating to privacy:

(a) notify the other Party immediately in writing on becoming aware or reasonably suspecting any such actual, suspected, or likely breach; and

(b) cooperate with any investigation relating to any such actual, suspected, or likely breach.

32.5 In the event that any incident set out in clause 32.3 involves a Subcontractor or Broker, the applicable Party will direct the Subcontractor or Broker to cooperate with any investigation relating to any actual, suspected or likely breach.

32.6 For the avoidance of any doubt, the Parties acknowledge that Valocity is not, and will not be, involved in the processing, storage, management or transmission of any cardholder data such as details of any credit, debit, or other form of payment card, including the account number, cardholder name, expiry date and card verification number.

33. TERMINATION

33.1 Either Party may terminate this Agreement for convenience and without cause at any time by giving the other Party at least 90 days’ written notice.

33.2 If the Client terminates this Agreement in accordance with clause 33.1:

(a) it may not initiate any new Valuation Requests or Work Orders during the notice period specified in clause 33.1; and

(b) it will not be liable to pay Valocity any fees in relation to the termination or incur any other liability, other than to pay for Products and/or Services delivered in accordance with this Agreement before the date of termination.

33.3 A Party may terminate this Agreement by notice to the other Party, effective immediately unless otherwise notified if:

(a) anything warranted by the other Party is incorrect in any material respect;

(b) the other Party breaches a material term of this Agreement, and the breach is not capable of rectification or, if it can be rectified, it is not rectified within 30 days of receipt of notice of the breach;

(c) a Party commits any act or omission involving fraud, deceit or dishonesty (whether in relation to the Agreement or otherwise).

(d) the other Party materially breaches any obligation under this Agreement or any Work Order that it has previously breached on two occasions (whether or not the previous breach was rectified); or

(e) to the extent permitted by law, the other Party becomes insolvent or ceases carrying on business.

34. CONSEQUENCES OF TERMINATION

34.1 Upon termination of this Agreement the Client must immediately:

(a) stop using, and ensure that each Authorised User stops using, the Valocity System, the Other Services, and any user manuals and other materials provided by Valocity in connection with the Valocity System and Other Services (except as reasonably necessary to complete Valuation Requests initiated by the Client prior to termination);

(b) return to Valocity copies of all documentation, user manuals and other information provided by Valocity and pertaining to the Valocity System and other Services which are in the possession of, or under the control of, the Client (excluding Valuation Requests, Valuation Reports, Work Orders and the result of the Services performed under a Work Order);

(c) without limiting the above, return to Valocity all Confidential Information of Valocity which is in the possession of, or under the control of, the Client, and which is capable of being delivered (excluding Valuation Requests, Valuation Reports, Work Orders and the result of the Services performed under a Work Order);

(d) destroy all Confidential Information of Valocity, (excluding Valuation Requests, Valuation Reports, Work Orders and the result of the Services performed under a Work Order) to the extent possible, which is in the possession of, or under the control of, the Client, and which is not capable of being delivered; and

(e) in the case of any Confidential Information that is electronically stored in any automatic back-up system or archive, the Client is only required to expunge such Confidential Information to the extent that it is reasonably practicable to do so, and any Confidential Information retained in such systems or archives shall remain subject to the terms of this Agreement.

34.2 Upon termination of this Agreement Valocity must immediately:

(a) return to the Client all Confidential Information of the Client, excluding Valuation Requests, Valuation Reports, Work Orders and the result of the Services performed under a Work Order, which is in the possession of, or under the control of, Valocity, and which is capable of being delivered;

(b) destroy all Confidential Information of the Client, excluding Valuation Requests, Valuation Reports, Work Orders and the result of the Services performed under a Work Order, to the extent possible, which is in the possession of, or under the control of, Valocity, and which is not capable of being delivered; and

(c) in the case of any Confidential Information that is electronically stored in any automatic back-up system or archive, Valocity is only required to expunge such Confidential Information to the extent that it is reasonably practicable to do so, and any Confidential Information retained in such systems or archives shall remain subject to the terms of this Agreement.

34.3 the Client is not entitled to compensation for loss of prospective profits on account of any termination of this Agreement.

34.4 For the avoidance of doubt, where only part of the Services under this Agreement has been terminated, clause 34.1 and 34.2 above will only apply with respect to the terminated Services and the remainder of this Agreement shall remain in full force and effect.

34.5 Termination of this Agreement (or any part of the Services under this Agreement) does not affect any accrued rights or remedies of either Party.

34.6 The obligations contained in clauses 26 (Warranties), 28 (Limitation of Liability), 27 (Indemnity), 30 (Intellectual Property), 32 (Data), 31(Confidentiality), 34 (Consequences of Termination), 38 (Dispute Resolution), 39 (Notice), 40.4 (Waiver), survive termination or expiry of this Agreement, together with any other term which by its nature is intended to do so.

35. FORCE MAJEURE

35.1 Where a Party is unable, wholly or in part, by reason of a Force Majeure Event to carry out any obligation under this Agreement and that Party:

(a) gives the other Party immediate written notice of the nature and expected duration of, and the obligation affected by, the Force Majeure Event; and

(b) uses all reasonable endeavours to:

(i) mitigate the effects of the Force Majeure Event on that Party’s obligations under this Agreement; and

(ii) perform that Party’s obligations under this Agreement despite the Force Majeure Event,
that obligation is suspended so far as it is affected by the Force Majeure Event during its continuance.

35.2 If, by reason of a Force Majeure Event, the delay or non-performance of a Party’s obligations continues for more than 30 consecutive days, the Party who is not relying on the Force Majeure Event may terminate this Agreement by written notice to the other Party.

36. AGREEMENT AND SUB-CONTRACTING

36.1 Except as provided for in this Agreement, Valocity must not subcontract any of its obligations under this Agreement unless it has obtained the prior consent of the Client, which consent will not be unreasonably withheld.

36.2 For the avoidance of doubt, the Parties acknowledge and agree that nothing in this clause 35 will apply to the appointment of Valuation Firms and/or Valuers to provide Valuation Services.

37. GST

37.1 Amounts payable under the Agreement are exclusive of GST.

37.2 When any consideration (whether expressed in money or otherwise) becomes due in respect of a Taxable Supply by Valocity, Valocity must provide the Client with a Tax Invoice and any other documentation required under the GST Law.

37.3 If GST is applicable to a Supply made under the Agreement, then, to the extent that the consideration for that Supply is not already stated to include an amount in respect of GST, Valocity may increase the consideration by the applicable amount of GST and the Client must pay that increased amount.

37.4 If the GST on a Taxable Supply is varied pursuant to any change in legislation, the consideration payable under the Agreement must be increased or decreased to reflect that variation of the GST.

37.5 For the purposes of this clause, GST, GST Law, Supply, Tax Invoice and Taxable Supply have the meanings attributed to those terms in A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended from time to time.

38. DISPUTE RESOLUTION

38.1 If a dispute arises in relation to the Agreement, one or more Parties may give written notice to another Party (together the Disputing Parties) requiring that an attempt be made to resolve the dispute and the Disputing Parties agree to use their best endeavours to first settle the dispute by discussions in good faith between the Disputing Parties (or a person a Disputing Party nominates as its representative).

38.2 If a dispute is not resolved within 25 Business Days (or such period as agreed in writing by the Disputing Parties) after written notice of the dispute has been given, any Disputing Party may give the other a written notice requiring that the dispute be resolved by a mediator appointed jointly by the Disputing Parties (Mediation Notice).

38.3 If the Disputing Parties do not agree on a mediator within ten Business Days after the Mediation Notice is given, the mediator is to be appointed by the Resolution Institute (Institute).

38.4 The mediation is to be conducted in accordance with the Institute’s Rules for the Conduct of Commercial Mediation and those rules are binding on the Disputing Parties.

38.5 The Disputing Parties must co-operate fully with the mediator.

38.6 Any written mediation agreement signed by the Disputing Parties which results from the mediation shall be binding on the Disputing Parties.

38.7 The Disputing Parties must pay an equal share of the fees and expenses the mediator is entitled to unless otherwise agreed.

38.8 Any Party must attempt to resolve a dispute in accordance with the procedures set down in this clause 38 before commencing legal proceedings against another Party, with the exception of Valocity recovering amounts due and payable to it by the Client.

38.9 Nothing in this clause 38 prevents a Party from seeking urgent injunctive, declaratory or other interlocutory or equitable relief before an appropriate Court.

39. NOTICES

39.1 A notice or other communication connected with the Agreement (Notice) has no legal effect unless it is in writing.

39.2 In addition to any other method of service provided by law, the Notice may be:

(a) delivered personally to the relevant person;

(b) sent by prepaid ordinary mail to the address of the addressee specified in the Address For Service;

(d) delivered at the address for service of the addressee.

39.3 A notice will be deemed to be given:

(a) if hand delivered – on the date of delivery;

(b) if posted – three Business Days after the date of posting;

except that a facsimile or electronic mail given after 5:30pm on a particular Business Day, before 8.30am on a particular Business Day or at any time on a day other than a Business Day, will be deemed to be given at 8.30am on the next Business Day.

39.4 A Party may change its Address For Service by giving written Notice of that change to each other Party.

40. GENERAL

40.1 The Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in the Agreement.

40.2 Each Party must promptly at its own cost do all things (including executing all documents) necessary or desirable to give full effect to the Agreement.

40.3 Valocity may vary the Agreement in accordance with clause 8. The Client may not vary or amend the Agreement without Valocity’s written agreement with such agreement to be signed by both the Parties.

40.4 Failure or neglect by a Party to enforce at any time any of the provisions of the Agreement will not be construed or deemed to be a waiver of that Party’s rights under the Agreement.

40.5 The Agreement will be governed by and construed in accordance with the law of the State of New South Wales and the Parties submit to the exclusive jurisdiction of Courts operating in the State of New South Wales and any relevant appellate courts.

40.6 The Agreement may be executed in any number of counterparts and all of those counterparts taken together constitute one and the same instrument.

40.7 The Parties acknowledge and agree that:

(a) all the provisions of the Agreement are reasonable in all the circumstances and that each provision is and shall be deemed to be severable and independent; and

(b) if all or any part of any provision is judged invalid or unenforceable in all the circumstances, it will be deemed to be deleted and will not affect the validity or enforceability of the remaining provisions.

40.8 The Client may not assign or transfer any of its rights or obligations under the Agreement without the prior consent in writing of all the other Parties.

40.9 No provision of the Agreement:

(a) merges on or by virtue of termination of the Agreement; or

(b) is in any way modified, discharged or prejudiced by reason of any investigations made or information acquired by or on behalf of the Client.

40.10 Each Party warrants that it has entered into the Agreement without relying on any representation by any other Party or any person purporting to represent that Party.

40.11 The Agreement forms the entire agreement of the Parties in relation to the Valocity System. All representations, communications and prior agreements in relation to the subject matter are superseded by the Agreement.

Valocity Licence Terms

IT IS AGREED:

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