Tanda HR Advisory Terms & Conditions

1.1 REFERENCE SCHEDULE

Where a term used in this agreement appears in bold type in the Reference Schedule, that term has the meaning shown opposite it in the Reference Schedule.

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1.2 DEFINITIONS

In this agreement:

Advice means any advice, recommendation, guidance, documentation, material or other communication (in recorded form or otherwise) provided by Tanda Employment Advisory in the provision of the Services.‍

Associates means, in respect of a party, that party’s Related Bodies Corporate, Related Entities, employees, contractors, directors, and/or professional advisors.‍

Authorised Officer means, in relation to a corporation which is a party:

1. an employee of the party whose title contains either of the words Director or Manager;
2. a person performing the function of any of them;
3. a solicitor acting on behalf of the party; or
4. a person appointed by the party to act as an Authorised Officer for the purposes of this deed and notified to the others.‍

Business Day means:

1. if determining when a notice, consent or other communication is given, a day that is not a Saturday, Sunday or public holiday in the place to which the notice, consent or other communication is sent; and
2. for any other purpose, a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Brisbane, Queensland.‍

Claim means, in relation to a person, any action, allegation, claim, demand, judgment, Liability, proceeding, remedy, right of action or right of set-off made against the person concerned however it arises whether:

1. it is present, unascertained, immediate, future or contingent;
2. it is based in contract, tort, statute or otherwise; or
3. it involves a third party or a party to this agreement.‍

Client Materials means any information, data, documents or other materials provided by the Client to Tanda Employment Advisory pursuant to this agreement, or collected by Tanda Employment Advisory from the Client or its Personnel in the performance of the Services.‍

Confidential Information means, in relation to each party (for the purposes of this definition, Discloser), means any information which is disclosed in any form, whether before or after the Commencement Date, by the Discloser and which:

1. is by its nature confidential;
2. is designated as confidential by the Discloser;
3. the recipient knows or ought to know is confidential; or
4. information concerning the business, assets, liabilities, financial position, customers, pricing policies, marketing strategies, Intellectual Property Rights or proposed business plans of the Discloser;
   
   but excluding any such information:
5. which is publicly known;
6. which is disclosed to the other party without restriction by a third party (other than the Discloser) and without any breach of confidentiality by that third party; or
7. which is developed independently by the other party without reliance on any of the confidential information.‍

Consequential Loss means any of the following: loss of revenue; loss of profits; loss of opportunity to make profits; loss of business; loss of business opportunity; loss of use or amenity, or loss of anticipated savings; special, exemplary or punitive damages; and any loss which does not directly and naturally flow in the normal course of events from the occurrence of the event giving rise to the liability for such loss, whether or not such loss was in the contemplation of the parties at the time of entry into the agreement, including any of the above types of loss arising from an interruption to a business or activity.‍

Corporations Act means the Corporations Act 2001 (Cth).‍

GST means GST as that term is defined in the GST Law, and any interest, penalties, fines or expenses relating to such GST.‍

GST Law means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and/or associated Commonwealth legislation, regulations and publicly-available rulings.‍

Insolvency Event means:

1. in relation to any corporation:
   1. its liquidation;
   2. an external administrator is appointed in respect of the corporation or any of its property;
   3. the corporation ceases or threatens to cease to carry on its business;
   4. the corporation being deemed to be, or stating that it is, unable to pay its debts when they fall due;
   5. any other ground for liquidation or the appointment of an external administrator occurs in relation to the corporation;
   6. the corporation resolves to enter into liquidation; or
   7. an application being made which is not dismissed or withdrawn within ten Business Days for an order, resolution being passed or proposed, a meeting being convened or any other action being taken to cause or consider anything described in paragraphs (1) to (6) (inclusive) above;
2. in relation to an individual, that person becoming an insolvent under administration as defined in section 9 of the Corporations Act; and
3. in relation to any person, anything analogous to or having a similar effect to anything described above in this definition under the law of any relevant jurisdiction.‍

Intellectual Property Rights means all current and future registered and unregistered rights in respect of copyright, circuit layouts, designs, trade marks, know-how, confidential information, patents, inventions and discoveries and all other intellectual property as defined in article 2 of the convention establishing the World Intellectual Property Organisation 1967.‍

Law means any statute, rule, regulation, proclamation, order in council, ordinance, local law or by-law, whether:

1. present or future; or
2. State, federal or otherwise.‍

Liability means any liability, debt or obligation, whether actual, contingent or prospective, present or future, qualified or unqualified or incurred jointly or severally with any other person.  Liable has a corresponding meaning.‍

Licence means the limited licence granted to the Advice contained in clause 3.2(a).‍

Loss means any loss (including Consequential Loss), claims, actions, liabilities, damages, expenses, diminution in value or deficiency of any kind whether direct, indirect, consequential or otherwise.‍

Personal Information has the meaning given in the Privacy Laws.‍

Personnel means in relation to a party, any employee, contractor, officer, Related Body Corporate or Related Entity of that party.‍

Privacy Laws means the Privacy Act 1988 (Cth).‍

Proposal means an order form, quote, proposal or other ordering document detailing the precise scope of the Services to be provided under this agreement.‍

Related Body Corporate has the meaning given to that term in the Corporations Act.‍

Related Entity has the meaning given to that term in the Corporations Act.‍

Renewal Period has the meaning given to that term in clause 2.2.‍

Term means the duration of the agreement, being the Initial Term and any applicable Renewal Periods.

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1.3 INTERPRETATION

1. Unless the contrary intention appears, a reference in this agreement to:
   1. this agreement or another document includes any variation or replacement of it despite any change in the identity of the parties;
   2. the singular includes the plural and the plural includes the singular;
   3. a person, partnership, corporation, trust, association, joint venture, unincorporated body, government body or other entity includes any other of them;
   4. an item, recital, clause, subclause, paragraph, schedule or attachment is to an item, recital, clause, subclause, paragraph of, or schedule or attachment to, this agreement and a reference to this agreement includes any schedule or attachment;
   5. a party includes the party’s executors, administrators, successors, substitutes (including a person who becomes a party by novation) and permitted assigns;
   6. any statute, ordinance, code or other law includes regulations and other instruments under any of them and consolidations, amendments, re-enactments or replacements of any of them;
   7. money is to Australian dollars, unless otherwise stated; and
   8. a time is a reference to Brisbane, Queensland time unless otherwise specified.
2. The words include, including, such as, for example and similar expressions are not to be construed as words of limitation.
3. Where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning.
4. Headings and any table of contents or index are for convenience only and do not affect the interpretation of this agreement.
5. A provision of this agreement must not be construed to the disadvantage of a party merely because that party or its advisers were responsible for the preparation of this agreement or the inclusion of the provision in this agreement.

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1.4 BUSINESS DAYS

1. If anything under this agreement must be done on a day that is not a Business Day, it must be done instead on the next Business Day.
2. If an act is required to be done on a particular day, it must be done before 5.00pm on that day or it will be considered to have been done on the following day.

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2.1 INITIAL TERM

Subject to clause 2.2 below, this agreement:

1. commences on the Commencement Date; and
2. continues for the Initial Term,

unless terminated earlier in accordance with clause 9.

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2.2 ROLLOVER

Unless:

1. one of the parties provides written notice to the other part of their intention to allow the Term to expire not less than 30 days prior to the expiration of the Initial Term or any Renewal Period under this clause 2.2 (Expiry Notice); or
2. this agreement has otherwise been terminated in accordance with clause 9,

the Term of this agreement shall automatically and continuously renew for further periods of the custom renewal term detailed in Reference Schedule or Proposal (Renewal Period) on the terms and conditions of this agreement (as may be varied under clause 16.9).

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2.3 EXPIRY NOTICE

Where a party provides the other with an Expiry Notice, the Term will expire at the end of the then-current Term.

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3.1. SERVICES

1. Tanda Employment Advisory will use commercially reasonable endeavours to provide the Services with all due care and skill, and in a timely manner.
2. The following services are outside of scope of the Services:
   1. provision of HR, workplace or industrial relations legal advice; and
   2. taxation or financial advice.
3. The Client acknowledges and agrees that Tanda Employment Advisory may engage contractors and subcontractors in the performance of its obligations under this agreement, provided that any such third-parties are bound to terms of privacy and confidentiality which are at least as onerous as those contained in clauses 7 and 8.
4. The Client agrees that, while the Client may indicate a preference as to the manner in which it wishes to receive Advice under this agreement, Tanda Employment Advisory is not subject to the direction of the Client in the manner of its delivery of the Advice and Services.

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3.2. LICENCE

1. In consideration of the Client’s timely payment of the Subscription Fees, Tanda Employment Advisory grants the Client an irrevocable (subject to termination), non-exclusive, non-transferable licence for the Term to use the Advice for its internal business purposes.
2. The Client acknowledges, and agrees, that the rights granted to it under the Licence are expressly limited to the rights stated above. To the fullest extent permitted by law, all implied rights in relation to the Licence are excluded.
3. No rights of ownership of the Intellectual Property Rights comprised in the Advice are transferred under this agreement, and Tanda Employment Advisory retains ownership of same.
4. Subject to clause 3.2(e):
   1. as a fundamental condition of the Licence, the Client agrees that the prior written consent of Tanda Employment Advisory is required to sub-licence any right or obligation under this agreement; and
   2. the Client is expressly prohibited from re-selling, commercialising, disseminating to third parties, publishing or otherwise reproducing the Advice.
5. Notwithstanding clause 3.2(c) the Client may share the Advice with the Client’s Associates as reasonably required to address the matter the subject of the Advice.
6. The Client grants Tanda Employment Advisory a perpetual, non-exclusive, non-transferable, royalty-free licence to use, adapt and modify the Client Materials during the Term, but solely for the purpose of providing the Services to the Client.

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1. The Client agrees to pay the Subscription Fees in the manner set out in the Payment Terms.
2. Once every anniversary of the Commencement Date, Tanda Employment Advisory may increase the Subscription Fees, or any other amount payable under this agreement with 30 days’ notice, by an amount equal to the Consumer Price Index Number (All Groups) in Brisbane published by the Australian Bureau of Statistics, or if that index does not exist, the nearest equivalent index.
3. The Client acknowledges and agrees that the Subscription Fees are calculated based on the Client’s estimate of total staff numbers within its business. If the total number of staff engaged or employed by the Client, or any of its Related Bodies Corporate or Related Entities, materially increases (in the reasonable determination of Tanda Employment Advisory), Tanda Employment Advisory may increase the Subscription Fees accordingly with 7 days’ prior notice.

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Tanda Employment Advisory may suspend provision of the Services under the following circumstances:

1. where the Client fails to pay the Subscription Fees within 14 days of them becoming overdue pursuant to the Payment Terms;
2. if there is a Claim made against Tanda Employment Advisory or the Client relating to Tanda Employment Advisory's provision of the Advice that exposes, or has the potential to expose, Tanda Employment Advisory to Liability or prosecution for an office or liability to a statutory prosecution;
3. if Tanda Employment Advisory determines that the Client is in material breach of this agreement, including breach of clause 3.2.

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7.1. PRIVACY LAWS

1. Each party agrees to comply with all Privacy Laws in relation to any and all Personal Information that it collects from the other party in connection with this agreement.
2. The Client warrants that it has sought the necessary consents required under the Privacy Laws, the Spam Act 2003 (Cth) and the Do Not Call Register Act 2006 (Cth) from all individuals whose Personal Information it causes to be disclosed to Tanda Employment Advisory, to enable Tanda Employment Advisory (or its Personnel):
   1. to collect such Personal Information; and
   2. to hold and use that Personal Information for the purposes of Tanda Employment Advisory performing its obligations and exercising its rights under this agreement.
3. The Client indemnifies Tanda Employment Advisory from and against all Claims made against, and Loss suffered by, Tanda Employment Advisory or its Personnel in connection with the Client’s breach of clause 7.1(b).
4. The Client consents to use by Tanda Employment Advisory of the Client Materials in de-identified form in connection with Tanda Employment Advisory's internal business purposes, including product development and research.
5. Within a reasonable period of becoming aware of an Eligible Data Breach (as defined under the Privacy Laws) in respect of any Personal Information contained in the Client Materials, Tanda Employment Advisory will provide written notice of such breach and any material information available to it to the Client. Tanda Employment Advisory agrees to provide reasonable assistance required by the Client, if any, to investigate such Eligible Data Breach.

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7.2. SECURITY

1. Tanda Employment Advisory must obtain and maintain over the Term a current SOC-2 certification in relation to Tanda Employment Advisory systems in which the Client Material will be stored, or an equivalent industry accepted certification that confirms an independent auditor has verified that Tanda Employment Advisory has taken certain steps to prevent such systems from unauthorised access.
2. Tanda Employment Advisory must produce evidence of such certification to the Client on request.

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8.1. NON-DISCLOSURE

1. Each party must keep the other party’s Confidential Information, confidential.
2. A party must not, without the prior written approval of the other party, disclose the other party's Confidential Information.
3. Each party must take all reasonable steps to ensure that its Personnel (and any subcontractors) engaged for the purposes of this agreement, do not make public or disclose the other party's Confidential Information.

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8.2. RETURN OF CONFIDENTIAL INFORMATION

1. Except as expressly permitted under this agreement, a party who has received Confidential Information from the other party pursuant to this agreement must, on the request of the other party and as directed by that party:
   1. immediately deliver all documents or other materials containing Confidential Information of the disclosing party, which are in the recipient party’s possession, power or control, or in the possession, power or control of persons who have received Confidential Information from it (Confidential Materials); or
   2. destroy all Confidential Materials (and certify the destruction to that party) as soon as possible.
2. Clause 8.2(a) does not apply to the delivery up or destruction of the Confidential Materials:
   1. to the extent that the recipient party keeps a copy for the purposes of archive (including electronic backup data storage), professional indemnity insurance, legal advice or legal compliance, provided that the recipient party keeping Confidential Materials on that basis must (on request made by the disclosing party at any time) inform the disclosing party of the recipient party’s retention arrangements and promptly give written assurances as the disclosing party reasonably requires regarding protection against unauthorised use or disclosure (including as to systems security); and
   2. of the Client which Tanda Employment Advisory requires in order to comply with its obligations under this agreement, which upon termination or expiry of such obligations must then be delivered or destroyed in accordance with this clause 8.2.

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8.3. ACKNOWLEDGEMENT AS TO TYPES OF REMEDY

Each party acknowledges and accepts that:

1. the other party would suffer financial and other loss and damage if its Confidential Information was disclosed to any other person or used for any purpose other than as permitted under this agreement, and accordingly that monetary damages may be an insufficient remedy; and
2. in addition to any other remedy, which may be available in law or equity, the other party is entitled to injunctive relief to prevent a breach, and to compel specific performance, of any of clause 8.1 (Non-disclosure).

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8.4. SURVIVAL

This clause survives the termination or expiration of the agreement for the period set forth in clause 8.2 (Return of Confidential Information).

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9.1. TERMINATION FOR CAUSE

Either party (First Party) may terminate this agreement immediately by written notice upon the occurrence of one of the following events:

1. if the other party is in breach of the agreement and that other party has failed to remedy the breach within 1 calendar month of a written notice to it from the First Party, specifying the breach and requiring it to be remedied;
2. if the other party is in breach of the agreement and that breach is not capable of remedy, as reasonably determined by the First Party; or
3. an Insolvency Event occurs in respect of the other party.

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9.2. NO PREJUDICE OF RIGHTS

Termination shall not prejudice or affect any right or action which shall have accrued or shall thereafter accrue to either party.

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9.3. CONSEQUENCES OF TERMINATION OR EXPIRY

Upon termination or expiration of this agreement:

1. the licences granted under clause 3.2 are revoked and the Client must cease use of all Advice provided during the Term;
2. the Services terminate; and
3. all monies owing under the agreement become immediately payable and due.

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10.1. EXCLUSIONS

1. Tanda Employment Advisory is not liable for any Losses suffered, or Claims made against, the Client as the result of:
   1. reliance on Tanda Employment Advisory’s Advice by a third party to this agreement;
   2. the Client’s misstating or omission of information relevant to the associated Advice provided by Tanda Employment Advisory;
   3. the Client’s application of the Advice other than to the specific circumstances described to Tanda Employment Advisory when seeking advice; or
   4. changes made by the Client or third parties to any Advice provided by Tanda Employment Advisory in the provision of the Services.
2. The Client acknowledges and agrees that:
   1. Tanda Employment Advisory does not engage legal practitioners, taxation experts, accountants or financial advisors to provide the Services;
   2. any Advice produced in the performance of the Services does not constitute legal, taxation or financial advice; and
   3. Tanda Employment Advisory is not liable for any penalties (including in respect of income tax or unpaid wages) levied against the Client by a government authority as the result of the Client’s reliance on, or interpretation of, Tanda Employment Advisory's Advice.
3. The Client acknowledges that Tanda Employment Advisory does not provide advice on matters outside of Australia, and disclaims all Liability arising from the Client’s reliance on any Advice in respect of matters involving its staff or operations based overseas
4. Tanda Employment Advisory's advice is current as at the date of providing its Advice subject of the Services. While Tanda Employment Advisory will make reasonable efforts to alert the Client to circumstances that may change its conclusions and recommendations contained in any Advice, Tanda Employment Advisory is not liable for any Losses suffered, or Claims made against, the Client as the result of changes in applicable Laws since the date that Advice is provided.
5. Neither party is liable to third parties under, or in connection with, this agreement.
6. To the extent permitted by Law, in no event will either party be liable to the other for Consequential Loss even if that has been made aware of the possibility of such Consequential Loss prior to entering into the agreement.

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10.2. IMPLIED TERMS

1. To the full extent permitted by Law, any term which would otherwise be implied into the agreement is excluded.
2. In the event any Law implies or imposes terms into this agreement which cannot be lawfully excluded, such terms will apply, save that the liability of Tanda Employment Advisory for breach of any such term will be limited in accordance with clause 10.3.

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10.3. LIABILITY CAP

To the extent that Tanda Employment Advisory is Liable in connection with this agreement (whether in contract, under a right of indemnity, tort or statute), then Tanda Employment Advisory’s cumulative Liability in the aggregate (to the fullest extent permitted by Law) will in no event exceed the sum of the Subscription Fees received by Tanda Employment Advisory under the agreement in the 12 months prior to the date upon which the Liability first arose.

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11.1. GST EXCLUSIVE

Unless expressly stated to the contrary all amounts expressed in this agreement are exclusive of GST.

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11.2. RECIPIENT TO PAY SUPPLIER

1. If a party (the Supplier) is obliged under the GST Law to pay an amount of GST for a taxable supply made by the Supplier to another party (the Recipient) under this agreement, the Recipient must pay the Supplier an amount equal to the GST payable on the supply by the Supplier.
2. The Recipient must pay the amount referred to in this clause 11.2 and any interests, penalties, fines or expenses relating to the GST, in addition to and at the same time as the consideration otherwise payable by the Recipient for the supply.

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11.3. TAX INVOICE

If requested by the Recipient, the Supplier must provide the Recipient with a Tax Invoice on or before payment of the amounts required by clause 11.2.

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The Client agrees Tanda Employment Advisory may promote the Client’s use of the Services on Tanda Employment Advisory's website, responses to requests for proposals and external presentations for the purposes of promoting the Services. Tanda Employment Advisory may also promote the Client’s use of the Services in case studies and press releases where the Client’s prior permission is obtained.

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13.1. DISPUTE RESOLUTION PROCESS

1. Subject to clause 13.1(b), a party claiming that a dispute or disagreement has arisen out of, or in connection with, this agreement (Dispute) will, within five Business Days of the Dispute arising, give written notice to the other party providing particulars of the Dispute (Notice of Dispute) and designating which of its Authorised Officers has authority to settle the Dispute.
2. The parties agree that the dispute resolution process in this clause 13.1 does not apply to Disputes in connection with the calculation or invoicing of the Subscription Fees.
3. The parties will meet at a location or arrange a telephone conference as agreed between the parties in writing within five Business Days of receipt of the Notice of Dispute in accordance with clause 13.1(a) to seek to resolve the Dispute amicably.
4. If the Dispute has not been resolved within 20 Business Days of receipt of the Notice of Dispute, the parties may agree to refer the dispute to mediation administrated by a mediator recommended and accredited by the Resolution Institute in accordance with the Resolution Institute’s professional mediation rules or an equivalent professional mediator in any jurisdiction outside of Australia. The party issuing the Notice of Dispute must pay the costs of the mediator appointed pursuant to this clause.
5. If the Dispute has not been resolved within 30 Business Days of receipt of the Notice of Dispute then (on the basis that the exhaustion of the dispute resolution process set out in this clause 13.1 is a condition precedent to the right of either party to commence court proceedings in relation to the Dispute) the party who first served the Notice of Dispute may commence litigation.
6. Any mediation discussions and proceedings undertaking in accordance with clause 13.1 constitute Confidential Information and will take place in Brisbane (or such other location as the parties may agree between themselves in writing).

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13.2. URGENT RELIEF

Despite the condition precedent referred to in clause 13.1(e), nothing in this agreement shall prevent either party seeking injunctive or urgent declaratory relief for any matter (including to protect Confidential Information) arising out of, or in connection with, this Agreement.

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13.3. OBLIGATIONS CONTINUE

Despite the existence of a Dispute, each party will at all times continue to fulfil all obligations under the agreement, including in respect of confidentiality.

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14.1. FORM

Any notice or other communication to or by any party must be:

1. in writing and in the English language;
2. addressed to the address of the recipient in clause 14.4 or to any other address as the recipient may have notified the sender; and
3. be signed by the party or by an Authorised Officer of the sender.

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14.2. MANNER

In addition to any other method of service authorised by law, the notice may be:

1. personally served on a party;
2. left at the party’s current address for service;
3. sent to the party’s current address for service by prepaid ordinary mail or if the address is outside Australia by prepaid airmail; or
4. sent by electronic mail to the party’s electronic mail address.

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14.3. TIME

If a notice is sent or delivered in the manner provided in clause 14.2 it must be treated as given to or received by the addressee in the case of:

1. delivery in person, when delivered;
2. delivery by post:
   1. in Australia to an Australian address, the fourth Business Day after posting; or
   2. in any other case, on the tenth Business Day after posting; or
3. electronic mail, when the sender’s computer reports that the message has been delivered to the electronic mail address of the addressee,

but if delivery is made after 5.00pm on a Business Day it must be treated as received on the next Business Day in that place.

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14.4. INITIAL DETAILS

The address details for service are initially as detailed in the Reference Schedule.

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14.5. CHANGES

A party may from time to time change its details for service by notice to each other party.

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1. This agreement is governed by and construed in accordance with the laws of Brisbane, Australia.
2. Each party irrevocably submits to the non-exclusive jurisdiction of the courts of Brisbane, Australia.

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16.1. EXERCISE RIGHTS

A single or partial exercise or waiver by a party of any right under or relating to this agreement will not prevent any other exercise of that right or the exercise of any other right.

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16.2. MERGER

If the liability of a party to pay money under this agreement becomes merged in any deed, judgment, order or other thing, the party liable must pay interest on the amount owing from time to time under that deed, judgment, order or other thing at the higher of the rate payable under this agreement and that fixed by or payable under that deed, judgment, order or other thing.

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16.3. MORATORIUM LEGISLATION

Any law which varies prevents or prejudicially affects the exercise by a party of any right, power or remedy conferred on it under this agreement is excluded to the extent permitted by law.

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16.4. NO ASSIGNMENT

A party must not assign, transfer or novate all or any part of its rights or obligations under or relating to this agreement or grant, declare, create or dispose of any right or interest in it, without the prior written consent of each other party.

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16.5. REMEDIES CUMULATIVE

The rights and remedies under this agreement are cumulative and not exclusive of any rights or remedies provided by law.

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16.6. SEVERABILITY

If a provision of this agreement is illegal, invalid, unenforceable or void in a jurisdiction it is severed for that jurisdiction and the remainder of this agreement has full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected.

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16.7. FURTHER ASSURANCE

Each party must promptly at its own cost do all things (including executing and delivering all documents) necessary or desirable to give full effect to this agreement and the transactions contemplated by it.

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16.8. COSTS

Each party is responsible for all its own costs incurred in the negotiation and performance of this agreement, including legal costs.

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16.9. VARIATION

Except in respect of increases to the Subscription Fee under clauses 4(b) and 4(c), Tanda Employment Advisory may amend the terms applicable to any Renewal Period with at least 30 days’ notice prior to the expiry of the then-current Term.

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16.10. WAIVER

(a) A party’s waiver of a right under or relating to this agreement, whether prospectively or retrospectively, is not effective unless it is in writing and signed by that party.

(b) No other act, omission or delay by a party will constitute a waiver of a right.

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16.11. COUNTERPARTS

This agreement may be executed electronically and in any number of counterparts each of which will be considered an original but all of which will constitute one and the same instrument. A party who has executed a counterpart of this agreement may deliver it to, or exchange it with, another party by emailing a pdf (portable document format) copy of the executed counterpart to that other party, including as facilitated via electronic signature software.

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16.12. FORMATION AND PRECEDENCE

1. This agreement, together with:
   1. the Proposal; and
   2. any other materials or documentation agreed between the parties to form part of this agreement:
      1. is the entire agreement and understanding between the parties relating to the subject matter of this agreement, and supersedes any prior agreement, representation (written or oral) or understanding on anything connected with that subject matter.
2. To the extent of any inconsistency or conflict between the documents referred to in clause 16.12(a), the following will be the order of precedence:
   1. this agreement;
   2. the Proposal; and
   3. any other materials or documentation agreed between the parties to form part of this agreement.

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