SHPING SYSTEM - BUSINESS USERS TERMS OF USE

1.Summary

1.1 These Terms of Use are an Agreement which governs your use of the Services and forms a binding contractual agreement between you, as a System User of our Services, and Authenticateit Pty Ltd (ACN 155 162 253) t/as Shping.

2.The Services

2.1 Shping owns or has the right to operate and license the use of the System.

2.2 The Services Shping will provide you depends upon the Modules the System User has subscribed for.

2.3 The System User wishes to access and use the Module of the System and receive related Services in respect of the Module, and Shping has agreed to provide the Services, and to grant the System User a personal, non-exclusive, non-transferable licence to access and use the Module of the System during the Term, on the terms and subject to the terms and conditions set out in these Terms of Use.

2.4 System Users use and access the System and the Module for the purpose of a Project. That Project might be the System User’s Project or might be the Project of another party (or multiple Projects of a number of different parties).

2.4 Where the System User enters into this Agreement for the purpose of another party’s Project, then the System User will be considered to be an Invited System User for the purpose of that party’s Project. Similarly, if the System User has requested that other parties use and access the System and the Module for the purpose of the Project, then those parties are Invited System Users for the purpose of this Agreement and for the Project. In that context, the System User could enter into this Agreement for the purpose of its own Project, or for the purpose of being an Invited System User with respect to another party’s Project. These Terms of Use are intended to cover the rights and responsibilities of the System User’s access and use of the System and the Module in either capacity.

2.5 It is the responsibility of the System User at all times to ensure that the User Capacity or Capacities under which it accesses and uses the System and the Module is correct and up to date, as the extent of use and access, and the Fees payable, depend on the accuracy of such User Capacities.

3.Modules

3.1 The System User acknowledges that:

a. they have selected the specific Modules that it wishes to access during the term of this Agreement and have notified such selection to Shping (being the Module); AND

b. the Module apply to an Invited Systems User.

3.2 Provided that it is not in default of any obligation under these Terms of Use, and subject to any minimum notice periods that may be required by Shping, the System User may at any time by notice to Shping select additional Modules (including upgrading any Module) or deselect Module (Modified Modules). The Fees (including any applicable upgrade Fees) for the Modified Modules are payable by the System User as advised to the System User by Shping.

Module3.4 The System User acknowledges that Shping may, at any time and at its sole discretion, alter, augment, improve, scale, reduce, limit, replace, suspend (whether temporarily or permanently) or cancel any Module or the functionality of any Module or Invited System User rights. If a Selected Module is cancelled or suspended by Shping (except by reason of any breach of these Terms of Use by the System User) then the Fee payable (if any) with respect to such Selected Module shall abate for the period of suspension or cancellation.

4.System Users

4.3 The System User acknowledges and agrees that the effectiveness of the System and the Module is dependent on the marketing strategy of the System User and its Invited System Users participating in and using the System and the Module in accordance with their intended purposes and with any reasonable and lawful requests put to them by Shping.

4.4 The System User:

(a) where applicable must require all Invited System Users to use the System and the Module in relation to data sourcing and entry;

(b) will also encourage any Invited System User to accept and comply with the terms and conditions of Shping in relation to their access to and use of the System and the Module. While that direct arrangement remains on foot, any sub-licence granted by the System User to Invited System Users under 14.1(b) will be suspended and the direct arrangement between Shping and that Invited System User as referred to in this clause 4.4(b) will apply;

(c) acknowledges that an Invited System User might already have entered into a System Agreement with Shping (for example, in relation to the Project of a different System User) and that while that System Agreement shall apply for the purpose of that Invited System User’s use and access to the System for the System User’s Project, the System User is nonetheless responsible for ensuring that the System Agreement of such Invited System User is acceptable for and in the context of the Project, having regard to the User Capacity of the relevant Invited System User.

4.5 The System User must, and warrants to Shping that all of the Invited System Users (irrespective of whether or not such Invited System User have entered into their own System Agreements with Shping) and any person that uses the System via the login details of the System User, will at all times:

(a) have read and understood these Terms of Use and agreed to be bound by its terms;

(b) use the System and the Module only for the Specified Purpose and within the any limitations imposed on that Invited System User by reason of its User Capacity;

(d) not access and use the System or any Module or functionality of the System other than the Module;

(e) accurately enter on the System and maintain the currency and accuracy on the System of all data and other information in its possession or control which is required by the System to operate in accordance with the Documentation;

(f) register and configure into the System all necessary details of all Invited System Users and any other parties that may be required for the functionality of the System and the Module;

(g) ensure that any information that has been entered on the System, including about the System User and Invited System Users and products is at all times accurate, complete and up to date;

(i) ensure that its own systems that are used to access the System, and its means of accessing the System, comply with the Documentation, and are operated in accordance with reasonable security procedures (including security procedure contained in the Documentation) to prevent unauthorised access to information, data or the System;

(j) not tamper with, or do or refrain from doing anything that will or might interfere with or hinder the proper operation of the System or any Module of the System, nor make any unauthorised modification to or use of the System or any Module of the System;

(k) not introduce (or by inaction or failure to implement and maintain proper security measures permit to be introduced) any virus or other malicious code to or from the System;

(l) not change any administration settings on any part of the System unless they are the appointed administrator for the System User’s account;

(m) keep confidential and safeguard from unauthorised access or use, any user names, passwords, account names, Shping Coin tokens or log in identifications or other security devices or information required to access any facility forming part of, or made available while using the System;

(n) not upload on to the System any material, or use the System in any way:

which infringes the rights, including the Intellectual Property Rights of any person; or
which is unlawful or violates any law; or
that falsely or misleadingly represents or suggests that any articles to which any Trade Marks have been applied are authentic or that their manufacture, importation for sale, offering for sale and sale in the relevant territories does not infringe any third person’s rights or contravene any applicable law; or
that falsely or misleadingly represents or suggests that any articles to which any Trade Marks have been applied are not the subject of a recall (if in fact they are the subject of a recall) or are the subject of a recall (if in fact they are not the subject of a recall); and
not modify, alter, adapt, disassemble, reverse engineer, decompile or alter the System or any Module, or any part of them, in any way.

4.6 Where a System User is a Brand Owner, the System User acknowledges and agrees that:

(a) it is responsible for ensuring that it is and remains, and that all Invited Systems Users that are Brand Owners are and remain, members of GS1 at all times during the Term and must obtain and maintain, and comply (and ensure, to the extent necessary that Invited System Users comply) at all times with the rules associated with, that membership;

(b) it or its Invited System Users are responsible for the cost of printing, engraving or applying GS1 barcodes and accurately and properly affixing them to its relevant products and/or packaging and recording them on the System;

(c) it or its Invited System Users are responsible for the cost of printing, engraving or applying any marketing messages on packaging or sales material to advice Shping smartphone application users that Shping smartphone application can be used in relation to a specific product; and

(d) if any Module or data is provided by a third party, then if the System User wishes for that Module to become a Selected Module and to use that Selected Module or that data, the System User will, if required by the third party, be required to agree to be bound by that third party’s terms and conditions relating to the access to and use of that Module or data.

4.7 The System User will indemnify Shping and keep it indemnified from and against all loss, costs and expenses (including as a result of any claim by any third party) arising directly or indirectly from a breach of clauses 4.5 and 4.6 by the System User and Invited System Users and the System User agrees to assist Shping with any investigations or enquiries conducted by Shping in relation to that clause and to satisfy itself that it is being complied with by the System User and any Invited System User.

4.8 The System User acknowledges that Shping is not and cannot bear any responsibility for any third party content provided by users including any reviews by users of the Services on any Shping smartphone application. If any content or reviews are untrue, Shping may investigate, but it is not obliged to do so, and it will not remove any content or reviews unless it is proven to the reasonable satisfaction of Shping that they are not true and it is responsibility of the party raising any dispute to satisfy Shping in this regard before Shping will take any action.

4.9 If the System User requests a user of the Shping smartphone application to perform any action, such as take photo of their product, Shping bears no liability in the event that such action causes any Consequential Loss to the user or any third party.

4.10 If the System User has applied for or obtained a GS1 barcode in such way that the same Company Prefix is shared with a third party legal entity, you agree to immediately notify Shping so that Shping may obtain the relevant Company Prefix limit the account to specific barcodes used by the System User.

5.Shping’s Obligations

5.1 Shping will provide reasonable assistance to the System User and any Invited System Users in connection with clauses 4.5(b) to (f).

5.2 Shping will provide the Services in accordance with this Agreement, the Service Level Agreement and the Documentation. In the event of any conflict or inconsistency, such documents shall be interpreted in the following order of priority:

(a) the Documentation;

(b) the Service Level Agreement; and

5.3 In providing the Services, Shping will:

(a) use reasonable care, skill and diligence; and

(b) ensure that the Services are provided by appropriately qualified, trained, competent and licensed (where relevant) personnel.

6.Warranties

6.1 Each party warrants to the other that:

(a) it has the capacity and authority to enter into and perform this Agreement; and

(b) it will not be in breach of any agreement or arrangement to which it is a party or to which it is subject because of its execution of this Agreement or its performance under it.

6.2 The System User warrants to Shping that it has the right to enter the information or material on the System, and to permit or authorise the Invited System Users to enter such information or material on the System, without infringing the rights (including Intellectual Property Rights) of any person or contravening any applicable law, and that all such material is at all time accurate, complete and up to date.

6.3 Shping warrants to the System User that:

(a) it has the right to operate the System during the Term;

(b) it has the right to grant the licences and rights under this Agreement to the System User during the Term; and

(c) the System, when operated in accordance with the Documentation, will comply in all material respects with the Documentation.

6.4 The System User acknowledges that:

(a) the System, the operation of the System, and access to the System will not be uninterrupted or error-free;

(b) the performance of the System (including response times) will depend on factors outside the parties’ control including the state of the relevant telecommunications networks and their interconnections and network congestion;

(c) the functionality, reliability and performance of certain Modules of the System are reliant on the operation of certain third party systems which are outside of the control of Shping;

(d) although Shping will implement reasonable security procedures, it cannot warrant that unauthorised access to the System, or to information and data cannot occur;

(e) the System User has relied on its own independent assessment and judgment in determining whether the System meets its requirements (including technical and business requirements).

6.5 The System User shall not make any Claim against Shping, and releases Shping from any Claim, and indemnifies Shping against any Claim by any Invited System User (unless that Invited System User has entered into a separate agreement with Shping in accordance with clause in 14.1(b) relation to any of the matters set out in clause 6.4

7.Fees

7.1 The System User must pay Fees to Shping and the payment processes and terms as set out in this clause 7 and the schedule of fees for the Module provided to the System User separately by Shping in the Service Offering Document and which the System User has acknowledged receiving.

7.2 All invoices for all amounts payable under this Agreement by the System User shall be sent to the System’s user email address, available for download by the System User from Shping’s website or can be requested from Shping directly.

7.4 After the free trial expires if the System User does not start commence the contract they acknowledge their access to the Services and the Shping Modules access will be limited to that of a basic Shping Marketing user and any information they have previously entered or provided as a System User may be lost.

7.5 Any other amounts payable to Shping will be invoiced by Shping from time to time during the Term (no more often than monthly). The System User agrees to pay Shping any amount set out in such invoices within 7 days of the date of the Invoices.

7.6 Shping may vary the Fees with effect by notice in writing to the System User (Fee Variation) which Fee Variation will take effect from the end of the Term for any subsequent term... If the System User is on a month to month contact, then Shping may vary the Fees on thirty days’ notice to the System User.

7.7 In the event that the System User upgrades or changes its Module, the Fees may also be varied.

7.8 The Fees are exclusive of all Taxes. Any Taxes arising in connection with this Agreement and will be payable by the System User. In particular, and without limitation, all amounts payable by the System User to Shping for a supply made under or in connection with this Agreement have been calculated without including an amount for GST.

7.9 If GST or any other Tax is payable, the System User must pay an additional amount equal to the GST or other Tax on the supply or component of the supply, made or deemed to be made, at the same time and in the same manner as making payment of any consideration on which the GST or Tax is calculated. If the GST or Tax is not calculated on monetary consideration, the System User must pay the GST or Tax within 7 days of receiving Shping's invoice.

7.10 Shping will provide to the System User a valid tax invoice in respect of a taxable supply.

7.11 If either party is required to reimburse to the other any cost, expense or other amount that the other party has incurred in connection with this Agreement, the amount to be reimbursed will be reduced by any part of that amount which is recoverable by the other party by way of an input tax credit.

7.12 If at any time an adjustment is made or required to be made between Shping and the relevant taxing authority on account of any amount paid as GST or other Tax as a consequence of any supply made or deemed to be made or other matter or thing under or in connection with this Agreement, a corresponding adjustment must be made as between Shping and the System User and any payment necessary to give effect to the adjustment must also be made.

7.13 If the System User fails to pay any invoiced amount by the due date for payment, then without prejudice to Shping’s rights under this Agreement or otherwise:

(a) interest is also payable on the outstanding amount at 2% above the rate then prescribed pursuant to s.2 of the Penalty Interest Rates Act 1983 (Vic) (which the System User must pay at the same time as the outstanding amount); and

(b) by written notice to the System User, Shping may suspend the provision of any Services and/or the System User’s (and any authorised users) access to the System and any Module until the outstanding invoice and interest is paid in full.

7.14 In addition, the System User will also pay any dishonour fee or other expense incurred by Shping as a result of any breach of this Agreement by the System User.

8.Intellectual Property

8.1 All Intellectual Property Rights relating to, or developed in connection with, the System and the Documentation are and shall remain the property of Shping. The System User shall at Shping’s reasonable expense enter into such agreements with Shping and shall execute such documents and carry out such actions as may be necessary to protect such rights of Shping.

8.2 All Intellectual Property Rights relating to data, information and materials contained in the database forming part of or used in conjunction with the System, are and shall remain the property of the System User or Invited System Users that entered such information. In so far as the System User or Invited System Users have entered any data, information or materials in the database, the System User grants (and will ensure that its Invited System Users also grant) Shping a perpetual royalty free licence to access and use, and make such materials available to users, using the System solely for the purpose and in the context of the System User’s use of the System in accordance with this Agreement.

8.3 Ownership of any data, information and materials entered into the database forming part of or used in conjunction with the System by end users of the System or the Downloadable Application will be governed by the terms of an end user licence agreement with such end users, under which the end users will own any data they enter about themselves, which they will license for use or with the System, and for product development and statistical purposes. To avoid any doubt, Shping may remove or delete, or block any data, information and material entered into the database by any person for any reason, including if it considers that data, information and materials to be unlawful, misleading, in contravention of any law or in breach of any rights, or otherwise detrimental to the System or Shping or their respective reputations.

9.Liability

9.1 Subject to clauses 9.2 and 9.3 and to the full extent permitted by law:

(a) neither party nor the Invited System Users nor the Representatives of either party will be liable to the other party or any person claiming through them (including in relation to the Brand Owner, any authorised users of the Brand Owner), in respect of any Claim for any Consequential Losses; and

(b) the cumulative liability of Shping and its Representatives to the System User and any Invited System Users in relation to all Claims made under or in connection with this Agreement, will not exceed in the aggregate an amount equal to the annual average Fees paid to Shping under this Agreement.

9.2 The System User will indemnify Shping and its Representatives and keep each of them indemnified from and against any Claims by any third party for or in respect of Consequential Loss, and for any amount in excess of the amount referred to in clause 9.1(b).

9.3 Nothing in this Agreement operates to exclude or limit a party's liability to the other:

(a) for death or personal injury; or

(b) for damage to tangible property; or

(d) User, fraud or wilful default by any Invited System User); or

(e) under any indemnity given in this Agreement.

9.4 To the full extent permitted by law, each party excludes all representations, warranties, terms and conditions, whether express or implied (and including those implied by statute, custom, law or otherwise), except as expressly set out in this Agreement.

9.5 Shping’s and its Representatives’ total cumulative liability to the System User and any Invited System Users all of their Representatives for any loss or Claim arising out of or in connection with this Agreement or access to or use of the System by the System User or any Invited System Users or their Representatives (whether in contract, equity, negligence, tort or for breach of statute or otherwise) will be reduced by the extent, if any, to which the System User, Invited System User or Representative contributed to the loss or Claim.

9.6 Shping accepts the indemnities and the limitations and exclusions from liability in this clause 9 on its own behalf and as agent for its Representatives (who may enforce them with, or separately from Shping).

10.Confidential Information

10.1 Except as permitted or required by this Agreement, each party as a Recipient must not use or disclose to any other person any of the Owning Party’s Confidential Information.

10.2 Each party as a Recipient may disclose the Owning Party’s Confidential Information to the extent necessary:

(a) to comply with any applicable law or any regulatory authority; and

(b) to such of its employees, officers, professional or financial advisers or service providers whose duties reasonably require such disclosure, on condition that the party making such disclosure ensures that each person to whom such disclosure is made is informed of the confidentiality of the information and is under an obligation of confidentiality in respect of it.

10.3 Each party as a Recipient must take steps no less rigorous than those which its takes in respect of its own Confidential Information to prevent any unauthorised use or disclosure of, or unauthorised access, loss or damage to, the Confidential Information of the other party.

10.4 If the Recipient party is required to disclose the Owning Party's Confidential Information in accordance with clause 10.4 it must:

(a) give a notice to the Owing Party of the requirement as soon as is reasonably possible;

(b) take all steps necessary to allow the Owning Party to challenge or limit the requirement to disclose, using any available channel or in any forum (including a court of law);

(c) provide the Owning Party with all assistance and co-operation reasonably requested by the Owning Party to assist it to challenge or limit the requirement to disclose; and

(d) use its best endeavours to ensure that confidential treatment will be given to the Confidential Information by any person to whom it is required to be disclosed.

10.5 If a Recipient party becomes aware of a breach of this clause 10, including a breach of duty of its personnel with respect to the Owning Party's Confidential Information, it must:

(a) give a notice to the Owning Party as soon as it becomes aware of the breach; and

(b) at its own cost promptly provide the Owning Party with any information or assistance which it may reasonably request in order to minimise the loss or damage the Owning Party may suffer as a result of the breach.

10.6 Each party as a Recipient acknowledges that a breach by it of this clause 10 may cause the other party irreparable damage for which monetary damages would not be an adequate remedy. Accordingly, in addition to other remedies that may be available, the other party may seek and obtain injunctive relief against such a breach or threatened breach. Each party will indemnify the other party and keep the other party indemnified from and against any loss arising as the consequence of a breach by the indemnifying party (and in the case of the System User, a breach of confidentiality by its Representatives and other authorised users), of this clause 10.

10.7 The parties’ rights and obligations under this clause 10 survive termination of this Agreement for any reason.

11.Privacy

11.1 Each party must:

(a) only process, use or disclose Personal Information collected in the course of this Agreement as required for the purpose of fulfilling its specific functions, activities and obligations under this Agreement;

(b) in the course of fulfilling its obligations under this Agreement, comply with applicable Privacy Legislation;

i. except as provided in clause 11.1(a) above or as required by law, not disclose or use without the written permission of the other party any Personal Information obtained in connection with this Agreement;

ii. take all reasonable steps to prevent the misuse, loss or unauthorised use, modification, access or disclosure, of Personal Information;

iii. ensure that only employees or agents of the party who are authorised to fulfil the obligations of this Agreement and who need to have access to any Personal Information have access to the particular Personal Information;

iv. upon completion of its obligations under this Agreement, return to the other party, all copies of the Personal Information or any record of the Personal Information, to the extent that such Personal Information comprises Confidential Information of the other party; and

v. notify the other party immediately if at any time it has breached, believes it may have breached, or is aware that it is alleged to have breached, its privacy and security obligations under this Agreement and at law, or becomes aware that a disclosure of Personal Information may be required by law.

11.2 The parties’ rights and obligations under this clause 11 survive termination of this Agreement for any reason.

11.3 Each party acknowledges that a breach by it of this clause 11 may cause the other party irreparable damage for which monetary damages would not be an adequate remedy. Accordingly, in addition to other remedies that may be available, the other party may seek and obtain injunctive relief against such a breach or threatened breach. Each party will indemnify the other party and keep the other party indemnified from and against any loss arising as the consequence of a breach by the indemnifying party (and in the case of the System User, a breach of confidentiality by its Representatives and other authorised users), of this clause 11.

12.Term

12.1 The term of this Agreement:

(a) if a term is selected in the Service Offering Document, commences on the Effective Date and will continue for the period selected in the Service Offering Document otherwise the term is for a period of 12-months, unless terminated earlier in accordance with this Agreement; and

(b) will automatically be extended for subsequent 1-month extension periods following the expiry of the initial term referred to in clause 12.1(a) or following the expiry of any extension period under this clause 12 unless either party provides written notice to the other party that it wishes to terminate this Agreement, such notice to be provided at least 30 days prior to the expiry of the applicable Term.

13.Termination

13.1 Either party may terminate this Agreement without cause at any time after the end of the initial term set out in clause 12.1(b) by giving the other party at least 1-months’ written notice thereof or via the System User’s account portal.

13.2 Either party may terminate this Agreement by written notice to the other party with immediate effect (or with effect from such later date as it notifies the other party) if:

(a) the other party commits a material breach of this Agreement and such breach is not remediable or where such material breach is remediable, the other party fails to remedy the breach within 30 days of receiving written notice to do so; or

(b) the other party suffers an Insolvency Event.

13.3 Shping may suspend or limit the System User’s and its Invited System Users’ access to the System (and for the avoidance of doubt, any end-user or System Users customer's access to the verification service provided by the System), if:

(a) In accordance with any provision of this Agreement that specifically entitles Shping to do so;

(b) the System User commits a material breach of this Agreement; or

(c) any action or inaction of an Invited System User that, it performed or not performed (as the case may be) by the System User, would amount to a material breach of this Agreement by the System User.

13.4 Upon termination or expiry of this Agreement, each party must either destroy or return to the other all Confidential Information of the other party then in the possession, custody or control of the other party and, in the case of destruction, certify to the other party that it has done so.

14.Licence and Trademarks

14.1 Shping grants to the System User a personal, non-exclusive, non-transferable licence during the Term:

(a) to access and use the System and the Module in accordance with the Documentation for their respective Specified Purposes; and

(b) subject to clause 4.3(b), to permit Invited System Users to access and use the System and the Module in accordance with the Documentation for their respective Specified Purposes within the any limitations imposed on that Invited System User by reason of its Invited System User Capacity and otherwise in accordance with the terms of this Agreement.

14.2 The System User acknowledges and agrees that Shping may impose limitations on the access and use rights of the System User and of Invited System Users provided access to the System and the Module under clause 4.4(b) or 14.1(b), depending on the User Capacity of the System User or the Invited System Users (as applicable).

16.Notices

16.1 A notice or other communication given under this Agreement must be in writing and:

(a) hand delivered;

(b) sent by post, postage prepaid;

(d) sent by email.

16.2 For the purposes of this clause, the address, facsimile and email details of each party are those that have been provided to the other in communications between them.

16.3 A notice or communication is regarded as given if:

(a) hand delivered:

(b) by 5.00 pm AEST on a Business Day, on the date of delivery to the party's address as subsequently notified in writing to each party.

(c) after 5.00 pm AEST on a Business Day, on the next Business Day following the day of delivery to the party's address subsequently notified in writing to each party.

(d) mailed in Australia to an address in Australia, two (2) Business Days after posting;

(e) airmailed in Australia to an address outside of Australia, seven (7) Business Days after posting;

(f) airmailed outside Australia to an address in Australia, seven (7) Business Days after posting;

(h) sent by email, upon the transmitted email entering the system of the receiving party.

17.Dispute Resolution

17.1 A party claiming that a difference, dispute or question has arisen concerning this Agreement (including any question regarding its existence, validity or termination), must give written notice to the other party specifying the nature of the difference, dispute or question.

17.2 On receipt of a notice under clause 17.1 the parties must endeavour in good faith to expeditiously resolve the difference or dispute, or to expeditiously answer the question contemplated by clause 17.1 which has arisen between the parties.

17.3 If the parties do not agree within thirty (30) days of receipt of the notice under clause 17.1 (or such further period as agreed upon in writing by them) the difference, dispute or question shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by a sole arbitrator appointed in accordance with the said Rules. The seat, or legal place, of the arbitration shall be Melbourne, Victoria. The language to be used in the arbitral proceedings shall be English.

17.4 Nothing in this clause 16 shall prevent either party from having recourse to a court or tribunal of competent jurisdiction for the sole purpose of seeking a preliminary injunction or such other provisional relief as it considers necessary to avoid irreparable damage.

17.5 In calculating the limitation period for any claim that is ultimately pursued through arbitration, the period between the date of the notice in clause 16.1 and the date on which the parties are free to resort to arbitration shall be excluded.

18.Assignment and Novation

18.1 Either party may assign the benefits of the whole or any part of this Agreement without the consent of the other party, including to a purchaser in the event of sale of the whole or part of their respected businesses, subject to the new party being able to fully comply with the terms of this agreement.

19.Special Conditions

19.1 Any special conditions set out in the Service Offering Documents binds the parties and if inconsistent with any other provisions of Agreement, override them.

20.Definitions

20.1 In this Agreement, unless the context requires another meaning:

Agreement means this agreement including all attached Schedules;

AML means Anti Money Laundering and refers to a set of procedures, laws, and regulations designed to stop the practice of generating income through illegal actions;

Brand Owner means an organization or company that is the registrant of a trademark or owns the intellectual property rights to a brand for a particular good or service;

Business Day means a day that is not a Saturday, Sunday, a public holiday or bank holiday in Victoria, Australia;

Claim means any claim, notice, demand, action, proceeding, litigation, investigation or judgment whether based in contract, tort (including negligence), statute or otherwise;

CA means a certification authority;

Company Prefix means the unique identifier generated and provided to a party such as the System User (in the User Capacity of a Brand Owner) to identify that party as the owner or originator of a product or range of products. The Company Prefix is allocated to the party by GS1, and forms a part of GTINs associated with that party;

Confidential Information of a party (the Owning Party) means all data, details, plans, designs, computer software, figures, financials, costings, developments, results, technical advice, trade secrets, samples, specifications, statements, forms, processes, formulae, know-how, ideas, drawings, concepts, technology, manufacturing processes, Intellectual Property Rights, contracts, documents, agreements, commercial knowledge and other proprietary information of or relating to business, operations or affairs of the Owning Party or its Related Corporations (collectively Information) in whatever form and however stored that is learned by or irrespective of how it is learned by or in the possession of the other party (the Recipient):

(a) including Information relating to or which is developed in connection with or in support of: the System or the Services (which the parties acknowledge and agree is Shping’s Confidential Information); and

(b) the organisation, finances, suppliers, customers, markets, products, services, licensors, licensees, and contacts of the business of the Owning Party or its Related Corporations; and

(d) that is not in the public domain (except as a result of a failure to comply with an obligation to maintain confidentiality);

Consequential Loss means:

(a) loss or damage that does not naturally or directly result in the ordinary course of events from the breach, action or inaction in question; and

(b) any consequential or indirect loss, loss of profit or anticipated profit, economic loss, loss of data, loss of use, damage or goodwill or loss of bargain, opportunity or anticipated saving;

Currency means Australian Dollars

Digital Currency means digital form of currency including cryptocurrencies.

Documentation means the integration plan referred to in Schedule 2, and the documentation concerning the System and its operation and use, and ongoing support, as issued and amended from time to time by Shping;

Downloadable Application means those Software applications that are developed and published to Apple Itunes, Google Play and other smartphone application stores by Shping and downloadable by end users and usable on portable computing devices such as smartphones, handheld computing devices and tablet computers;

Effective Date means the date of execution of this Agreement or the date the parties to this Agreement agree is the commencement or effective date of this Agreement;

Fees means the schedule of fees provided by Shping to the System User;

Force Majeure means any event outside the reasonable control of a party, including fires or other casualties or accidents, acts of God, severe weather conditions, war or other violence, or any law, order, proclamation, regulation, ordinance common demand, or requirement of any governmental agency;

GS1 means GS1 International or its relevant participating Member Organisations as the case may be);

GST means a consumption tax, which in Australia is imposed under the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and in any other jurisdiction means a tax of a similar nature;

GTIN means a Global Trade Item Number that complies with the GTIN Allocation Rules as published from time to time by GS1. A GTIN is allocated to a product by GS1. A GTIN can form a part of an SGTIN;

Insolvency Event means in relation to:

(a) a corporation, the appointment of an administrator or controller or receiver or provisional liquidator or liquidator over the relevant company, the directors of the relevant company resolving that the corporation be wound up, the making of an order of a court that the corporation be wound up of the company being deregistered for any reason other than a bona fide corporate restructure or anything analogous to or having a similar effect under the law of any relevant jurisdiction; and

(b) an individual, the appointment of a trustee or controlling trustee over the affairs of the person, or the person being an insolvent under administration or anything analogous to or having a similar effect under the law of any relevant jurisdiction;

Intellectual Property Rights means statutory and other proprietary rights in respect of trade marks, designs, patents, circuit layouts, copyright, confidential information, know-how, moral rights and all other rights with respect to intellectual property as defined in Article 2 of the Convention Establishing the World Intellectual Property Organisation of July 1967;

Invited System Users means any person or entity that the System User requires to have access to the System and the Module in connection with the project;

KYC means Know Your Customer (alternatively know your client) is the process of a business verifying the identity of its clients and assessing potential risks of illegal intentions for the business relationship. The term is also used to refer to the bank regulations and anti-money laundering regulations which govern these activities. Know your customer processes are also employed by companies of all sizes for the purpose of ensuring their proposed agents, consultants, or distributors are anti-bribery compliant and banks, insurers and export creditors are increasingly demanding that customers provide detailed anti-corruption due diligence information;

Module means a module of the Software or System possessing certain functionality or capabilities using the System (either alone or in conjunction with other Modules). As at the date of this Agreement the Modules available and the functionality available using each of the Modules, and the Specified Purposes applicable to the respective Modules, are as set out in Schedule 3;

Personal Information has the meaning given to that term in the Australian Privacy Act 1988;

Privacy Legislation means laws in respect of the protection of the privacy of individuals and Personal Information, including the Australian Privacy Act 1988;

Product means any genuine item made available for sale by or on behalf of the System User or any Invited System Owner having the User Capacity of Brand Owner, bearing any brand of such Brand Owner or its licensor, and in respect of which the System may be used;

Project means the specific project or purpose for which the System Users desires to use and access the System and the Module has been agreed between the parties in writing;

Related Corporation of a party means a “related body corporate” of that party (as that term is defined in section 50 of the Australian Corporations Act 2001);

Representative means, in respect of a party, any person acting for or on behalf of the party and includes any director, officer, employee, agent, professional adviser, contractor or sub-contractor of the party (and includes, with respect to Shping, any parties engaged by Shping to resell access to the System or provide the Services, and any person appointed by Shping to refer potential users of the Service to Shping (whether or not for reward)), and includes with respect to the System User, any licensee of the System User). However, Shping and the System User or any Invited System Users are not to be taken to be Representatives of one another. To clarify, as between the parties, any Invited System User that enters into a direct relationship with Shping pursuant to clause 4.3(b) will be taken to be a Representative of the System User and not of Shping;

Module means the marketing module better described in the schedule (and as may be varied from time to time pursuant to clause 3).

Service Level Agreement means any service level agreement made or offered by Shping applying to the System, the Module and the Services. Shping shall publish its Service Level on its website and reserves the right to alter or amend such agreement from time to time as it considers reasonably necessary;

Services means the services listed in Schedule 2;

Service Offering Documentation means the documentation that is incorporated into these Terms of Use and sets out the Fees and other information agreed to by the System User.

Specified Purpose means the purpose of the System User and Invited System Users uploading data concerning its Products or Raw Materials on to, and accessing, the System for the System User’s internal business purposes, and for the purposes of the Project;

System means the software system comprising the Modules as described in Schedule 2.

System User means the party to this Agreement other than Shping the details of which have been provided to Shping and is the person or entity that has applied for and has been granted access to use the System and the Module for the performance of this Agreement and has accepted the terms and conditions of this Agreement and has certain permissions granted which are based on user capacity and authorisation.

Taxes means any government taxes, levies, charges, duties or withholdings (including GST) which are assessed, levied, imposed or collected by any government body in any jurisdiction and includes, but is not limited to, any interest penalties, fines, charges, fees or other amounts imposed on, or in respect of any of these.

Term means the initial term set out in clause 12 as well as any extension periods made in accordance with clause 12.

Trade Marks means the trademarks of Shping as set out in Schedule 4 (as modified from time to time) and any registered trademarks of the System User, and such further or other trademarks and logos as parties may notify each other from time to time.

User Capacity means the capacity in which the System User or any Invited System User is permitted to access the System and the Module and is further described in Schedule 4.

21.Interpretation

21.1 In this Agreement, unless the context requires another meaning, a reference to:

(a) a singular includes the plural and vice versa and reference to a gender includes other genders;

(b) a clause, schedule or annexure is a reference to a clause, schedule or annexure of this Agreement;

(c) a notice means a notice, approval, demand, request, nomination or other communication given by one party to another under or in connection with this Agreement;

(d) a person (including a party) includes:

i. an individual, company, other body corporate, association, partnership, firm, joint venture, trust or government agency; and

ii. the person's successors, permitted assigns, substitutes, executors and administrators;

(e) a law includes any legislation, judgment, rule of common law or equity or rule of any applicable stock exchange, and is a reference to that law as amended, consolidated, supplemented or replaced and includes a reference to any regulation, by-law or other subordinate legislation;

(f) a month means a calendar month;

(g) money (including a reference to dollars and expressions preceded by the symbol "$") is a reference to Australian currency; and

(h) the words "including" or "includes" means "including, but not limited to", or "includes, without limitation" respectively.

21.2 This Agreement may not be construed adversely to a party only because that party was responsible for preparing it.

21.3 Headings and any table of contents are used for reference only and do not affect the construction or any provision of this Agreement.

21.4 If there is any inconsistency between the provisions of this Agreement and the provisions of an order (or other document agreed in connection with this Agreement), the provisions of this Agreement prevail to the extent of any inconsistency.

21.5 This Agreement binds and benefits each party and their respective successors, assigns and legal personal representatives.

22.General Provisions

22.1 Neither party will be liable for any delay or failure to perform any of its obligations under this Agreement if such delay or failure is due to Force Majeure, provided such party immediately notifies the other of the Force Majeure arising.

22.2 This Agreement is the entire agreement of the parties in relation to its subject matter and supersedes all other representations, negotiations, arrangements, communications, understandings or agreements.

22.3 The relationship of the parties will be that of independent contractors. Nothing in this Agreement creates or will create, or be deemed to create, a partnership or the relationship of principal and agent, joint venturers, or employer and employee.

22.4 Each party must, at its own expense, whenever reasonably requested by the other party, promptly do or arrange for others to do, everything reasonably necessary or desirable to give full effect to this Agreement.

22.5 If this Agreement is terminated or expires:

(a) the parties are released from the obligation to continue to perform the Agreement, except those obligations that expressly or by their nature, survive termination or expiry; and

(b) each party retains the rights and claims it has against the other party for any past breach of the Agreement.

22.6 If a provision of this Agreement is invalid or unenforceable in a jurisdiction:

(a) that provision is to be read down or severed in that jurisdiction to the extent of the invalidity or unenforceability; and

(b) that fact does not affect the validity or enforceability of that provision in any other jurisdiction or the remaining provisions.

22.7 A waiver by a party of a provision of or of a right under this Agreement is binding on the party granting the waiver only if it is given in writing and is signed by the party granting the waiver. Failure by a party to exercise or delay in exercising a right does not prevent its exercise or operate as a waiver.

22.8 Shping may amend this Agreement by notice to the System User whereupon it will immediately be binding upon both parties. This Agreement may be amended by the System User only by a document signed by both parties.

22.9 The rights, remedies and powers of the parties under this Agreement are cumulative and do not exclude any other rights, remedies or powers.

22.10 The construction, validity and performance of this Agreement, and all non-contractual obligations (if any) arising from or connected with this Agreement, shall be governed by the laws of Victoria, Australia.