General Terms of Business

1.1 In these Terms, the following definitions will apply:

Agreement means the agreement between Tes Aus and the Customer formed in accordance with clause 2.1 of these Terms.

Authorised User(s) shall mean any person authorised by the Customer to use the Products or Services.

Customer means the entity identified as the customer in the Schedule (if applicable) or on an invoice.

Customer Data means the data inputted by the Customer or its Authorized Users, or Tes Aus on the Customer's behalf, for the purpose of using the Products and/or Services or facilitating the Customer's use of the Products and/or Services, excluding (to the extent applicable) any data provided in response to surveys, as well as any data summaries and aggregated data sets issued by or on behalf of Tes Aus from time to time.

Fees shall mean the fees for the Products and/or Services as set out in the Schedule or otherwise notified in writing by Tes Aus.

Initial Subscription Term means the initial period for which the Customer may use the Products and/or Services, as set out in the Schedule (if applicable).

Intellectual Property Rights means patents, rights to inventions, copyright (including future copyright) and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Output means any output of the Products and/or Services, including (where applicable) responses provided by participants to surveys, as well as data summaries and aggregated data sets.

Personal Information has the meaning given to that term in the Privacy Act 1988 (Cth).

Privacy Laws means the Privacy Act 1988 (Cth) and all other applicable privacy or data protection laws which apply to Tes Aus, the Customer and/or Customer Data.

Product means the digital software products owned by or licensed to Tes Aus, including any product specified in the Schedule, which Tes Aus provides to the Customer in accordance with the Agreement.

Renewal Period has the meaning given to it in clause 13.1 of these Terms.

Schedule means a schedule setting of additional terms relating to the use of Products or Services.

Services means the services which Tes Aus provides to the Customer in accordance with the Agreement, including any services specified in the Schedule.

Subscription Term means the Initial Subscription Term plus each Renewal Period.

1.2 References in these Terms to: (i) we, us or our is a reference to Tes Aus; and (ii) your is a reference to the Customer.

1.3 In the interpretation of the Agreement, the following provisions apply unless the context otherwise requires: (i) a reference to 'dollars' or '$' means Australian dollars and all amounts payable under the Agreement are payable in Australian dollars; (ii) where a word or phrase is given a defined meaning another part of speech or other grammatical form in respect of that word or phrase has a corresponding meaning; (iii) a word which indicates the singular also indicates the plural, a word which indicates the plural also indicates the singular, and a reference to any gender also indicates the other genders; (iv) a reference to the word 'include' or 'including' is to be interpreted without limitation; (v) a reference to any document or agreement is to that document or agreement as amended, novated, supplemented or replaced; (vi) headings are inserted for convenience only and do not affect the interpretation of the Agreement; and (vii) a reference to any law or legislation or legislative provision includes any statutory modification, amendment or re-enactment, and any subordinate legislation or regulations issued under that legislation or legislative provision, in either case whether before, on or after the date of the Agreement.

2.1 A binding Agreement is formed between Tes Aus and the Customer upon the earlier of: (i) the time you first place an order for a Service or Product by executing a Schedule (if applicable); or (ii) when you first begin to use any Product or Services. 

2.2 The Agreement consists of: (i) these Terms; (ii) the Schedule (if applicable); and (iii) any other documents or terms which Tes Aus identifies in writing as forming part of the Agreement.  In the event of any conflict between any of these documents, the document listed higher in this clause will take precedence to the extent of the inconsistency. 

2.3 Where a Schedule applies to a Product or Service, Tes Aus is not obliged to provide access to such Product or perform such Service unless and until the Schedule is executed on behalf of both parties.

3.1 The Intellectual Property Rights in the Products, the Services, any Outputs and any related documentation will, at all times remain, with Tes Aus (or its licensors, as the case may be).  The Customer will assign to Tes Aus from the date of first creation all Intellectual Property Rights in any Products, Services, Outputs or related documentation which is created by it.

3.2 If the Customer becomes aware of any potential or actual infringement of any of Tes Aus’ Intellectual Property Rights, it must immediately notify Tes Aus of that in writing, providing full details of the relevant facts.

3.3 The Customer must provide all such assistance in relation to enforcement and defence of Tes Aus’ Intellectual Property Rights as shall reasonably be required by Tes Aus and Tes Aus will pay any reasonable and substantiated third party expenses incurred by the Customer in giving such assistance, provided that they have been notified to [and approved by] Tes Aus in advance.

3.4 The Customer must ensure that up-to-date industry standard technical measures and safeguards are in place at all times to prevent unauthorised access to or use of the Product(s) and, in the event of any such unauthorised access or use, promptly notify Tes Aus.  

3.5 The Customer agrees not to do anything which may bring Tes Aus, or the Products or Services, into disrepute.

3.6 The Customer must take all appropriate measures (in consultation with Tes Aus, where appropriate) to safeguard Tes Aus’ Intellectual Property Rights.

4.1 Tes Aus grants a licence to the Customer for its Authorised Users to use the Products purchased and any related documentation on a worldwide, non-exclusive, non-transferable basis, without the right to grant sublicences, during the Subscription Term solely for the Customer's internal business operations. 

4.2 The Customer will not (and will procure that the Authorised Users will not) use the Products to access, store, distribute or transmit any viruses, or allow any denial of service attacks, and Tes Aus reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause 4.2.

4.3 The Customer will not (and will procure that the Authorised Users will not), except as may be allowed by any applicable law: (i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of a Product and/or documentation in any form or media or by any means; (ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of a Product; (iii) access all or any part of a Product or the documentation in order to build a product or service which competes with the Product; or (iv) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Products and/or documentation available to any third party except the Users.

4.4 Without limiting any other clause of these Terms, the Customer must ensure that the Authorised Users use the Products in accordance with the Agreement and will be responsible for any Authorised User's breach of the Agreement.

4.5 The Customer must ensure that each Authorised User maintains a secure password for their use of the Products and/or Services and keeps their password confidential.

4.6 The Customer understands that Tes Aus will provide all Products and/ or Services remotely, unless otherwise agreed.

4.7 The Customer acknowledges that it is solely responsible for procuring and maintaining the network connections required to access and use the Products, including the internet connection, and for the resolution of all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to its network connections or telecommunications links or caused by the internet.

5.1 Tes Aus will, during the Subscription Term, use its best endeavours to provide the Services to the Customer in a timely manner, with due care and skill, and in accordance with the Schedule. The parties agree that any timeframe specified in the Agreement is an estimate only and Tes Aus will not be liable for any failure or delay in completing the Services in accordance with the specified timeframe.

5.2 The Customer understands that Tes Aus will provide all Services remotely, unless agreed otherwise in connection with a Schedule.

5.3 The Customer agrees to comply with any Customer obligations set out in the Schedule.  

6.1 The Products and/or Services will be provided substantially in accordance with the Schedule and any applicable documentation, except to the extent of any non-conformance which is caused by use of a Product contrary to Tes Aus’ instructions, or modification or alteration of the Products by any party other than Tes Aus (or persons duly authorised by Tes Aus). 

6.2 If a Product or Service does not comply with the requirements in clause 6.1, Tes Aus will, at its expense, use reasonable endeavours to correct any such non-conformance promptly. Such correction constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 6.1.

6.3 Notwithstanding the foregoing and subject to the Mandatory Guarantees, Tes Aus: (i) does not warrant that the Customer’s use of the Products will be uninterrupted or error-free; (ii) that the Services, Products, documentation and/or Customer Data obtained by the Customer through the Products and/or Services will meet the Customer’s requirements; and is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer agrees that the Products may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

7.1 In consideration of the rights granted under the Agreement, the Customer agrees to pay Tes Aus the Fees in accordance with the payment terms set out in this clause.

7.2 Unless otherwise specified in the relevant Schedule, invoices for Fees must be paid in full within 7 days of the invoice date.

7.3 Unless expressly stated otherwise, all amounts and fees stated or referred to in the Agreement: (i) will be payable in Australian Dollars; and (ii) are exclusive of goods and services tax, which will be added to Tes Aus’ invoices at the appropriate rate.

7.4 In this clause 7.4, the expressions consideration, GST, input tax credit, recipient, supplier, supply, and tax invoice have the same meaning given by the GST Law. GST Law has the same meaning given to that term in A New Tax System (Goods and Services Tax) Act 1999.  If GST is payable on any supply made under the Agreement by a party to another party the recipient must, subject to the remainder of this clause 7.4, pay to the supplier, in addition to and at the same time as the consideration is payable or to be provided for the supply, an additional amount calculated by multiplying the value of that consideration by the prevailing GST rate. The supplier must issue a valid tax invoice to the recipient before any payment for a supply made by the supplier under the Agreement is due. Any reference to a cost or expense in the Agreement excludes any amount in respect of GST forming part of the relevant cost or expense when incurred by the relevant party for which that party is entitled to an input tax credit.

7.5 If Tes Aus has not received payment of any Fees within the period specified in clause 7.2 then, without prejudice to any other rights and remedies of Tes Aus: (i) Tes Aus may, without liability to the Customer, cease to provide any Services and/or disable the Customer's access to the Products and Tes Aus will be under no obligation to provide any or all of the Products and/or Services while the invoice(s) concerned remain unpaid; and (ii) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of Tes Aus’ principal bankers from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

7.6 Tes Aus may amend the Fees with effect from the first day of each contract year after the Initial Subscription Term with an increase in line with the Australian Consumer Price Index (weighted average of eight capital cities) (CPI) plus up to 3%. Tes Aus will use the most recent quarterly CPI figure published by the Australian Bureau of Statistics at the time of calculation. Tes Aus may further increase the Fees for a Renewal Period by providing 90 days’ notice of any such increases via email , subject to the Customer’s right to terminate the Agreement on 30 days’ notice prior to the commencement of a Renewal Period under clause 13.1.

7.7 The Customer must permit Tes Aus (or its designated auditor or representative) to audit the Customer’s books, records and facilities and use of the Products in order to assess the Customer’s compliance with the Agreement. Each such audit may be conducted no more than once per year, at Tes Aus’ expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer's normal operations.  If any audit conducted pursuant to this clause reveals that: (i) the Customer has underpaid Fees to Tes Aus, then without prejudice to Tes Aus’ other rights, the Customer shall pay Tes Aus an amount equal to such underpayment as calculated in accordance with the Agreement within 30 days of the date of the relevant audit; (ii) access to a Product has been provided to any individual who is not an Authorised User, then without prejudice to Tes Aus’ other rights, the Customer will promptly disable such access and Tes Aus will not issue any further access to any such individual; or (iii) the Customer has overpaid Fees to Tes Aus, then Tes Aus may credit the customer’s account with the amount of such overpayment.

7.8 All payments to be made under the Agreement shall be made in cleared funds, without deduction or set-off and free and clear of and without deduction for or on account of any taxes, levies, imports, duties, charges, fees and withholdings of any nature now or hereafter imposed by any governmental, fiscal or other authority save as required by law. If you are required by law to make any such deduction, you will pay to Tes Aus such additional amounts as are necessary to ensure receipt by Tes Aus of the full amount which Tes Aus would have received but for the deduction.

7.9 The Client agrees to reimburse Tes Aus for expenses (including travel and travel-related expenses) reasonably incurred in relation to delivery of the Services, if applicable, in accordance with the Schedule or as otherwise notified to the Client in writing.

8.1 Tes Aus will not be liable to the Customer (whether such liability arises in contract, tort (including negligence), for breach of statutory duty or otherwise) under or in connection with the Agreement for any loss of profits, loss of contracts, loss of anticipated savings, loss of revenue, loss of or damage to data, loss of or damage to reputation or goodwill or any indirect or consequential losses or damages.

8.2 Subject to clause 8.1, Tes Aus’ maximum liability to the Customer for any other loss or damage arising under or in connection with the Agreement is limited, in the aggregate, to a maximum of: (i) $500 for any Products and/or Services for which a non-recurring, per-transaction Fee applies; and/or (ii) for all other claims, a sum equal to 25% of the Fees paid by the Customer in the calendar year prior to the year in which the event giving rise to the claim occurred.

8.3 Nothing in these Terms will limit or exclude Tes Aus’ liability for: (i) fraud or fraudulent misrepresentation; (ii) personal injury or death of any person caused by Tes Aus’ negligence; or (iii) any liability which cannot be excluded or limited at law.

8.4 The Customer indemnifies and agrees to indemnify and hold Tes Aus harmless against all losses, costs and expenses (including all legal fees, damages and settlement payments) suffered or incurred by Tes Aus in relation to or in connection with: (i) any claims brought against Tes Aus by any third party (including in relation to infringement of any Intellectual Property Rights) arising as a result of the Customer’s use of the Products or Services or other act or omission by the Customer or its Authorised Users, including any advertisement placed on the Customer’s behalf and/or any material to which users can link from any website advertisement; (ii) any discriminatory practice, breach of any law or false or misleading advertising or sales practices arising from any advertisement placed on the Customer’s behalf and/or any material to which users can link from any website advertisement; and (iii) the Customer’s breach of clause 9.

8.5 To the extent permitted by law, and subject to any Mandatory Guarantees and any express provisions of these Terms: (i) Tes Aus provides no additional warranties, guarantees or conditions, including for merchantability, satisfactory quality, fitness for a particular purpose, title or non-infringement under these Terms, or that the Customer's use of the Products and/or Services will be uninterrupted or error-free; and (ii) the Customer assumes sole responsibility for use of the Products and/or Services and the results obtained from the use of the Products and/or Services and for any conclusions drawn from such use.  

8.6 If any warranty, guarantee, condition or term is implied or imposed by any applicable law and cannot be excluded (a Mandatory Guarantee), and Tes Aus is able to limit the Customer’s remedy for a breach of the Mandatory Guarantee, then Tes Aus’ liability for breach of the Mandatory Guarantee is limited exclusively (so far as applicable laws do not prohibit) to, at Tes Aus’ option: (i) in the case of goods: the replacement of the goods or supply of equivalent goods; the repair of the goods; or the payment of the costs of replacing the goods or of acquiring equivalent goods; or (ii) in the case of services, the supply of the services again or the payment of the cost of having the services supplied again.

9.1 You agree to comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption including the Bribery Act 2010. 

9.2 You must take reasonable steps to ensure that modern slavery (as such phrase is defined in the Modern Slavery Act 2018 (Cth) as amended from time to time or any equivalent provision in equivalent legislation in any other applicable jurisdiction) is not taking place in any of your supply chains or in any part of your organisation. 

9.3 Tes Aus is committed to acting in an ethical and non-discriminatory manner and shall not knowingly assist in any discriminatory recruitment practices. You agree to: (i) comply with all applicable laws, statutes, regulations and codes relating to the equal employment, including the Fair Work Act 2009, Age Discrimination Act 2004 (Cth), Disability Discrimination Act 1992 (Cth), Racial Discrimination Act 1975 (Cth) and Sex Discrimination Act 1984 (Cth); and (ii) act in accordance with Tes Global’s Fair Recruitment Policy from time to time, which can be found here.

10.1 For the purpose of this clause 10, Confidential Information means any information in whatever form which is disclosed by one party to the other in connection with the Agreement, other than information which: (i) is or becomes generally available to the public (other than as a result of its disclosure by a party or its personnel in breach of this clause); (ii) was available to a party on a non-confidential basis before disclosure by the other party; (iii) was, is or becomes available to a party on a non-confidential basis from a person who, to that party's knowledge, is not bound by any confidentiality agreement from disclosing it; (iv) the parties agree in writing is not confidential or may be disclosed; or (v) is intended for public display, such as job advertisements. Tes Aus’ Confidential Information includes details of the Products and/or Services, and the results of any performance tests of the Products and/or Services, the Schedule and the Fees. Tes Aus agrees that the Customer Data is the Confidential Information of the Customer.

10.2 Each party to the Agreement will treat in confidence all Confidential Information disclosed or made available to it by the other party and will not use any Confidential Information for a purpose other than for the exercise of its rights or the performance of its obligations under the Agreement or as otherwise required by law.

10.3 Either party may disclose the other party’s Confidential Information: (i) to its own personnel and professional advisors to the extent required for the proper performance of its obligations under the Agreement (provided that the relevant personnel are informed of the confidential nature of the information and are subject to appropriate confidentiality obligations which are no less onerous than those set out in this clause 10); (ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority; and (iii) in respect of job advertisements, to recruitment agencies working on its behalf, to the extent required in connection with the advertisement.

10.4 The parties acknowledge and agree that under no circumstances is either party permitted to disclose any Confidential Information to a third party, other than as set out in clause 10.3. 

10.5 A breach of this clause 10 will be a breach of the Agreement which is incapable of remedy.

11.1 As between Tes Aus and the Customer: (i) the Customer Data will remain at all times the property of the Customer; and (ii) the Customer is solely responsible for the legality, reliability, integrity, accuracy and quality of the Customer Data. 

11.2 Tes Aus agrees to take reasonable commercial efforts to protect Customer Data from unauthorised access, modification or disclosure, and from misuse, interference and loss.

11.3 The Customer acknowledges and agrees that: (i) Tes Aus uses third party service providers to provide hosting services in connection with the Products, which involves the processing and storage of Customer Data (including Personal Information). As part of the Services and/or Products, Customer Data may be hosted or otherwise accessed outside of Australia, including in the United Kingdom.

11.4 Tes' Data Processing Agreement applies to Products purchased. For more information, please refer to our Data Processing Agreement.

12.1 By entering into an Agreement with Tes Aus, the Customer acknowledges that it has read and understood the Tes Aus Privacy Policy which can be found on our website here.

12.2 In connection with any Personal Information which you disclose or otherwise make available to us in connection with the Agreement, you warrant that: (i) such Personal Information has been collected in accordance with the Privacy Laws; (ii) each person to whom the Personal Information relates has been made aware of the various matters of which the Customer is required to inform a person about whom it collects Personal Information under any applicable Privacy Laws; and (iii) Tes Aus is authorised, either by consent of the individual or by law, to collect, hold, use and disclose the Personal Information disclosed or otherwise made available to it for the purposes outlined in the Agreement.

12.3 If Tes Aus receives: (i) a request for access to or correction of any Personal Information; or (ii) a complaint from a person regarding such Personal Information, it will notify Customer as soon as possible and provide Customer all assistance as reasonably required for Customer (and Customer agrees) to deal with the request for access or correction, or a complaint in accordance with applicable Privacy Laws. 

12.4 If Tes Aus becomes aware that any Personal Information is subject to unauthorised access, misuse or loss whilst in Tes Aus’ possession or control, Tes Aus will promptly notify the Customer and, unless otherwise agreed by Tes Aus the Customer must: (i) prepare any notifications required under applicable Privacy Laws; (ii) seek Tes Aus’ consent to the content of the notifications, to the extent that the notification refers to Tes Aus in any way; and (iii) once any form of notifications is approved by Tes Aus, issue all required notifications in accordance with the requirements of the applicable Privacy Law (including any applicable time periods).

12.5 Tes Aus will not use any Personal Information contained in Customer Data except as necessary to provide the Products and/or Services or otherwise comply with its obligations under the Agreement.

13.1 The Agreement will commence on the date determined in accordance with clause 2 and will continue for the Initial Subscription Term, unless terminated earlier in accordance with its terms.  Thereafter, unless specified otherwise in a Schedule, the Agreement will be automatically renewed for a period of one year (each a Renewal Period), unless either party notifies the other party that it does not wish to continue the Agreement at least 30 days before the end of the Initial Subscription Term or any Renewal Period, as applicable, in which case the Agreement will terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period, as the case may be.

13.2 Without affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect by giving written notice to the other party if the other party: (i) has a liquidator appointed in any jurisdiction; (ii) ceases, or notifies that it is about to cease, carrying on business; (iii) fails, within 30 days after receipt of notice from the non-breaching party, to remedy any breach of its obligations under the agreement which is capable of remedy; or (iv) breaches any provision of the Agreement which is not capable of remedy. 

13.3 On expiration or termination of the Agreement for any reason: (i) all licences and subscriptions granted under the Agreement will immediately terminate and the Customer must immediately cease all use of the Products; (ii) Tes Aus will cease to provide all Services; (iii) Tes Aus may remove or take down any advertisements in place or published at that time; and (iv) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of expiry or termination, will not be affected.

13.4 At any time prior to expiration or termination of the Agreement the Customer may manually download Customer Data held by Tes Aus via the Products.  The Customer acknowledges that: (i) Tes Aus may permanently destroy or otherwise dispose of any Customer Data on expiration or termination of the Agreement; and (ii) Tes Aus is not liable to the Customer for any loss or deletion of Customer Data following expiration or termination of the Agreement. 
 

14.1 We may at our sole discretion remove certain Products/ Services and/or their features or add new features from time to time provided that this will not result in any material changes to the level of functionality or service which you were receiving immediately prior to the change. 

14.2 These Terms may be updated from time to time by us without notice to you. The updated Terms will be published on our website and we will indicate the date that the Terms were last updated. The continued use of our Products/Services following any amendment constitutes your acceptance of the amended Terms.

15.1 Dispute - The parties agree to use reasonable commercial efforts to resolve by negotiation any problem or dispute that arises between them under or in connection with the Agreement, in accordance with the following process: (i) the party to the Agreement which claims that a dispute has arisen under or in relation to the Agreement must give written notice to the other party specifying the nature of the dispute; (ii) within 10 days of receipt of this notice by the other party (or such other period agreed between the parties, acting reasonably), senior representatives of the parties must meet with a view to resolving the dispute; (iii) if the meeting referred to in clause 15.1(ii) does not take place or fails to resolve the dispute within 10 days of receipt of a dispute notice by the relevant party (or such other period agreed between the parties, acting reasonably) the parties agree to undertake mediation in accordance with the mediation rules of the Law Society of State of New South Wales. If the parties are unable to agree on a mediator within a further 7 days of the dispute being referred to mediation, the president of the Law Society of New South Wales or the president's nominee will select the mediator and determine the mediator's remuneration; (iv) if the mediation referred to above is not completed within four weeks of reference to a mediator then either party may commence any court or arbitration proceedings relating to the dispute as they see fit; and (v) the costs of the mediation will be borne equally by the parties. . Neither party will resort to legal proceedings until the process described in this clause 15.1 has been exhausted, except if it is necessary to seek an urgent interim determination.

15.2 Severability – if any provision (or part of a provision) of the Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, that provision will apply with whatever modification is necessary to make it valid, enforceable and legal.

15.3 Assignment – you will not, without our prior written consent, assign, transfer, charge, sub-contract or deal in any other way with all or any of your rights under the Agreement.  Tes Aus may, at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.  

15.4 Waivers - no failure or delay by either party or time or indulgence given in exercising any remedy or right under or in relation to the Agreement will operate as a waiver of the same. Neither will any single or partial exercise of any remedy or right stop any further exercise of the same or the exercise of any other remedy or right.  No waiver by either party of any requirement of the Agreement, or of any remedy or right under the Agreement, will have effect unless given in writing and signed by such party. No waiver of any particular breach of the provisions of the Agreement will operate as a waiver of any repetition of such breach.

15.5 Entire Agreement – the documents identified in clause 2.2 above set out the entire agreement between the parties and supersede all prior agreements, understandings or arrangements (both verbal and written) relating to the subject matter of the Agreement. No other provisions other than those contained in the Agreement will be binding on the parties unless expressly agreed to in writing by an authorised representative of Tes Aus. Specifically, no advice or information provided by or on behalf of Tes Aus will create any warranty or other obligation not expressly stated in the Agreement. The Agreement sets out the full extent of Tes Aus’ obligations and liabilities. 

15.6 Force Majeure - a Force Majeure Event means any event or circumstance that is beyond the reasonable control of the affected party, including flood, subsidence, terrorist act, epidemic, pandemic, fire, war, failure or shortage of power supplies, acts of government and industrial action of any kind.  Where either party is affected by a Force Majeure Event, it will not be liable to the other party for any failure or delay in performing its obligations under the Agreement to the extent that such failure or delay is caused by the Force Majeure Event. The affected party will be entitled to a reasonable extension of time for performing its relevant obligations, provided that it notifies the other party of the nature and the extent of the Force Majeure Event. The corresponding obligations of the other party will also be suspended. 

15.7 Jurisdiction – The Agreement is governed by the laws of New South Wales. The parties submit to the jurisdiction of the courts of New South Wales and courts of appeal from them. The parties will not object to the exercise of jurisdiction by those courts on any basis.