Effective 1 June 2023

This Agreement is between the 'User' named in the relevant Order Form ('User' or 'you') and Bluewater Control Pty Ltd (ABN 14 614 164 519) ("Bluewater"). Bluewater may modify these Terms of Use from time to time, subject to the terms in clause 13.3. These Terms of Use apply whether you purchase Bluewater Services directly from Bluewater, or through a Reseller.

By signing an Order Form, or by using and accessing Bluewater Services, you indicate your agreement to be bound by these Terms of Use.

1 FORMATION AND GRANT OF RIGHTS

1.1 Formation

This agreement consists of the following parts:

(a) the Order Form;

(b) these Terms of Use; and

("Agreement")

If there is any conflict between the Order Form, these Terms of Use and the Documentation, to the extent of the inconsistency, the document higher in the above list will prevail over a document lower in the list.

1.2 Grant of rights

Bluewater grants the User a temporary, limited, non-exclusive, non-transferable and world-wide right to use the Bluewater Service, the Bluewater Materials and the Documentation solely for the User's internal business operations.

2 BLUEWATER SERVICES

2.1 Provision of services and support

Bluewater will:

(a) provide the Bluewater Services as described in the Order Form;

(b) use appropriate security technologies in providing the Bluewater Service; and

2.2 Modifications

The Bluewater Services may be modified by Bluewater at any time. Modifications may include optional new features for the Bluewater Services, which the User may use subject to the then current Documentation.

2.3 Acceptable Use Policy

The User must not:

(a) reverse engineer, copy, translate, disassemble, decompile or make derivative works from the Bluewater Service;

(b) circumvent the usual operation of or security measures contained within the Bluewater Services; or

(c) upload any content or data that is unlawful or infringes any intellectual property rights of another person when using the Bluewater Services.

2.4 Authorised Users

The User may permit Authorised Users to use the Bluewater Services. That usage is subject to the restrictions set out in the Agreement. The User is solely responsible for breaches of this Agreement caused by Authorised Users.

2.5 Third party services

Third party facilities, including software programs, may be necessary for access to the Bluewater Services. The User agrees that its right to make any use of such facilities is governed by the terms of the relevant third-party licence or service agreement and not by this Agreement, and that rights to such facilities remain with the applicable licensor. User acknowledges that any third-party software provided with or contained in the Bluewater Services is provided "as is" and without warranty of any kind.

3 TERM & FEES

3.1 Term

The Initial Subscription Term of the Bluewater Services is specified in the Order Form ("Initial Term"). At the end of the Initial Term the Subscription will automatically renew for successive 1 month Subscription Term periods, unless either party gives written notice 45 days prior to the next renewal date to cancel the relevant Bluewater Services. .

3.2 Fees

In consideration of the supply of the Bluewater Services during the Subscription Term, the Customer agrees to pay the fees set out in the Order Form in accordance with the Order Form (whether or not the Order Form is issued by Bluewater or the Reseller).

4 USER DATA AND PERSONAL DATA

4.1 User Data

(a) The User is solely responsible for the accuracy and completeness of its own User Data and the provision of it to Bluewater for the purpose of providing the Bluewater Services. The User retains all rights to the User Data. The User grants to Bluewater and its Affiliates, as well as subcontractors, a non-exclusive right to process the User Data solely to provide and support the Bluewater Services. Bluewater will not use, or allow anyone else to use, User Data to contact any individual or company except as you direct or otherwise permit. When accessing the Bluewater Services through a Reseller, you consent that Bluewater may disclose any information, including User Data and/or personal data, contained on the Bluewater Platform to the Reseller.

(b) You agree that Bluewater may monitor your use of the Bluewater Services, and create anonymised aggregate information from User Data. This aggregated data will not contain personal information and may be combined with aggregate data Bluewater collects from other Users. You agree that Bluewater owns all rights in aggregate data and we may use aggregate data for any purpose, including publishing such data.

(c) User Data held on the Bluewater Services is hosted in Australia. If you select to use one of the Bluewater Connector products, for the purpose of integrating with your internal systems, you acknowledge and accept that this may involve the routing of such data through a country outside of Australia (for example, USA).

(d) Bluewater's use and collection of User Data is also governed by the Bluewater Privacy Policy and the Bluewater User Data Policy accessible at on the Bluewater portal login page.

4.2 Personal Data

The User will collect, use, handle and maintain all personal data contained in the User Data in compliance with applicable privacy and data protection laws, including the Privacy Act 1988 (Cth). The User warrants that it has all necessary consent to use and disclose personal information (as defined in the Privacy Act 1988 (Cth)) as contemplated by these Terms of Use.

4.3 Security

The User will maintain reasonable security standards for its Authorised Users' use of the Bluewater Services. Bluewater will use reasonable endeavours to maintain the security of data held on the Bluewater Platform. The User acknowledges that use of the Bluewater Services involves transmission of information over networks that are not owned, operated or controlled by Bluewater, and Bluewater is not responsible for any lost, altered, intercepted or stored information across such networks.

4.4 Access to User Data

(a) Subject to cause 4.4(b), during the Subscription Term, the User can:

(i) access its User Data at any time; and

(ii) export and retrieve its User Data in a standard format subject to any technical limitations specified in the Documentation.

(b) During the Subscription Term Bluewater retains a database archive of User Data for 2 years from the date Bluewater receives the User Data.

(c) Following the expiry of the Subscription Term, Bluewater will delete or overwrite the User Data within 10 Business Days unless an applicable law requires its retention. Any retained User Data will be held by Bluewater in accordance with the confidentiality provisions of these Terms of Use.

5 TERMINATION

5.1 Termination for cause

(a) A party may terminate this Agreement:

(i) upon 30 days' prior written notice of the other party's material breach (including, without limitation, the User's failure to pay any fees due for the Bluewater Service) unless the breach is rectified during that 30 day period; or

(ii) immediately, if the other party files for bankruptcy, becomes insolvent, or makes an assignment for the benefit of creditors, or otherwise materially breaches clauses 9 or 13.8.

(b) where the User has acquired the Bluewater Services through a Reseller, Bluewater may suspend the provision of the Bluewater Services if the relevant Reseller is no longer authorised to provide the relevant Bluewater Services.

5.2 Effect of expiration or termination

Upon the effective date of expiration or the termination of this Agreement:

(a) the User's right to use the Bluewater Services and all Bluewater Confidential Information will end, and the User's data will be deleted from Bluewater databases.

(b) the User will pay all fees which are due and payable to Bluewater without set-off, counterclaim or condition.

5.3 Suspension of service

Bluewater may suspend use of the Bluewater Services if:

(a)continued use by the User may result in material harm to the Bluewater Services or its users;

(b) the User breaches the Agreement;

Bluewater will notify the User of the suspension. Bluewater will limit the suspension in time and scope as reasonably possible under the circumstances.

5.4 Survival

Clauses 6, 7, 8, 9, 14, 13.3 and 13.4 will survive the expiration or termination of this Agreement.

6 WARRANTIES

6.1 User warranties

The User warrants that it will comply with all applicable laws and regulations when using the Bluewater Service.

6.2 Bluewater Platform availability

(a) Bluewater will use reasonable endeavours to make the Bluewater Services available 24 hours a day, 7 days a week, except for planned down-time for maintenance.

(b) Subject to clause 6.2(c) and 6.2(e) the Bluewater Platform will have a Platform Availability of 99.5% of the time during each billing Month.

(i) Due to Scheduled Downtime windows outside business hours for which the User has been notified at least five (5) Business Days prior to such a Scheduled Downtime;

(ii) Due to unavailability caused by factors outside Bluewater's reasonable control, such as unpredictable and unforeseeable events that could not have been avoided even if reasonable care had been exercised;

(iii) That result from the Users unauthorized action or lack of action when required, or from User employees, agents, contractors, or vendors, or anyone gaining access to the Bluewater Platform by means of the User's passwords or equipment, or otherwise resulting from the User's failure to follow appropriate security practices;

(iv) Due to the result from the use of services, hardware, or software not provided by Bluewater, including, but not limited to, issues resulting from inadequate bandwidth, network availability, or related to third-party software or services; and

(v) For licenses reserved, but not paid for, at the time of the relevant Incident.

(d) In this clause 6.2 the following words have the following meanings:

"Bluewater Platform" means Bluewater's cloud-based mobility management "platform" offered under a subscription basis.

"Downtime" means the total minutes in the Month during which the productive version of the applicable Bluewater Platform is not available, except for Scheduled Downtimes.

"Incident" means (i) any single event, or (ii) any set of events, that result in Downtime.

"Maximum Available Minutes" are measured 24 hours at 7 days a week during a billing Month.

"Month" means a calendar month.

"Platform Availability" is calculated per billing Month using the following formula: Platform Availability % = (Maximum Available Minutes-Downtime)/(Maximum Available Minutes) x 100.

"Scheduled Downtime" Bluewater Platform unavailability due to planned servicing, maintenance or system deployment activities.

(e) The User acknowledges that Bluewater's failure to meet the level of Platform Availability set out in clause 6.2(a) does not constitute a breach of this Agreement.

6.3 Support

During the Subscription Term, we will provide support for the Bluewater Services in accordance with the following guidelines and the applicable Order Form.

Support entitlements	User Portal Administrators
L1: Application down	An error that renders the Bluewater Platform inoperative. If the Bluewater Platform is down or does not function at all, and there is no workaround to the problem.
L2: Serious Degradation	One element of the Bluewater Platform is unavailable or degraded causing a major impact on productivity, but the Bluewater Platform as a whole remains operational.
L3: Low Impact / Enquiry	Issues of minimal impact as workaround exists, or a general request.
Initial Response Time	L1: 2 business hours L2: 6 business hours L3: 2 business days
Support hours	9AM-5PM (AEST) Excluding Public Holidays

6.4 Disclaimer

To the maximum extent permitted by law, except as expressly provided in this Agreement, neither Bluewater nor its subcontractors make any representations or warranties, express or implied, statutory or otherwise, regarding any matter, including the merchantability, suitability, originality or fitness for a particular use or purpose, non-infringement or results to be derived from the use of or integration with any Bluewater Services provided under the Agreement, or that the operation of any products or services will be secure, uninterrupted or error free. The User agrees that it is not relying on delivery of future functionality, public comments or advertising of Bluewater or product roadmaps in obtaining subscriptions for any Bluewater Service.

7 INDEMNITY

The User will indemnify Bluewater against all liability, cost, damages and claims brought against Bluewater and its Affiliates and subcontractors by any third party related to the User Data, use by the User of the Bluewater Services, breaches by the User of confidentiality or privacy, or infringement of Bluewater's intellectual property rights.

8 LIABILTY

8.1 Exclusion of liability

To the extent permitted by law, Bluewater and its licensors will not be responsible under this Agreement:

(a) if the Bluewater Services are not used in accordance with the Documentation;

(b) for liability caused by the Reseller, the User or any third-party product or service (for the avoidance of doubt, this includes any orders or requests placed by the User that are not fulfilled or actioned by the Reseller or Users' provisioning party);

(c) for loss arising from use of the Bluewater Services in conjunction with any product or service not provided by Bluewater;

(d) for any User activities not permitted under this Agreement; or

(e) for any loss or corruption of data.

Bluewater and its licensors will not be liable for any claims or damages arising from inherently dangerous use of any of the Bluewater Services provided under or in connection with this Agreement.

8.2 Limitation of liability

To the extent permitted by law, Bluewater's liability for a breach of this Agreement (including liability for negligence) is limited to an amount equal to the subscription fees paid by the User in the 12-Month period immediately preceding the breach of this Agreement.

8.3 Consequential loss

To the maximum extent permitted by law, neither party will be liable to the other party for any consequential loss or damage. The following losses constitute consequential loss, whether they arise directly or indirectly from the relevant acts or omissions of a party:

(a) loss of profit, use, rental or other benefit;

(b) loss of production, revenue, actual or potential opportunity;

(d) loss of anticipated savings;

(e) business interruption; or

(f) any form of consequential loss (that is, loss does not arise naturally in the ordinary course of things from the event or circumstance giving rise to the loss).

8.4 Competition and Consumer Act 2010 (Cth)

Nothing in this Agreement excludes any rights the User or any other person may have under the Australian Consumer Law (schedule 2 to the Competition and Consumer Act 2010 (Cth)). When supplied to a 'consumer' (as defined in the Australian Consumer Law), Bluewater's Services come with guarantees that cannot be excluded. Our liability for breach of a consumer guarantee under the Australian Consumer Law (or any term implied by law) will be limited, at our option, to:

(a) if the breach relates to goods:

(i) the replacement of the goods or the supply of equivalent goods;

(ii) the repair of the goods;

(iii) the payment of the cost of replacing the goods;

(iv) the payment of the cost of having the goods repaired; or

(b) if the breach relates to services:

(i) the supplying of the services again; or

(ii) the payment of the cost of having the services supplied again.

9 INTELLECTUAL PROPERTY RIGHTS

9.1 Bluewater ownership

Bluewater, its Affiliates or its licensors own all intellectual property rights in and related to the Bluewater Service, the Bluewater Materials, Documentation, design contributions, related knowledge or processes and any derivative works of them. All rights not expressly granted to the User are reserved to Bluewater, its Affiliates or its licensors.

9.2 User ownership

The User retains all rights in and related to the User Data. Bluewater may use the User Data for the sole purpose of providing the Bluewater Service.

9.3 Non-assertion of rights

The User undertakes that it will not assert any right, title or interest in the Bluewater Service, the Bluewater Materials or Documentation other than the right to use those products or services in accordance with this Agreement. The User undertakes that it will not register a security interest on the Personal Properties Securities Register in the Bluewater Service, the Bluewater Materials or Documentation.

10 CONFIDENTIALITY

10.1 Use of Confidential Information

(a) The receiving party will keep confidential all Confidential Information of the disclosing party.

(b) The receiving party will not disclose the Confidential Information of the disclosing party to any person other than its personnel, representatives or Authorised Users whose access is necessary to enable it to exercise its rights or perform its obligations under this Agreement and who are under an obligation to keep that information confidential. Notwithstanding the foregoing provision, the User will not disclose the Agreement or the pricing to any person without the prior written consent of Bluewater.

(c) It is agreed that all Confidential Information of either party disclosed prior to the execution of and entry into this Agreement will be subject to the provisions of clause 10.

(d) If the receiving party is required by law to disclose the Confidential Information of the disclosing party, then the receiving party must promptly notify the disclosing party of that matter and must seek appropriate orders or undertakings from the Court or relevant government agency preserving the confidentiality of that information. The receiving party must also disclose the minimum amount of Confidential Information to the extent permitted by law.

(e) The receiving party must promptly return or destroy all Confidential Information of the disclosing party on the earlier of the termination of this Agreement or a written request to do so from the disclosing party.

10.2 Exceptions

The restrictions imposed by this Agreement on the use or disclosure of Confidential Information do not apply to any Confidential Information that:

(a) is independently developed by the receiving party without reference to the disclosing party's Confidential Information;

(b) is generally available to the public without a breach of this Agreement by the receiving party;

(d) the disclosing party agrees in writing may be disclosed by the receiving party.

10.3 Publicity

Bluewater may identify the User in its promotional materials. The User may request that Bluewater stop doing so by submitting an email to customersuccess@bluewatercontrol.com.

11 GST

11.1 Payment of GST

The parties agree that all amounts payable under this Agreement are expressed on a GST exclusive basis. If GST is payable in relation to a Taxable Supply, then the amount payable for that Taxable Supply is the amount for that Taxable Supply specified in this Agreement plus GST. The parties must provide each other with all documentation required to claim any Input Tax Credit, set off, rebate or refund for or in relation to any GST included in any payment made under this Agreement.

11.2 Definitions

In clause 11, the terms "GST", "Taxable Supply" and "Input Tax Credit" have the meaning given in A New Tax System (Goods and Goods Tax) Act 1999 (Cth).

12 RELATIONSHIP WITH RESELLERS

12.1 Non-payment by Reseller

Bluewater may in its sole discretion suspend the User's use of the Bluewater Services if an applicable fee or other amount payable by a Reseller is not paid by the relevant due date.

12.2 Termination of reseller relationship for orders relating to the User

If:

(a) the Reseller terminates all orders relating to the User;

(b) Bluewater terminates any of the Reseller's orders relating to the User for cause; or

(c) the contractual relationship between Bluewater and the Reseller relating to the sale of Bluewater Services is terminated,

then Bluewater may (depending on the User's choice):

(i) directly provide the affected Bluewater Services to the User pursuant to Bluewater's then current terms and conditions for the Bluewater Services for a mutually agreed fee; or

(ii) recommend to the User other resellers or third parties for the provision of the affected Bluewater Services.

13 GENERAL PROVISIONS

13.1 Relationship

Nothing in this Agreement creates a relationship of employment, trust, agency, partnership or fiduciary between the parties.

13.2 Entire agreement

This Agreement contains the entire agreement and understanding between the parties in respect of its subject matter and supersedes any prior agreement or understanding between the parties on anything connected with that subject matter.

13.3 Variation or amendment

Bluewater may modify these Terms of Use from time to time. If a revision meaningfully reduces your rights, Bluewater will use reasonable efforts to notify the User (by, for example, sending an email to the User's account contact in your Order Form, or in the Bluewater Platform itself). If Bluewater modifies the Agreement during your Subscription Term, the modified version will be effective upon the next renewal of a Subscription Term. In this case if the User objects to the updated Agreement, as your exclusive remedy, then the User may choose not to renew, including cancelling any terms set to auto-renew. For the avoidance of doubt, any signing of an Order Form is subject to the version of the Terms of Use in effect at the time of signing.

13.4 Severability

Any provision of, or the application of any provision of, this Agreement that is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.

13.5 No merger

The rights and obligations of the parties under this Agreement do not merge on completion of any transaction contemplated by this Agreement.

13.6 No waiver

Waiver of any right, power, authority, discretion or remedy arising on default under this Agreement must be in writing and signed by the party granting the waiver. A failure or delay in exercise, or partial exercise, of a right, power, authority, discretion or remedy created or arising on default under this Agreement does not result in a waiver of that right, power, authority, discretion or remedy.

13.7 Applicable law and jurisdiction

This Agreement is governed by the law in force in New South Wales and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of that State.

13.8 Assignment

This Agreement may not be assigned or transferred by the User without the prior written consent of Bluewater. Bluewater may assign or transfer this Agreement to an Affiliate without having to obtain the prior written consent of the User.

13.9 Subcontracting

Bluewater may subcontract all or part of the Bluewater Services to any of its Affiliates or third parties. Bluewater is responsible for all breaches of this Agreement caused by its Affiliates or third parties.

13.10 Force Majeure

It is agreed that a delay in the performance that is caused by conditions beyond the reasonable control of the performing party is not a breach of this Agreement (except in relation to an obligation to pay). The time for performance will be extended for a period equal to the duration of the conditions preventing performance. The foregoing provisions do not apply to an obligation to pay any amounts due and payable under this Agreement.

13.11 Notices

All notices must be in writing and given to the address set out in the Order Form. A notice may be sent by post, facsimile transmission or email to the recipient's address set out in the Order Form.

14 DEFINITIONS AND INTERPRETATION

14.1 Definitions

In this agreement:

Affiliates of a party means any legal entity in which a party, directly or indirectly, holds more than 50% of the entity's shares or voting rights. To be clear, any legal entity will be treated as an Affiliate of the relevant party for the purposes of this Agreement so long as that party maintains more than 50% of that entity's shares or voting rights.

Authorised Users means any individual who is an employee, agent, contractor or representative of the User or the User's Affiliates to whom the User grants access authorisation to use the Bluewater Services.

Bluewater means Bluewater Control Pty Ltd (ACN 614 164 519).

Bluewater Materials means any materials provided or developed by Bluewater (independently or with a Reseller's and/or a User's co-operation) in the course of the performance of this Agreement, including in the delivery of any support or Bluewater Services to the User. To be clear, the Bluewater Materials do not include the User Data or User Confidential Information.

Bluewater Services means (a) Bluewater's cloud-based mobility management "platform" offered on a subscription basis; (b) Bluewater's "managed platform" product, bundling managed services with the platform; and (c) any other services outlined in the Order Form offered outside our hosted platform (e.g. training, analysis and implementation) provided by Bluewater to the User under the Order Form.

Business Days means a day on which banks are open for business in Sydney.

Confidential Information means:

(a) with respect to the User:

(i) the User's Data;

(ii) the User's marketing and business requirements;

(iii) the User's implementation plans; or

(iv) the User's financial information;

(b) with respect to Bluewater:

(i) the Bluewater Services, Documentation, Bluewater Materials; and

(ii) information regarding Bluewater research and development, product offerings, pricing and availability;

(c) Confidential Information of either Bluewater or the User also includes information which the disclosing party protects against unrestricted disclosure to others that:

(i) the disclosing party or its representatives designates as confidential at the time of disclosure; or

(ii) should reasonably be understood to be confidential given the nature of the information and circumstances surrounding its disclosure.

Documentation means the then current technical and functional documentation of Bluewater as well as any descriptions of the roles and responsibilities for the Bluewater Services which is made available to the User with the Bluewater Services.

Initial Subscription Term means the initial term of a Bluewater Services subscription which is identified in the applicable Order Form.

Order Form means an order form executed by the User and either Bluewater or a Reseller which references these Terms of Use.

Reseller means a party holding an agreement with Bluewater as a non-exclusive reseller of Bluewater Services. Resellers typically offer the Bluewater Platform as part of their broader managed service offering.

Subscription Term means the term of the Bluewater Services subscription the initial term of which is identified in the Order Form, including all renewals.

Terms of Use means this document.

User means the party identified in the Order Form.

User Data means any content, materials, data and information that Authorised Users enter into a system of a Bluewater Services or that User derives from its use of and stores in the Bluewater Services such as User specific reports. To be clear, User Data and its derivatives will not include Bluewater's Confidential Information.

14.2 Interpretation

In these Terms of Use:

(a) the singular includes plural and conversely;

(b) headings are used for convenience only and do not affect interpretation of these Terms of Use;

(c) where any word or phrase is given a defined meaning, any other grammatical form of that word or phrase has a corresponding meaning;

(d) references to clauses, schedules, or annexures refer to clauses, schedules or annexures of this Agreement;

(e) a reference to any party to this Agreement or any other agreement or document includes the party's successors and permitted assigns;

(f) the words "including", "for example" or similar expressions are not words of limitation; and

(g) no rule of construction of documents shall apply to the disadvantage of a party, on the basis that the party put forward this document or any relevant part of it.

End.