This DEED is made on the date of the Order Form 2024 BETWEEN: Heidi Bi t/as fruifrui (“HB”)
AND: The Customer
AND: The Guarantor
(Individually referred to as “Party” or collectively referred to as “Parties” or “the Parties”)
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RECITALS
A. HB is the owner and operator of the Business, and the Business offers commercial products and services.
B. The Customer has requested the products and services produced by the Business.
C. The Customer wishes to engage the services of HB, for consideration, and subject to the terms and conditions set out in this Deed.

IT IS AGREED
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1. Interpretation and Definitions
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a. In this Deed, unless the context requires otherwise, the following shall apply:
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i. References to this or any other document include the document as varied or amended, and notwithstanding any change in the identity of the Parties.
ii. A reference to a gender shall include a reference to all other genders, and the singular will include the plural and vice versa.
iii. A reference to a statute, ordinance, code, or other law includes regulations and other statutory instruments under it and consolidations, amendments, re-enactments or replacements of any of them (whether of the same or any other legislative authority having jurisdiction), and any equivalent of any other legislative authority having jurisdiction that may be relevant to the subject matter of this Deed.
iv. Headings are for convenience only and shall not be taken into account in interpreting the provisions of this Deed.
v. A reference to a clause, part, schedule or attachment is a reference to a clause, part, schedule or attachment of or to this Deed, in its original form or any varied or amended form that comes into effect.
vi. An expression importing a natural person includes any assignee, trust, partnership, joint venture, association, body corporate or governmental agency.vii. Reference to an amount of money is a reference to the amount in the lawful currency of the Commonwealth of Australia.
viii. Reference to a Party will include a reference to that Party’s successors, heirs or assignees permitted by law.
ix. An obligation of 2 or more Parties binds them jointly and separately and an obligation incurred in favour of 2 or more Parties is enforceable by them jointly and separately.
x. Where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.

b. In this Deed, unless the context requires otherwise, the following words mean:
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i. “The Business” means the business of providing graphic and other design and marketing products and services, utilising graphic design, illustration, photography, icon and logo creation, stock images and fonts and other design assets sourced from third parties, and digital marketing and design services including web-based marketing and search optimisation, and the coordination of like services and products outsourced from third parties, on a tailored basis to suit the needs of the Customer.
ii. “Claims” means any claims, without limitation, including any suit, action, cause of action, arbitration, money, debt, costs, demands, verdicts and judgments, whether brought by a private or public entity, including a regulatory body, either at law or in equity or arising under the provisions of any statute, including but not limited to a breach or alleged breach of the Building Law, the Construction Law, the Consumer Law, the Privacy Law, or arising as a result of a Tortious Action, whether in any Australian jurisdiction or otherwise.
iii. “Consumer Law” means the Competition and Consumer Act 2010 (Cth), and particularly Schedule 2 thereto, the Fair Trading Act 1987 (NSW), the Trade Practices Act 1974 (Cth), any accompanying regulations to those statutes, and the common law relating to consumer transactions, including but not limited to the sale of goods and the issue of misleading and deceptive conduct, and any equivalent, similar or alternative statutes, legislation, regulations, ordinates, codes, or law in any other jurisdiction.
iv. “Corporations Law” means the Corporations Act 2001 (Cth) and the accompanying regulations thereto.v. “Credit Application” means an application submitted by the Customer to HB for credit pursuant to clause 7 of this Deed in the form set out in the document entitled “HB Credit Application Form”.
vi. “The Customer” means any person who accepts the terms of this Deed in accordance with clause 16 herein.
vii. “GST” means Goods and Services Tax, as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
viii. “Guarantor” means the person or persons nominated as such on the Order Form submitted by the Customer to HB, if applicable.
ix. “Intellectual Property” means any copyright, moral rights, trademarks, designs, patents or other proprietary rights that may exist or may be capable of existing, whether or not such existence is contingent upon the doing of any thing, including but not limited to the registration of such a right, in any photographic, cinematographic, literary, dramatic, musical or artistic works, sound recordings, computer programs, broadcasts or other things, publications, adaptations and so forth, as the case may be.
x. “Intellectual Property Law” means the international instruments governing intellectual property law, including but not limited to any multinational treaties such as the “Berne Convention” (1971), the “WIPO Copyright Treaty” (1996), the “Paris Convention” (1967) and the “Madrid Protocol” (1989), any bilateral treaty governing intellectual property law, including but not limited to Chapter 17 of the “Australia-United States Free Trade Agreement” (2005), and the domestic regimes governing intellectual property law, whether or not extending beyond the provisions of such international instruments, including but not limited to the Trade Marks Act 1995 (Cth), the Copyright Act 1968 (Cth), the Patents Act 1990 (Cth), the Designs Act 2003 (Cth), any accompanying regulations thereto, and equivalent, similar or alternative instruments, treaties, agreements, statutes, legislation, regulations, ordinates, codes, or law in any other jurisdiction.
xi. “Interest Rate” means the rate that is 6% above the cash rate published by the Reserve Bank of Australia for the period immediately preceding the relevant period in which interest commences to accrue under this Deed.
xii. “HB’s Privacy Policy” means the policy concerning the management of personal information published by HB on its website and updated or amended from time-to-time, in accordance with the Privacy Law.
xiii. “Order” means the order for products and / or services by the Customer from HB as constituted upon the acceptance of this Deed in accordance with clause 16 herein.
xiv. “Order Form” means the form given to the Customer by HB and completed by the Customer containing a quotation for the relevant services to be provided by HB.
xv. “PPSA” means the Personal Property Securities Act 2009 (Cth) and the accompanying regulations thereto.
xvi. “Privacy Law” means the Privacy Act 1988 (Cth) and particularly the “Australian Privacy Principles” set out in Schedule 1 thereto, any accompanying regulations thereto, and any equivalent, similar or alternative statutes, legislation, regulations, ordinates, codes, or law in any other jurisdiction.
xvii. “Security Interest” means a mortgage, an interest available under the PPSA, a charge as defined in the Corporations Law, and / or a caveat.
xviii. “The SOGA” means the Sale of Goods Act 1923 (NSW).
xix. “Tortious Action” means any conduct capable of giving rise to a Claim founded on a tort, including but not limited to the torts of negligence, assault, trespass to person or property, negligent misrepresentation, deceit, interference with contractual relations and public nuisance.
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2. Purpose and Agreement
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The purpose of this Deed is to set out and formalise the terms and conditions upon which the Customer engages HB and procures the relevant products and services, which the Parties have agreed to be essential, including the:
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a. consideration payable to HB by the Customer;
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b. nature and extent of the products and / or service that HB will provide to the Customer;
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c. way in which personal information is collected, stored and distributed in connection with the services of HB;
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d. limitations in the products and / or services provided by HB; and
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e. allocation of various liabilities or potential liabilities and corresponding releases and indemnities.

3. Warranties

a. Before entering into this Deed, the Customer and the Guarantor have obtained, or have had the opportunity and have elected not to obtain, separate and independent legal, accounting and financial advice as to the terms of this Deed and as to their obligations, rights and liabilities under this Deed. HB relies on this warranty and representation given by the Customer.
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b. All Parties intend for this Deed to be binding.
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c. The Customer and the Guarantor understand that this Deed continues to operate despite the death of the Customer or the Guarantor, and operates in favour of, and is binding on, the legal personal representative of that Party.
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d. The Parties have entered this Deed with the intention that it will still apply with a binding effect to the fullest extent possible notwithstanding any material change in the circumstances of any Party.
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e. No Party has entered this Deed as the result of any undue influence, unconscionable conduct, duress or similar circumstances of pressure,
necessity or unequal bargaining power and all Parties were fully cognisant of the advantages and disadvantages of so entering at the time of making an informed choice in the affirmative.
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f. The Customer and the Guarantor will do all things reasonably necessary, including but not limited to the execution and lodgement of any
requisite documents, to give effect to the provisions of this Deed.
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g. The Customer and the Guarantor will refrain from doing anything, including but not limited to the execution of a last will and testament with inconsistent provisions to this Deed, that may potentially jeopardise the operation or effect of any of the provisions of this Deed, and the Customer and the Guarantor acknowledge and agrees that any such act will be void or voidable at the discretion of HB.
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h. The Customer and the Guarantor specifically warrants to HB that the Customer understands, acknowledges and accepts the provisions of this Deed.
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i. HB makes no warranties to the Customer or the Guarantor with respect to the goods and / or services, or those procured by third parties by way of outsourcing.

4. Consideration
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a. In consideration for the services provided by HB, the Customer:
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i. Must pay to HB the fee stated on the Order Form upfront in full, and before HB provides any of the products and / or servicesspecified on the Order Form, by way of a non-refundable 40% deposit.
ii. Must pay a further 40% of the fee stated in the Order Form on the provision of incremental invoices issued by HB following the completion of the agreed milestones stated on the Order Form, as and when those invoices fall due for payment, as expressed;
iii. Must pay the final 20% of the fee stated in the Order Form immediately upon delivery of the final version of the products and / or services outlined in the Order Form;
iv. Must pay to HB an hourly rate of $100.00 plus GST during weekdays, or $150.00 plus GST on weekends, for any time spent providing products and / or services not specifically outlined in the Order Form;
v. Must pay to HB, by way of reimbursement, the full sum of any invoice rendered to HB by a third party in connection with the products or services supplied by HB to the Customer, and any out-of-pocket expenses reasonably incurred by HB in providing the products and / or services;
vi. Must pay interest at the Interest Rate with respect to any late payments due to HB under this Deed unless and until the relevant sum is paid in full (including, but not limited to, any portion of the agreed fee withheld in accordance with an approved Credit Application); and
vii. Acknowledges and agrees to, and must specifically comply with, the terms of this Deed.
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b. Unless otherwise stated, GST is payable by the Customer in addition to any figure cited in this Deed, the Order Form, the Drawings and / or the Credit Application.
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c. Unless agreed otherwise in writing, all paymentsmade by the Customer to HB are strictly non- refundable, irrespective of whether or not theCustomer changes its mind after submitting an Order.
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d. A breach of this clause on the part of the Customer gives HB an immediate right to terminate this Deed and refuse the Customer access to any and all documents relating to the services or activities of HB and any future services, without the need to refund or compensate the Customer in any way whatsoever, and notwithstanding any agreed timeline set out in the Order Form, which shall be extended by an equal amount to the delay in the respective late payment on each occasion of default.

5. Supply and Delivery of Goods and / or Services

a. The Customer acknowledges and agrees that it is the responsibility of the Customer to familiarise itself with the Consumer Law and the SOGA, and that it is not the responsibility of HB to do so, in any way whatsoever, and that HB will not do so.
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b. The Customer acknowledges and agrees that HB makes or gives no undertaking, assertion or representation with respect to the products and / or it supplies to the Customer, which the Customer acknowledges and agrees it sought out from HB without encouragement, and in relation to which the Customer relies solely upon the description set out in the Order Form.
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c. The Customer acknowledges and agrees that, following from the preceding subclause, HB has not acted in any manner amounting to, or likely to amount to, misleading or deceptive conduct, coercion, bait advertising, pyramid selling, an unsolicited offer or supply, unconscionable conduct, unfair practices, third line enforcing or any other conduct or practice capable of constituting a breach of the Consumer Law, or the provision of products or services not fit for purpose, not fitting their description, or any other conduct or practice capable of constituting a breach of the SOGA.
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d. The Customer shall not, under any circumstances whatsoever, give or make any undertaking, assertion or representation in relation to products and / or services supplied to it by HB, to a third party without the prior written consent of HB, or engage in any other conduct or practice capable of constituting a breach of the Consumer Law or the SOGA, with respect to the goods and / or services supplied to it by HB, and shall indemnify and keep indemnified HB with respect to any Claim arising from a breach of this clause.

e. The Customer acknowledges and agrees that, under no circumstances whatsoever, will HB be taken to have provided advice to the Customer about its products and / or services, or to have suggested products and / or services to suit a particular purpose, and the Customer selects its products and / or services the subject of any Order independently.
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f. The Customer acknowledges and agrees that it has selected the products and / or services the subject of the Order with the benefit of having physically inspected and accepted the products and / or services at the point of collection or delivery of same, as the case may be, and that consequently, the Customer does not have a right to return the products or refuse payment, and no implied condition arises with respect to the products and / or services.g. The Customer acknowledges and agrees that ownership of the products and / or services the
subject of an Order does not pass to the Customer unless and until the products and / or services are paid for in full, although this clause does not absolve the Customer in any way with respect to its obligation to pay for those goods and / or services, nor disentitle HB to seek damages and / or enforce a Security Interest in accordance with this Deed.
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h. The Customer acknowledges and agrees that HB will provide approximate delivery times only, and such times are not to be taken under any circumstances whatsoever as being essential provisions of this Deed.
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i. The Customer acknowledges and agrees that HB will under no circumstances whatsoever be held to be liable in any way for Claims made by the Customer or a third party with respect to goods and / or services the subject of an Order, whether collected by the Customer from the trading premises of HB or delivered by HB, after acceptance by the Customer of those goods and / or services, which shall be deemed to have occurred upon the making of payment by the Customer, the provision of acceptance of confirmation by the Customer, or the use by the
Customer of the products and / or services, whichever is the earlier.
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j. Unless otherwise agreed to in writing between the Parties, and subject to the provisions of this Deed, the timing for delivery of the goods and / or services will be as close as possible as HB can achieve to the delivery date stated on the Order Form.
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k. The Customer acknowledges and agrees that it does not have a right of termination that extends to any particular milestone described in the Order Form once HB has commenced work on that particular milestone.
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l. The Customer also acknowledges and agrees that:
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i. it only has five business days within which to advise HB of any incorrectness with respect to the products and / or services provided by HB, failing which the relevant milestone will be taken to have been completed and the relevant products and / or services accepted and payment falling due;
ii. following such advice, HB must attend to any necessary changes required as soon as practicable, provided same fall within the scope of the description of works set out in the Order Form; and
iii. In the event that same does not fall within the description of works set out in the OrderForm, HB is not required to make those changes; and
iv. In the event that HB does make changes complying with the description of works set out in the Order Form, payment by the Customer immediately falls due, and the timetable for milestones set out in the Order Form are extended by an amount of time equal to the time spent dealing with the said changes.
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m. To the extent permitted by law, the provisions of the SOGA and the Consumer Law are excluded from operation in any manner that would be adverse to the interests of HB.
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n. Following delivery, all risk passes to the Customer, subject only to the final works required of HB to effect completion, and following completion, all risk passes to the Customer.

6. Exclusivity
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The Customer and the Guarantor acknowledge and agree that HB is not bound exclusively to the Customer or the Guarantor, and the Business may provide products and / or services to other customers of HB, including but not limited to direct and / or indirect competitors of the Customer and / or the Guarantor, without the prior consent of the Customer and / or the Guarantor.
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7. Provision of Trade Credit
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a. The Parties acknowledge and agree that, owing to the circumstances of the transactions envisaged by this Deed, the provisions of the National Consumer Credit Protection Act 2009 (Cth), the accompanying regulations thereto or the code contained within do not apply to any credit arrangement provided by HB to the Customer.
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b. HB will not extend any credit to the Customer without receiving and approving a Credit Application from the Customer.
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c. HB will not extend any credit to the Customer without being satisfied that a credit worthy Guarantor has accepted the position of guarantor for the Customer’s obligations arising pursuant to this Deed, and HB reserves the right to request further information and / or documentation from the Guarantor to verify same, including but not limited to security documentation, as a condition precedent to extending credit to the Customer.
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d. HB reserves the right to reject a Credit Application submitted by the Customer or to decline to continue provide credit to the Customer at any time and at the sole discretion of HB.
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e. HB reserves the right to make acceptance of a Credit Application by the Customer contingent onthe provision and investigation of further information and / or documentation from the Customer.
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f. If HB approves a Credit Application, the effect of the approval will be to stay the operation of a portion only of the Customer’s payment
obligation, as set out in clause 4 herein.
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g. Clause 4.a.iv. will continue to apply notwithstanding that HB may have extended credit to the Customer pursuant to this clause.
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h. In submitting any Credit Application, the Customer warrants to HB that it has and will keep current all appropriate insurances relating to its business and the goods and / or services to be supplied, and delivery of those goods and / or services, by HB, sufficient to cover any relevant Claim, and that it will indemnify HB for any such Claim.
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i. Both the Customer and the Guarantor acknowledge and agree that, in submitting any Credit Application, HB becomes entitled to charge any real, personal or other property owned by them, or to otherwise secure any monies payable to HB through that property, and to procure from the Customer and / or the Guarantor a duly executed Security Interest for lodgement and / or registration and / or enforcement, at the expense of the Customer and / or the Guarantor, as the case may be, including any legal costs incurred, on a full indemnity basis.
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j. The Customer and the Guarantor acknowledge and agree that HB may pursue them jointly and / or severally at the election of HB in the event of a material breach of this Deed.
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8. Privacy
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a. The Customer warrants to HB that the Customer has familiarised itself, or will familiarise itself at the first available opportunity, with the Privacy Law, and that it is not the responsibility of HB to do so, in any way whatsoever, and that HB will not do so.

b. The Customer warrants to HB that the Customer has read HB’s Privacy Policy.
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c. The Customer accepts the terms of HB’s Privacy Policy.
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d. The Customer hereby consents and gives express permission for HB to use the Customer’s personal information and any information the Customer provides to HB in the following manners:
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i. To register the Customer’s account with HB;
ii. To ensure the Customer’s compliance with clause 4 herein; and
iii. To disclose, if required to do so by law.
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e. The Customer understands that, notwithstanding that HB takes the most appropriate measurespossible in the circumstances to ensure against such occurrences, other persons or entities with whom HB deals, or hackers or other cyber criminals, may use the Customer’s information or content in a manner that breaches the Privacy Law or HB’s Privacy Policy or this clause. The Customer engages HB knowing and accepting that this is a risk that the Customer assumes in full, and the Customer hereby forever releases and indemnifies in full HB for any such occurrence or any similar or like occurrence.

f. Any act inconsistent with this clause on the part of the Customer, including but not limited to a breach or the pursuit of a Claim in relation to the Customer’s personal information or the Privacy Law, gives HB an immediate right to terminate this Deed and cancel the Customer’s access to any and all documents relating to the services or activities of HB and any future services, without the need to refund or compensate the Customer in any way whatsoever.
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9. Statutory Breaches and other Tortious Actions
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a. The Customer warrants to HB that the Customer has familiarised itself, or will familiarise itself at the first available opportunity, with the Consumer Law and the Corporations Law, and that it is not the responsibility of HB to do so, in any way whatsoever, and that HB will not do so.
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b. The Customer hereby warrants to HB that it will not involve itself in any way whatsoever with any act or omission that gives rise to an actual or potential breach or contravention of the Consumer Law or the Corporations Law, as the case may be.

c. The Customer understands that, notwithstanding that HB itself takes the most appropriate measures possible in the circumstances to ensure against its services falling foul of the requirements of the Consumer Law and the Corporations Law, limitations apply as set out in clause 11 herein. The Customer engages HB and procures the goods and / or services from HB knowing and accepting that this is a risk that the Customer assumes in full, and the Customer hereby forever releases and indemnifies in full HB for any such occurrence or any similar or like occurrence.
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d. The Customer also acknowledges and agrees that the Customer remains liable, to the exclusion of HB under any and all circumstances whatsoever, to its principle contractor, client or another relevant third party the Customer is obligated to, at all times.
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e. Any act inconsistent with this clause on the Part of the Customer, including but not limited to a breach or the pursuit of a Claim in relation to the Construction Law, the Building Law, the Consumer Law or the Corporations Law, givesHB an immediate right to terminate this Deed and cancel the Customer’s access to any and all documents relating to the services or activities of HB and any future services, without the need to refund or compensate the Customer in any way whatsoever.
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f. The provisions of this clause apply in full, mutatis mutandis, with respect to other applicable Tortious Actions, as the case may be.

10. Indemnification
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The Customer and the Guarantor expressly acknowledge and agree that:
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a. HB may be relying on representations made and / or warranties given by other Parties in this Deed and that, as such, HB may, and may continue to, assume considerable risk, including but not limited to through the fulfilment of HB’s obligations in reliance upon the Customer’s warranties, that HB may not otherwise have endeavoured to assume in absence of the Parties’ execution of this Deed;
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b. The Customer and the Guarantor acknowledge that, in the event of a breach, derogation from, inability, unwillingness or refusal of the Customer or the Guarantor to comply with the terms of this Deed, HB would have relied upon the Customer’s representations and / or warranties to its detriment and that, as such, the Customer and / or the Guarantor will indemnify HB for any reasonable costs or expenses, whether direct or indirect, present or future, incurred by HB in connection with this Deed;
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c. Subject to HB acting in breach or outside the scope of the provisions of this Deed, the Customer and the Guarantor specifically indemnify HB against the following occurrences:
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i. Any and all Claims arising in relation to the Customer’s use of the products and / or services provided by HB generally;
ii. Any and all Claims relating to third parties HB has engaged for outsourcing purposes;
iii. Any and all Claims arising in relation to the use by third parties of the products and / or services of HB generally that may affect or relate in any way whatsoever to the Customer or the Guarantor and that may have a bearing on HB;
iv. Any Claim based on negligence, other Tortious Actions or a breach of the Consumer Law, the Corporations Law or any other applicable statute, regulation, common law or equitable principle, as the case may be; and
v. Any ancillary loss or damage, suffered by the Customer or any third party.d. Without limiting any other right or obligation which a Party may have under this Deed or a covenant herein or otherwise, the Customer and the Guarantor indemnify HB and will keep HB indemnified for any Claims or other loss or damage suffered as a result of a breach by HB or a third party or the Customer or the Guarantor of this Deed or a contravention of any law, regulation, by-law or order of any relevant competent authority or the covenants of this Deed; and

e. Any indemnity under this Deed will be independent of any other obligation of any Party and is irrevocable and will continue despite expiration or termination of this Deed. HB may enforce any indemnity without or before incurring any actual expense or suffering any actual loss or damage.
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11. Limitations
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The Customer acknowledges and agrees that, while HB has taken all reasonable measures to ensure that the most accurate, credible and reliable information is provided to the Customer by HB, the products and / or services rendered by HB have the following limitations:
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a. HB does not guarantee the absolute accuracy or conclusiveness of its products and / or services under any circumstances whatsoever;

b. HB does not warrant that products and / or services will be sufficient for the purposes of the marketing goals or objectives of the Customer or, if the Customer is outsourcing to HB, for the purpose of the goals or objectives of the customer of the Customer, and HB maintains that it is the responsibility of the Customer to describe and procure sufficient products and / or services for those purposes;
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c. HB does not give any warranties with respect to the products and / or services provided by contractors engaged by HB, or the input products and / or services used by HB in providing the products and / or services, or the finished product provided by HB to the Customer;

d. The responsibility of HB is to provide products and / or services that reflect the description set out in the Order Form only.

12. Intellectual Property
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a. The Customer warrants to HB that the Customer has familiarised itself, or will familiarise itself at the first available opportunity after requesting goods and / or services, with the Intellectual Property Law, and that it is not the responsibility of HB to do so, in any way whatsoever, and that HB will not do so.
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b. The Customer hereby assigns to HB in full any and all title or right, whether legal or equitable, and whether existing or registered or not, in or to or in relation to, any Intellectual Property in any and all content that may come into existence during the working relationship between HB and the Customer.

c. The Customer acknowledges and agrees that HB holds in full any and all title or right, whether legal or equitable, and whether existing or registered or not, in or to or in relation to, any Intellectual Property relating to the Business.
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d. The Customer understands that the effect of this clause is that the Customer surrenders any Claim it would or may have otherwise had against HB, or the third parties with whom HB deals, in relation to the Intellectual Property Law, and the Customer hereby forever releases and indemnifies in full HB in relation to any such Claim brought against HB or the said third parties.

e. The Customer also acknowledges and agrees that the Business itself, all content connected with the Business, the processes and functions employed by the Business, the concepts and ideas behind the goods and / or services and any and all marks, trademarks, slogans or similar used in connection with the Business are the sole and exclusive property of HB and must not, under any circumstances whatsoever, and whether in exact or modified form, be used by the Customer or an associated entity of the Customer for commercial
gain of whatever nature.
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f. Unless and until the Customer has made the final payment required by the Order Form and this Deed, the Customer must not, under any circumstances whatsoever, publish or otherwise utilise the products and / or services provided by HB without the prior written consent of HB.
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g. Upon the making by the Customer of the final payment required by the Order Form and this Deed, all Intellectual Property subsiding in the products and / or services provided by HB to the Customer are transferred to the Customer in full,subject to HB retaining a non-exclusive and non- revocable license to use same, and subject to anyIntellectual Property rights retained by a third party, including but not limited to commercial stock image suppliers.h. Any act inconsistent with this clause on the Part of the Customer, including but not limited to a breach or the pursuit of a Claim in relation to the Intellectual Property Law, gives HB an immediate right to terminate this Deed and cancel the Customer’s access to the goods and / or services, without the need to refund or compensate the Customer in any way whatsoever.

13. Relationship of the Parties

Nothing in this Deed is to be construed as constituting the Parties as partners, or as creating between the Parties the relationship of employer and employee, master and servant, or principal and agent, and no Party has (and must not represent that it has) any power, right or authority to bind the other, unless the contrary intention is expressed in the provisions of this Deed.
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14. Variation
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No variation of this Deed will be of any force or effect unless it is in writing and signed by both Parties.
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15. Assignment
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a. The Customer may not assign its rights or obligations under this Deed under any circumstances whatsoever.
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b. In the event that HB merges with another entity, transfers its intellectual property to another entity, or on the occurrence of a similar or like event, the rights and obligations of HB will automatically be assigned and subrogated to the relevant new entity, as the case may be.
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16. Acceptance and Agreement
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The Customer acknowledges and agrees that the Customer was made aware of the terms of this Deed, and physically and / or electronically acknowledged and accepted those terms, by signing the Order Form or otherwise, as a condition precedent to the provision of services by HB.
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17. Document to Enure
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Subject to any express terms of this Deed evincing a contrary intention, all of the clauses of this Deed survive the termination of this Deed for any reason and continue to be binding upon the Parties and enure for the benefit of the Parties.
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18. Entire Agreement
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This Deed embodies the entire agreement between the Parties relating to the subject matter of this Deed, and this Deed supersedes and replaces any prior and / or contemporaneous agreements and understandings between the Parties in that regard.

19. Governing Law and Jurisdiction
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a. This Deed is governed by the law of New South Wales and the Parties:
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i. submit to the jurisdiction of its courts or tribunals and courts of appeal from those courts or tribunals ; and
ii. will not object to the exercise of jurisdiction by those courts or tribunals on any basis.

b. For the avoidance of doubt, clause 18a above is intended to have the effect that any litigious dispute should be heard and determined by a court or tribunal in New South Wales, Australia, and according to the laws applicable in New South Wales, Australia.
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20. Dispute Resolution
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a. If a dispute arises out of or relates to this Deed (including any dispute as to the meaning, performance, validity, subject matter, breach or termination of the Deed or as to any claim in tort, in equity or pursuant to any statute) (“Dispute”) a Party may not commence any court or arbitration proceedings relating to the Dispute unless it has complied with the following paragraphs of this clause, except where the Party seeks urgent interlocutory relief.
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b. A Party claiming that a Dispute has arisen under or in relation to this Deed must give written notice to the other Party specifying the nature of the Dispute.
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c. On receipt of that notice by the other Party, the Parties must endeavour in good faith to resolve the Dispute expeditiously using informal dispute resolution techniques such as mediation, expert evaluation or determination or similar techniques agreed by them.
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d. If the Parties do not agree within seven (7) days of receipt of the notice (or such further period as agreed in writing by them) as to:
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i. The dispute resolution method and/or procedures to be adopted;
ii. The timetable for all steps in those procedures; and
iii. The selection and compensation of the independent person required for such technique;
iv. The Parties must mediate the Dispute in accordance with the Mediation Rules of the Law Society of New South Wales and 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.

e. In the event the Dispute is not resolved by mediation within fourteen (14) days of written notice by one Party to the other of the Dispute (or such further period agreed in writing between theParties), either Party may refer the Dispute to arbitration. The arbitrator shall be agreed between the Parties within ten (10) days of written notice of the referral by the referring Party to the other, or failing agreement such as appointed by the President of the Law Society of New South Wales or the President’s nominee. In either case the arbitrator shall not be a person who has participated in an informal resolution procedure in respect of the Dispute.
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21. Severance
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a. In the event of any covenant or other provision of this Deed being declared invalid, illegal, unlawful or otherwise being incapable of enforcement, all other covenants and provisions of this Deed shall nevertheless prevail and remain in full force and effect.

b. In the event of any such provision being severed the Parties must endeavour to agree upon provisions in substitution for the severed
provision that are not illegal and that substantially express the meaning of the severed provision, as suggested by HB.
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22. Independent Advice

a. The Customer acknowledges and represents to HB that the Customer has obtained, or has had the opportunity to obtain and has elected not to obtain, separate and independent legal, accounting and / or financial advice as to the terms of this Deed and as to any obligations, rights or liabilities that may arise under this Deed.
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b. HB relies on the acknowledgement and representation given in this clause by the Customer.
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23. Absolute bar
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This Deed may be pleaded and tendered by any Party as an absolute bar and defence to any proceeding or Claim brought in breach of the terms of this Deed or otherwise in relation to this Deed.