ARCHISTAR PILOT TERMS AND CONDITIONS

These are the standard terms and conditions (“Agreement”) that apply when you (“Client”) contract with Archistar Pty Ltd (Australian Business Number 62 143 137 115) (“Archistar”) to provide online subscription services and other services (“Services”) to you (“Client”).

1 OVERVIEW

Archistar is engaged in the business of developing and commercialising property software solutions and is a world leading provider in the use of AI based generative design solutions.
This Agreement is to enable Customer to pilot and test a subset of Archistar’s technology on a limited trial basis.
If Customer wishes to continue to use Archistar’s technology at the end of the pilot period, Archistar and Customer must agree upon terms of an agreement allowing Customer to do so.
This Agreement includes these standard terms and the details set out in the Proposal that are relevant to the pilot where the Proposal references these standard terms.
To be valid, a Proposal must be agreed by both parties and signed by Customer.
In the event of any express inconsistency, the provisions of the Proposal will prevail over these standard terms.
Unless otherwise stated by Archistar in writing, Proposals are valid for acceptance for 60 days only.

2 TERM

The Term of the pilot is set out in the Proposal.

3SERVICES
3.1 The Services

The Services to be provided by Archistar to Client are specified in the Proposal.
Unless otherwise stated in the Proposal, for software, the Services will be provided online by way of Software as a Service. Software will not be physically delivered to Client and will not be loaded onto Client’s computer systems.
Archistar will provide the Services in a professional manner in accordance with good industry practice for a pilot.
Archistar will perform the Services in an efficient and expeditious manner and will ensure that all persons performing any Services are properly trained, qualified and experienced to perform the Services.
In providing the Services, Archistar will:
1. comply with all relevant Laws; and
2. comply with all reasonable directions of Client in connection with the provision of the Services.

3.2 Cooperation

Archistar will act in a professional and cooperative manner when dealing with Client.
The parties will always act reasonably and in good faith when dealing with each other.
If Archistar is required by Client to work with other suppliers or contractors of Client, Archistar will act cooperatively and in a friendly manner when doing so.
When Archistar attends Client’s premises, Archistar will comply with Client’s relevant policies and directions known or made known to Archistar including health and safety policies.
Senior representatives from both parties will formally meet every month to monitor progress of the pilot under this Agreement. These meetings may take place by electronic conferencing technology.
Client will cooperate with Archistar in supplying the Services.
Client will comply with all reasonable requests or directions of Archistar for the purpose of facilitating the supply of the Services.
Client agrees to prepare for and attend scheduled or agreed meetings, and actively participate in such meetings as required.
Client’s Personnel who attend such meetings must be knowledgeable about the issues relevant to Client that are agenda items for such meetings.
Where Client is required to review or approve a document or other item, Client must do so promptly and if required must provide detailed and considered feedback to Archistar.
If the relevant requirements, project plans, schedule, specifications, scope, design, software, hardware, or system environment or architecture are changed by Client or any other person, Archistar is not responsible for the change unless Client and Archistar specifically consent to the change, scheduling and additional charges, if any, in writing.

3.3 Timeframes

Archistar will supply the Services with the aim to meet any time frames set out in the Proposal. Unless otherwise stated, all dates in the Proposal in respect of the pilot are approximate.

3.4 Customer Accounts

To access any software or databases provided as a service as part of the Service, Customer must establish one or more customer user accounts, each with a user name and password. Customer may only establish customer user accounts for its employees, contractors and consultants (“Customer End Users”). Customer must not establish customer accounts for people who are not its employees, contractors or consultants.
Each Customer End Users must have their own user account and must not allow others to access the software via that Customer End User’s user account. User accounts, access credentials and passwords must not be shared.
Customer must ensure that user names, access credentials and passwords for its Customer End Users are kept confidential and secure.
Customer is responsible for all use and activities that occur under the user accounts of Customer End Users, regardless of whether such use and activities are authorized by Customer.
Archistar is not responsible for unauthorized access to Customer’s account unless such unauthorized access is the result of Archistar failure.
Customer is responsible for Customer End Users’ use of the software.
Customer must ensure that all Customer End Users comply with Customer’s obligations under this Agreement. Archistar may require that each Customer End User agree with legal terms that are not inconsistent with this Agreement before using the software.
If Customer becomes aware of any violation of Customer’s obligations under this Agreement caused by a Customer End User, Customer will immediately suspend access to the software by such Customer End User and inform Archistar.

4PILOT

Customer acknowledges that this Agreement is for a pilot, and the Services provided in the pilot do not represent the full functionality or service quality that can be provided by Archistar.
Customer will provide regular feedback to Archistar regarding Customer’s opinions regarding the pilot and the Services.

5PRESS RELEASE

The parties do not intend to issue a press release regarding the pilot.
Neither party will make public statements about the pilot or the success or otherwise of the pilot unless both parties agree and approve the public statement.

6FEES AND PAYMENTS

The Fees and the timing of payments are set out in the Proposal.
Archistar may only issue invoices to Client in accordance with the terms of this Agreement and in accordance with any timeframes for invoicing or payment set out in the Proposal. If the Proposal is silent on this, then Archistar will issue invoices at the end of each month.
Client must pay the Fees set out in each invoice within 14 days of receipt, in accordance with this clause 6.
If Archistar agrees to provide Client with Services subject to a subscription, Archistar will invoice Client in instalments, upfront for the entire term of the subscription as specified in the Proposal, and then upon each renewal if applicable. In case of termination or cancellation of purchased subscription services during the term, Archistar will not refund the price for the remainder of the term.
If Client cancels or postpones an appointment for the performance of all or part of the Services less than 48 hours in advance, or the performance of the Services is not possible due to Client’s failure to comply with clause 3 above, then Archistar will be entitled to invoice Client for lost time or waiting time being a minimum of 8 hours.
All payments made are non-refundable.
The Fees exclude any taxes, sales tax or duties payable in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by Archistar, Customer must pay to Archistar the amount of such taxes or duties in addition to any fees owed under this Agreement.
Notwithstanding the foregoing, if Customer has obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed, Customer may provide Archistar with such exemption information, and Archistar will use reasonable efforts to provide Customer with invoicing documents designed to enable Customer to obtain a refund or credit from the relevant revenue authority, if such a refund or credit is available.
Customer will pay all fees net of any applicable withholding taxes. The parties will work together to avoid any withholding tax if exemptions, or a reduced treaty withholding rate, are available. If Archistar qualifies for a tax exemption, or a reduced treaty withholding rate, Archistar will provide Customer with reasonable documentary proof. Customer will provide Archistar reasonable evidence that Customer has paid the relevant authority for the sum withheld or deducted.
If Customer is in the United States, Archistar notifies Customer of THE DOUBLE TAXATION TAXES ON INCOME CONVENTION BETWEEN THE UNITED STATES OF AMERICA AND AUSTRALIA, available at https://www.irs.gov/pub/irs-trty/aus.pdf.

7 INTELLECTUAL PROPERTY

No Background IP of a party or an Affiliate of a party is transferred or assigned to the other party by virtue of this Agreement. A party must not assert ownership over the other party’s Background IP.
The platform technology (and the Intellectual Property Rights therein) is owned by Archistar.
The data submitted into the platform by Customer (and the Intellectual Property Rights therein) is owned by Customer.
Customer grants to Archistar a perpetual license to store, use and modify the data input into the platform by Customer to improve the platform, for data analytics and to create data products, but in doing so Archistar must not anonymize the data.
The electronic version of any Customer planning codes created by Archistar is owned by Archistar.
Each party must not infringe Intellectual Property Rights when carrying out its obligations under this Agreement.
If a party provides any works to the other party pursuant to this Agreement, that party warrants that the other party’s use of such works as contemplated by this Agreement will not infringe any Intellectual Property Rights.
Customer must ensure that any data input by Customer into the system does not infringe any Intellectual Property Rights or privacy rights or breach any Laws.
Customer’s rights under this Agreement are only for the period of the pilot.

8 CONFIDENTIALITY

Each party agrees to keep strictly confidential, and not to disclose, the Confidential Information of the other party.
Unless otherwise agreed, Archistar agrees to use the Confidential Information of Client solely to carry out Archistar’s obligations under this Agreement.
Unless otherwise agreed, Client agrees to use the Confidential Information of Archistar solely to receive the benefit of this Agreement.
Notwithstanding the foregoing, a party may disclose Confidential Information of the other party:
1. to its legal advisors, accountants, auditors on a confidential need-to-know basis;
2. to its Personnel on a confidential need-to-know basis;
3. in enforcing this Agreement or in a proceeding arising out of or in connection with this Agreement; or
4. to the extent required by Law or pursuant to a binding order of a government agency or court.
Client acknowledges that Client may obtain access to Archistar Confidential Information.

9 FORCE MAJEURE

Subject to the requirement to give notice under this clause, if the performance by any party (Affected Party) of all or any of its obligations under this Agreement is prevented or delayed (in whole or in part) due to any Force Majeure Event, this Agreement will continue and remain in effect but the Affected Party will not be in breach of this Agreement for that reason only, and the Affected Party will be granted a reasonable extension of time to complete performance of its affected obligations.
The Affected Party must promptly after becoming aware of a Force Majeure Event, give written notice to the other party of the nature of the Force Majeure Event and the way and the extent to which its obligations are prevented or delayed and notify the other party of any material change in these matters and use its reasonable endeavours to limit the effects of the Force Majeure Event, and promptly carry out its obligations as soon as, and to the extent that, it is able to do so.

10 TERMINATION

Either party may terminate this Agreement with immediate effect by giving written notice to the other party at any time if:
1. the other party breaches any material provision of this Agreement which is incapable of being remedied, or where the breach is capable of being remedied, fails to remedy the breach within 21 days after receiving written notice from the terminating party requiring it to do so; or
2. on 60 days written notice to the other party, without cause.
Client may not terminate this Agreement or the Proposal other than as set out above.
Client may not suspend the pilot without Archistar’s written consent. Archistar may suspend provisions of the Services if Client is overdue on payment of Fees by more than 21 days.
At the end of the pilot period, Client must cease use of the Services, unless otherwise agreed by Archistar.

11 WARRANTIES

Each party warrants to the other party that it:
1. has the authority to enter into and perform its obligations under this Agreement and that this Agreement has been duly executed and is a legal, valid and binding Agreement;
2. will comply with applicable Laws; and
3. will not make any statement that could be reasonably expected to harm the reputation of the other party.
Each party enters into this Agreement in reliance upon these warranties.

12 DISCLAIMERS AND LIMITATIONS ON LIABILITY

EXCEPT TO THE EXTENT PROHIBITED BY LAW, OR TO THE EXTENT ANY STATUTORY RIGHTS APPLY THAT CANNOT BE EXCLUDED, LIMITED OR WAIVED, OR TO THE EXTENT EXPRESSLY SET OUT IN THIS AGREEMENT, ARCHISTAR (A) MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICES, AND (B) DISCLAIMS ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES (I) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR QUIET ENJOYMENT, OR (II) ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.
Except to the extent prohibited by Law, Archistar limits its liability (at Archistar’s option) to:
1. supplying of the Services again; or
2. payment of the cost of having the Services supplied again.
Except to the extent prohibited by Law, neither party will be liable to the other party for any Consequential Loss suffered or incurred by the other party whether in contract, tort (including negligence) or otherwise in connection with the Agreement, even if a party has been advised of or is aware of the possibility of such damage.
Subject to clause 12(e), except to the extent prohibited by Law, the maximum liability of either party, whether in contract, tort (including negligence) or otherwise in connection with the Agreement (including under an indemnity), is limited to the amount specified in the Proposal, and if no amount is specified, then is limited to US$10,000.
The limitation of liability in clause 12(d) does not apply to liability in relation to:
1. personal injury, including sickness and death;
2. an infringement of Intellectual Property Rights;
3. any fraudulent act or omission;
4. any obligation to pay Fees or taxes to Archistar.
Without limiting any other provision of this Agreement, Archistar is not liable to Client or any other person to the extent that the Services do not result in any savings.
The parties agree that the waivers and limitations specified in this clause 12 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
A party who suffers loss or damage must use reasonable steps to mitigate their loss. The other party will not be responsible for any loss, damage or expenses to the extent that the injured party could have avoided or reduced the amount of the loss, damage or expense, by taking reasonable steps to mitigate their loss.
Archistar’s liability under this Agreement will be reduced proportionally to the extent to which any Loss was caused or contributed to by any negligence or wilful misconduct of Client or Client’s Personnel.
On request by Client, Archistar may provide Client with contact details of or refer Client to third party specialists. Client may refuse any referred third-party service or referral. Archistar makes no representation or warranty about any third-party advice or provision of services by such a referred third-party. Archistar accepts no responsibility or liability for any Loss that Client or any person may suffer or incur due to any third-party advice, product or provision of services, or the third-party’s failure to advise or provide services.
Archistar may:
1. Provide commissions or benefits to referral partners in exchange for them referring potential clients to Archistar; and
2. Receive commissions or benefits for the referral of potential clients to referral partners.

13 ASSIGNMENT

A party must not assign or novate, directly or indirectly, any of its rights or obligations under this Agreement without the prior written consent of the other party which must not be unreasonably withheld or delayed.
However, Archistar may assign this Agreement in connection with the sale or reorganisation of all or part of Archistar’s business.

14 SUBCONTRACTING

Archistar may subcontract some or all of Archistar’s obligations under this Agreement.
If Archistar does so, Archistar is responsible for the conduct of the subcontractor.

15 SURVIVAL

Without limiting any other provision of this agreement, clauses 7, 8, 10 and 12, and any other clauses which should by their nature survive termination of this Agreement, survive termination or expiry of this Agreement for any reason.

16 CONFLICTS OF INTEREST

Each party represents to the other that neither it, nor any of its representatives have been induced to enter into this Agreement, or to cause this Agreement to be entered into, as a result of any illegitimate gift, consideration or other benefit paid by a person to any other person.
Each party must take appropriate steps to ensure that the other party is not placed in a position where there is or may be an actual conflict, or a potential conflict, between the pecuniary or personal interests of a party, its officials, officers or Personnel under this Agreement. The parties will disclose to each other the full particulars of any such conflict of interest which may arise.

17 GENERAL

This Agreement contains the entire agreement between the parties with respect to its subject matter.
This Agreement may only be amended only by another written agreement executed by both parties.
No failure to exercise or delay in exercising any right, power or remedy under this Agreement operates as a waiver. A single or partial exercise or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the party granting that waiver unless made in writing.
The rights, powers and remedies provided to a party in this Agreement are in addition to, and do not exclude or limit, any right, power or remedy provided by Law or any other agreement.
This Agreement does not create a relationship of employment, agency, partnership or trust between the parties. Unless explicitly stated in a written agreement, a party has no authority to bind the other party to any legal obligations.
Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction is ineffective as to that jurisdiction to the extent of the prohibition or unenforceability. That does not invalidate the remaining provisions of this Agreement nor affect the validity or enforceability of that provision in any other jurisdiction.
Any claim for breach of contract or breach of warranty must be notified to the other party within 90 days of the breach occurring, and any lawsuit relating to such breach must be filed within 1 year of the breach occurring.
Each party must bear its own costs arising out of the negotiation, preparation and execution of this Agreement.
This Agreement does not create any third-party beneficiary rights in any individual or entity that is not a party to this Agreement.
Unless stated otherwise in the Proposal, this Agreement and, to the extent permitted by law, all related matters including non-contractual matters, is governed by the laws of the State of NSW, Australia. In relation to such matters each party irrevocably accepts the non-exclusive jurisdiction of the Federal and State courts within the State of NSW and waives any right to object to the venue on any grounds.

18 DEFINITIONS AND INTERPRETATION
18.1 DEFINITIONS

The following definitions apply unless the context requires otherwise.

Affiliate means any person that directly, or indirectly through one or more intermediaries, owns or controls, is owned or is controlled by, or is under common ownership or control with, the specified person.

Background IP means the Intellectual Property Rights of a party or an Affiliate of a party that exists as at the Commencement Date.

Consequential Loss means any indirect or consequential Loss, including any loss of profits, loss of revenue, loss of or damage to data, loss of contract value, loss of anticipated savings, loss of opportunity, and loss of reputation or goodwill.

Confidential Information means all non-public business or technical information, in any form whether tangible or not, disclosed or communicated by a party to the other, or learnt or accessed by, or to which the other party is exposed as a result of entering into this Agreement.

Confidential Information does not include information which party can demonstrate by written records was:

already known to that party;
received by that party from a third party not under a duty of confidence; or
independently developed by that party by people who did not have access to the Confidential Information of the other party.

Fees means the fees and expenses set out in the Proposal.

Force Majeure Event affecting a party means a circumstance beyond the reasonable control of that party causing that party to be unable to observe or perform on time an obligation under this Agreement, including acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage, revolution and acts of war and war, general strikes (other than of its own staff), embargo, or power, water and other utility shortage.

Intellectual Property Rights means all industrial and intellectual property rights of any kind including but not limited to copyrights (including rights in computer software), trade marks, service marks, designs, patents, trade secrets, semi-conductor or circuit layout rights, trade, business, domain or company names, rights in Confidential Information, know how and other proprietary rights (whether or not any of these are registered and including any application, or right to apply, for registration) and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these, which may subsist anywhere in the world, but excludes moral rights, and similar personal rights, which by law are non-assignable.

Law means all applicable laws including rules of common law, principles of equity, statutes, regulations, proclamations, ordinances, by laws, rules, regulatory principles, requirements and determinations, mandatory codes of conduct and standards, writs, orders, injunctions and judgments.

Loss means any claim, loss, damage, liability, cost, charge or expense (including legal expenses on a full indemnity basis), however arising, and whether present or future, fixed or unascertained, actual or contingent.

Personnel means, in respect of a person, any officer, employee, contractor, servant, agent or other person under the person’s direct or indirect control and includes any subcontractors.

Proposal means the document produced by Archistar titled “Proposal” that refers to these Terms and Conditions and that is signed by Client.

Services is defined in the Proposal.

Specifications are set out in the Proposal.

Term means the period from the Commencement Date for the pilot period set out in the Proposal.

Archistar Pty Ltd
Mezzanine Level, 388 George Street,
Sydney, NSW 2000 Australia

ABN 62 143 137 115
Last Revised September 1, 2023

www.archistar.ai