Terms of Service

Marketplace Platform Terms & Conditions

1 Acceptance & Eligibility

(a) This Agreement is between Khamango Pty Ltd (ABN 22 684 894 620) of 141 Corrimal Street Wollongong, NSW 2500 Australia (Khamango) and the individual or entity (You or Your) that has clicked on the “I agree” button (or similar button or checkbox)(I Agree) that is presented to You prior to accessing the Platform.

(b) This Agreement sets out the terms and conditions under which Khamango will allow you to access and use the Platform. You agree to the terms of this Agreement when You click I Agree.

(c) If you are an individual entering into this Agreement on behalf of your employer or another legal entity, you represent and warrant that: (i) you have full legal authority to bind your employer or such other legal entity to this Agreement; (ii) you have read and understood this Agreement; and (iii) you agree to this Agreement on behalf of the employer or legal entity that you represent. If the foregoing sentence is applicable, any references to “You” in this Agreement shall refer to the employer or legal entity that you act on behalf of. If you do not have the legal authority to bind your employer or the applicable legal entity, please do not click I Agree.

(d) You represent and warrant that You are over the age of 18. If You are not over the age of 18, You must not enter into this Agreement nor access or use the Platform.

(e) If You are using the Platform as a Buyer, all references to a Buyer in this Agreement shall also be a reference to You. If You are using the Platform as a Seller, all references to a Seller in this Agreement shall also be a reference to You.

(f) In order to access and use the Platform, you must enter into the Escrow Agreement with the third-party Escrow Provider who will provide the Escrow Services to You. (g) Capitalised terms used in this Agreement are defined in the body of this document or otherwise have the meanings given at clause 22.

2 Term This Agreement commences on the Commencement Date and shall continue unless terminated in accordance with the terms of this Agreement (Term).

3 Platform 3.1 Marketplace (a) A Seller may, at any time, offer to sell Biodiversity Credits that it lawfully holds for a fee (Sale Price) by posting a listing using the functionality in the Platform (Listing).

(b) A Buyer may, in its absolute discretion, engage with any Listing, which is not a commitment to proceed with the offer in the Listing unless agreement has been reached between a Buyer and Seller through the functionality in the Platform.

(d) A Buyer may make an offer to a Seller to purchase the Biodiversity Credits specified in a Listing. A Seller may accept or refuse any such offer made by a Buyer at its absolute discretion.

(e) If a Buyer and Seller agree to transfer ownership in a Biodiversity Credit in accordance with the terms of a Listing (or as amended by any related communications through the Platform)(Transaction) then: (i) the Buyer must with 14 days transfer the Sale Price, Buyer Fee and any other applicable fees, charges and taxes (Escrow Amount) to the Escrow Provider using the payment details and in accordance with the payment method specified in the Platform; (ii) once the Escrow Provider has notified Khamango that it has received the Escrow Amount from the Buyer, Khamango will notify the Buyer and the Seller through the functionality in the Platform; (iii) once the Buyer and Seller have been notified by Khamango in accordance with clause 3.1(e)(ii): (A) the Buyer and Seller must directly engage and cooperate with each other (not via the Platform) to complete and fully execute the Transfer Form; (B) the Buyer and Seller must then each confirm (by using the functionality in the Platform) that the Transfer Form has been executed; (C) the Seller must then separately lodge the Transfer Form with the Department via the method specified in the Transfer Form (not via the Platform). Once lodged, the Seller must confirm that the Transfer Form has been lodged (by using the functionality in the Platform); (iv) once the Biodiversity Credits have been transferred to the Buyer, the Buyer must promptly confirm the occurrence of the transfer (by using the functionality in the Platform); and (v) after the Buyer has provided its confirmation pursuant to clause 3.1(e)(iv), Khamango will verify that the Transaction has been processed and completed by the Department by searching the public register maintained by the Department. If the Department’s register shows that the Transaction has been processed and completed, then Khamango will notify the Escrow Provider of such fact (Lodgement Confirmation). (f) The Seller may, at its discretion, extend the period within which the Buyer must transfer the Escrow Amount to the Escrow Provider pursuant to clause 3.1(e)(i) by providing notice to the Buyer of such an extension (by using the functionality in the Platform). (g) The Buyer and Seller must each comply with all of the requirements and obligations specified in a Transfer Form, including by paying any applicable application fees to the Department.
(h) If the Buyer does not comply with its obligation at clause 3.1(e)(iv) within 42 days of the Seller’s confirmation under clause 3.1(e)(iii)(C), then the Buyer will be deemed to have provided its confirmation in accordance with clause 3.1(e)(iv). Khamango may, at its discretion, extend the foregoing time period by a further 14 days by providing notice to the Buyer and Seller.

3.2 Transaction cancellations

(a) Either the Buyer or Seller may elect to cancel a Transaction prior to the Buyer complying with its obligations under clause 3.1(e)(i) by notifying Khamango. In this case, neither Khamango nor Escrow Provider will charge the Buyer or Seller any cancellation fees with respect to the cancelled Transaction.

(b) Once the Buyer has complied with its obligations under clause 3.1(e)(i), the Transaction may be cancelled if both the Buyer and Seller provide their consent to Khamango for such cancellation. In this case: (i) Khamango will not charge the Buyer or Seller any cancellation fees with respect to the cancelled Transaction; and
(ii) the Escrow Provider may charge, and the Buyer and Seller must pay, cancellation fees with respect to the cancelled Transaction. (c) Where cancellation fees are payable pursuant to clause 3.2(b)(ii), the Escrow Provider will deduct the cancellation fees from the Escrow Amount and transfer the balance to the Buyer.

3.3 Licence Subject to Your compliance with all of Your obligations under this Agreement:

(a) Khamango grants You a non-exclusive, non-transferable, non-sublicensable and limited right to access and use the Platform within the borders of Australia during the Term solely for the purposes of You buying and selling Biodiversity Credits; and

(b) if permitted pursuant to clause 5.5(b), You may permit Invited Users to access and use the Platform subject to the terms of clause 3.3(a).

3.4 Modification to platform

At any time during the Term Khamango may, at its absolute discretion, update, upgrade, change or modify the functions or features of the Platform (Update). The terms of this Agreement shall continue to apply to any Update made to the Platform.

3.5 Third party applications

(a) The Platform may enable You to link to, integrate with, transfer Customer Data to, or otherwise access, Third Party Applications.

(b) Your access to, or use of, any Third Party Applications is subject to a separate agreement between You and the provider of those Third Party Applications.

(c) You acknowledges that Khamango does not provide nor control Third Party Applications and is not responsible nor liable for any aspect of Third Party Applications that You may procure, access, use or connect to through the Platform.

(d) Khamango may, at its absolute discretion, change, or remove access to, any Third Party Applications. Any such change, or removal of access to, Third Party Applications does not affect Your obligations under this Agreement

4 Escrow Services

4.1 Arrangements with escrow provider

(a) You: (i) represent and warrant that you have validly and lawfully entered into the Escrow Agreements with the Escrow Provider; and (ii) must comply with the terms of the Escrow Agreements at all times.

(b) Any Escrow Services provided to You by the Escrow Provider are exclusively governed by the terms of the Escrow Agreements between You and the Escrow Provider.

(c) You acknowledge and agree that: (i) Khamango does not provide the Escrow Services; and (ii) the Escrow Provider is an independent third party and Khamango does not control the Escrow Provider.

(d) Khamango is not responsible nor liable for: (i) the Escrow Services; (ii) the release of any Escrow Amount; or (iii) the acts or omissions of the Escrow Provider.

4.2 Hold and release of escrow amount

(a) Once the Escrow Amount has been transferred by the Buyer to the Escrow Provider, the Escrow Provider will hold and release the Escrow Amount subject to the terms of the Escrow Agreements.

(b) Once Khamango has provided the Lodgement Confirmation to the Escrow Provider and subject to the terms of the Escrow Agreements, the Escrow Provider will release the Escrow Amount to the Seller less the Buyer Fee, Seller Fee and any other applicable fees, charges and taxes.

5 Your Obligations

5.1 General responsibilities

(a) You must: (i) co-operate with Khamango in relation to the provision of the Platform to You; and (ii) provide Khamango in a timely manner with all information reasonably requested by Khamango to enable it to provide the Platform to You. You must take all reasonable steps to ensure that any information provided in accordance with the foregoing sentence is accurate.

(b) Khamango will not be responsible for any delay or deficiency in providing the Platform if such delay or deficiency results from Your failure to comply with clause 5.1(a).

5.2 Applicable laws

(a) You must comply with all of Your obligations under any applicable Laws, including the Biodiversity Act. Khamango shall not be responsible for Your compliance with any Laws specific to You or Your industry, including the Biodiversity Act.

(b) Seller represents and warrants that it is the lawful holder of all Biodiversity Credits described in its Listings.

5.3 Restrictions You must not, and must not cause nor permit Invited Users or any other person to:

(a) modify, make derivative works of, disassemble, decompile, reverse engineer, reproduce, republish, download, or copy any part of the Platform (including data structures or similar materials produced by programs);

(b) access or use the Platform to build or support, directly or indirectly, products or services competitive to the Platform; or

(c) except as expressly permitted by the Agreement: (i) license, sublicence, sell, transfer, assign, distribute, outsource or commercially exploit the Platform or make it available to any third party; (ii) permit the timesharing or service bureau use of the Platform; or

(d) use the Platform to store or transmit any computer code, file or script designed to damage (or detrimentally interfere with) the Platform or any data including any virus, worm, time bomb or trojan horse.

5.4 Acceptable use policy

(a) You must comply, and must procure that all Invited Users (if applicable) comply, with the Acceptable Use Policy.

(b) Khamango may investigate any suspected violation of the Acceptable Use Policy. You must co-operate with any such investigation including by providing Khamango in a timely manner with all information reasonably requested by Khamango to enable it to conduct the investigation.

(c) In addition to any other rights that Khamango has under this Agreement or at law, Khamango has the right to take remedial action if the Acceptable Use Policy is violated, and such remedial action may include removing, disabling access to, or modifying any material that violates the Acceptable Use Policy. Khamango may report any activity that it suspects violates any Law to any appropriate law enforcement bodies and regulators.

(d) If You wish to complain about information or materials uploaded by other users of the Platform, You may contact Khamango with details of your complaint in accordance with clause 21.6.

5.5 Accounts and invited users

(a) You must register for an account in order to access and use the Platform (Account) by providing, at a minimum, Your full legal name, email address, the full legal name of the organisation that you act on behalf of (if applicable) and any other information reasonably required by Khamango.

(b) If approved by Khamango, You: (i) may, subject to the terms of this Agreement, invite Invited Users to access and use the Platform who must each create an account in order to access and use the Platform (Invited User Account); (ii) must procure that all Invited Users comply with the terms of this Agreement. Any breach of the terms of this Agreement by an Invited User (whether or not authorised by You) is deemed to be a breach of this Agreement by You; (iii) identify all Invited Users and any subset of Invited Users to be designated as administrators, who may create, approve and revoke access for other Invited Users; and (iv) control against unauthorised access to the Platform by all Invited Users.

(c) You are responsible for: (i) maintaining the confidentiality of the Account and all Invited Users Accounts (if applicable) including all names, passwords and account information that are created using the Platform (Credentials); and (ii) all activities that occur using Your Account and all Invited Users Accounts (if applicable) and otherwise as a result of Your or Invited Users’ (if applicable) access to the Platform, whether or not authorised by You.

(d) You must immediately notify Khamango of: (i) any unauthorized access to, or use of, the Platform using Credentials; and (ii) any loss, theft or unauthorized use of any Credentials.

6 Fees

6.1 Billing and payment

(a) Once a Transaction has been processed and completed by the Department: (i) the Buyer must pay the Buyer Fee to Khamango; and (ii) the Seller must pay the Seller Fee to Khamango, in accordance with clause 6.1(c).

(b) After a Transaction has been initiated Khamango will issue: (i) the Buyer with a Tax Invoice for the payment of the Buyer Fee; and (ii) the Seller with a Tax Invoice for the payment of the Seller Fee.

(c) For the purposes of the Buyer and Seller discharging their respective payment obligations pursuant to clause 6.1(a), the Escrow Provider will: (i) on the Buyer’s behalf, deduct the Buyer Fee from the Escrow Amount and transfer such amounts to a bank account nominated by Khamango; and (ii) on the Seller’s behalf, deduct the Seller Fee from the Escrow Amount and transfer such amounts to a bank account nominated by Khamango.

6.2 Changes to fees

(a) Subject to clause 6.2(b), Khamango may, from time to time, change the applicable Buyer Fee or Seller Fee payable by You (Fee Change) upon the provision of at least 90 days’ notice to You (Fee Notice).

(b) The Fee Change will become effective immediately following expiration of the Fee Notice. For the avoidance of doubt, the Fee Change will not apply to any Transactions entered into between a Buyer and Seller prior to expiry of the Fee Notice.

(c) If You object to a Fee Change, You may elect to terminate this Agreement. To exercise this right, You must notify Khamango of termination under this subclause at least 7 days prior to expiry of the Fee Notice.

6.3 GST

Unless otherwise stated, all Fees are exclusive of GST. A Party must pay GST on a Taxable Supply made to it under this Agreement, in addition to any consideration (excluding GST) that is payable for that Taxable Supply. It must do so at the same time and in the same way as it is required to pay the consideration for the Taxable Supply. A Party making a Taxable Supply to another Party under this Agreement must issue a Tax Invoice to the other Party, setting out the amount of the GST payable by that other party. For the purposes of this Agreement, “GST”, “Taxable Supply” and “Tax Invoice” shall have the meaning attributed to those terms in A New Tax System (Goods and Services Tax) Act 1999 (Cth).

7 Warranties

7.1 Mutual warranties

Each Party represents and warrants to the other that:

(a) it has full authority to enter into this Agreement; and

(b) it has, and will maintain throughout the Term, all necessary powers, authority and consents to fully perform its obligations and duties under this Agreement.

7.2 Exclusion of warranty

Subject to clause 7.3, to the maximum extent permitted by law, Khamango does not make any warranties for the Platform. For the avoidance of doubt, Khamango:

(a) disclaims all implied warranties, including any implied warranty of merchantability, satisfactory quality or fitness for a particular purpose;

(b) provides the Platform on an "as is" and "as available" basis; and

(c) does not warrant that: (i) the Platform will be provided error-free or uninterrupted; (ii) the Platform will be compatible with any hardware or software; (iii) Khamango will correct all or any errors in the Platform; or (iv) the Platform will meet Your requirements or expectations.

7.3 Australian consumer law

(a) Nothing in this Agreement is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of Part 5-4 of the Australian Consumer Law, or the exercise of a right conferred by such a provision, or any liability of Khamango in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the Australian Consumer Law to a supply of goods or services. For the purposes of this clause 7.3, “goods” and “services” have the meanings given under the Australian Consumer Law.

(b) If Khamango is liable to You in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 the Australian Consumer Law that cannot be excluded, Khamango’s total liability to You for that failure is limited to, at Khamango’s option: (i) in the case of services, the resupply of the services or the payment of the cost of resupply; and (ii) in the case of goods, the replacement of the goods or the supply of equivalent goods, or the repair of the goods, or the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired.

8 Confidential Information

(a) Subject to clause 8(b), a Party receiving Confidential Information (Recipient) from the other Party (Discloser): (i) must keep the Confidential Information of the Discloser secret, and not disclose or permit its disclosure to any person, except to: (A) its employees, officers and agents who require access to it for the purposes of this Agreement; or (B) to its professional advisers, provided that they are informed of, and comply with, the same obligations of confidentiality regarding that Confidential Information as specified under this clause 8(a); (ii) must only use the Confidential Information of the Discloser for the purposes of this Agreement; and (iii) is responsible for any misuse by its employees, officers, agents or professional advisers of the Discloser’s Confidential Information.

(b) Notwithstanding clause 8(a), a Recipient may disclose Confidential Information of the Discloser: (i) if a disclosure is required by Law, but the Recipient intending to make the disclosure must first notify the Discloser and the Discloser may take action to object to that disclosure; or (ii) to the extent such disclosure is authorised by this Agreement or is necessary for the Recipient to exercise and perform its rights and obligations under this Agreement.

9 Privacy

(a) Khamango handles Personal Information that You disclose to it in accordance with its Privacy Policy. The Privacy Policy is subject to change at Khamango’s discretion and any such change will become effective on the date that it is posted on Khamango’s website.

(b) You must: (i) make all necessary notifications required by applicable Privacy Laws to; and (ii) obtain all necessary consents required by applicable Privacy Laws from, the individuals whose Personal Information You shall disclose to Khamango in the course of this Agreement to enable to Khamango to lawfully use the Personal Information in order to exercise and perform its rights and obligations under this Agreement.

(c) You acknowledge that Khamango is reliant on You for direction as to the extent to which Khamango is entitled to use Personal Information disclosed to it in the course of, and for the purpose of, this Agreement.

10 Customer Data

10.1 Your grant of rights

(a) You grant to Khamango (and its third-party service providers) a non-exclusive right to use, modify, develop, process, publish, disclose and transmit Customer Data as is necessary for Khamango to provide the Platform and to exercise its rights under this Agreement.

(b) You acknowledge that the Platform relies on systems, networks and facilities supplied by third parties. Khamango may supply Customer Data to its third-party service providers to the extent necessary to enable Khamango to provide the Platform and to exercise its rights under this Agreement.

10.2 Third party applications and customer data

You acknowledge that when You enable or use Third Party Applications in conjunction with the Platform, Khamango may allow the providers of those Third Party Applications to access Customer Data as required for the interoperation of such Third Party Applications with the Platform. Khamango will not be responsible nor liable for any use, disclosure, modification or deletion of Customer Data resulting from any such access by providers of Third Party Application.

10.3 Backups

You are solely responsible for preparing and maintaining backups of all Customer Data. Khamango is under no obligation to backup or recover any Customer Data.

10.4 Customer data warranties

You represent and warrant that:

(a) the Customer Data does not, and will not, infringe upon the Intellectual Property Rights of any third party;

(b) You have secured all the necessary rights and consents in the Customer Data as may be necessary for You to grant the rights pursuant to this Agreement; and

11 Intellectual Property

(a) Khamango and its licensors retain all ownership of, and all Intellectual Property Rights in, the Platform.

(b) As between You and Khamango, You and your licensors retain all ownership of, and all Intellectual Property Rights in, the Customer Data.

12 Analyses & Monitoring

(a) Notwithstanding anything to the contrary in this Agreement, Khamango may do any of the following: (i) compile and use anonymised statistical information related to the performance, operation and use of the Platform by You and Invited Users (if applicable); or (ii) collect, store and use Customer Data in aggregated and anonymised form: for security and operations management; to create statistical analyses; for product improvement; and for research and development purposes, (collectively, Analyses).

(b) Khamango retains all ownership of, and all Intellectual Property Rights in, the Analyses.

(c) Notwithstanding anything to the contrary in this Agreement, Khamango may use monitoring tools that may collect, store and use Customer Data for any of the following purposes: (i) to help facilitate Khamango’ operation of the Platform; (ii) to help resolve Your requests related to the Platform; (iii) to help detect and address threats to the functionality, security, integrity, and availability of the Platform and any content, data, or applications in the Platform; or (iv) to help detect and address illegal acts or violations of the Acceptable Use Policy.

13 Feedback

You grant to Khamango a royalty free, worldwide, perpetual, irrevocable, transferable right to use, modify, distribute and incorporate into the Platform (without attribution of any kind) any suggestions, enhancement request, recommendations, proposals, correction or other feedback provided to Khamango by You or any Invited User.

14 Indemnification

14.1 Your obligations

Except to the extent caused or contributed to by Khamango’s negligent act or omission, Khamango’ wilful misconduct or Khamango’s breach of this Agreement, You indemnify and holds harmless Khamango and its Related Bodies Corporate (those indemnified) from and against all Loss incurred or sustained by those indemnified, or for which those indemnified may become liable (whether direct, indirect or consequential and including any economic loss or other loss of profits, business or goodwill) that is caused by, in connection with, or as a result of:

(a) Your breach of clause 4.1 (arrangements with escrow provider);

(b) any dispute between You and a Buyer or Seller (as applicable);

(d) Your breach of clause 5.2 (applicable laws); or

(e) Your infringement of the Intellectual Property Rights of Khamango or its licensors.

14.2 Khamango obligations

(a) If a third party makes a Claim against You that the Your use of the Platform infringes the Intellectual Property Rights of that third party (Third Party Claim), then Khamango must defend You against the Third Party Claim and must indemnify You against any Loss that You have suffered arising as a result of the Third Party Claim.

(b) If You receive a Third Party Claim for which You seeks indemnification under clause 14.2(a), then: (i) You must notify Khamango as soon as reasonably practicable; (ii) Khamango must defend or settle the Third Party Claim at its own cost; (iii) Khamango must obtain Your prior written approval to any proposed settlement or compromise (which must not be unreasonably refused); and (iv) You must provide reasonable assistance as requested by Khamango in defending or settling the Third Party Claim.

(c) Khamango shall have no liability for any Third Party Claim brought against You to the extent that the Third Party Claim arises from: (i) Your breach of this Agreement; (ii) Your modification to the Platform that is not expressly approved by Khamango; or (iii) Your use of the Platform in conjunction with any product or service that is not provided by Khamango.

15 Liability

(a) Except for each Party’s indemnification obligations pursuant to clauses 14, to the maximum extent permitted by law, in no event will a Party or its Related Bodies Corporate be liable to the other Party for any special, indirect or consequential loss arising under, or in connection with, this Agreement including any: (i) loss of profits; (ii) loss of sales or business; (iii) loss of production; (iv) loss of agreements or contracts; (v) loss of business opportunity; (vi) loss of anticipated savings; (vii) loss of or damage to goodwill; (viii) loss of reputation; (ix) loss of data; or
(x) loss of use or corruption of software, data or information.

(b) Subject to clause 15(a) and except for: (i) each Party’s indemnification obligations pursuant to clauses 14; (i) You breach clause 5.3 (restrictions), clause 5.4 (acceptable use policy) or 10.4 (customer data warranties); (ii) Your obligation to pay any applicable Buyer Fee and/or Seller Fee; (iii) fraud committed by a Party, to the maximum extent permitted by law, the entire aggregate liability of a Party (and its Related Bodies Corporate) to the other Party in respect of any Loss arising under, or in connection with, this Agreement whether in contract, tort, or otherwise shall not exceed an amount equal to the total Fees actually paid by You to Khamango under this Agreement during the twelve (12) month period immediately preceding the date of the first event giving rise to such liability.

16 Suspension

(a) Khamango may suspend (Suspension) Your and any Invited User’s (if applicable) access to, or use of, the Platform if Khamango reasonably believes that: (i) there is a significant threat to the functionality, security, integrity, or availability of the Platform or any content, data, or applications within the Platform; or (ii) there is a breach of the Acceptable Use Policy.

(b) When reasonably practicable and lawfully permitted, Khamango will provide You with advance notice of any Suspension. Khamango will use reasonable efforts to re-establish access to, and use of, the Platform but only after Khamango determines that the issue causing the Suspension has been resolved.

17 Termination

17.1 Termination for cause

(a) Either Party may immediately terminate this Agreement by written notice to the other Party: (i) if the other Party commits a material breach of this Agreement that is not rectifiable; (ii) if the other Party commits a material breach of this Agreement that is rectifiable but is not rectified within 20 days of the breaching Party receiving notice from the non-breaching Party requiring it to rectify the breach; (iii) in accordance with clause 18(c)(force majeure); or (iv) if an insolvency event occurs to the other Party.

(b) Either Party may terminate this Agreement without cause upon the provision of at least 30 days’ notice to the other Party.

(c) In addition to clauses 17.1(a) and 17.1(b), Khamango may immediately terminate this Agreement by written notice if: (i) any payment (including any Fees) due from You under this Agreement is not paid; (ii) Your breach of clause 4.1(a)(arrangements with escrow provider); (iii) Your breach of clause 5.2 (applicable laws); or (iv) You breach clause 5.3 (restrictions); (v) You breach clause 5.4 (acceptable use policy); (vi) You breach clause 9 (privacy); or (vii) You breach clause 10.4(a), 10.4(b) or 10.4(c)(customer data warranties); or (viii) You infringe the Intellectual Property Rights of Khamango or its licensors.

17.2 Consequences of termination

(a) Subject to the remainder of this clause 17.2, upon termination of this Agreement pursuant to clause 17.1: (i) Khamango immediately ceases to have any further obligations to provide You with access to, and use of, the Platform. You (and all Invited Users, if applicable) must immediately cease all access to, and use of, the Platform; (ii) You must immediately pay to Khamango all outstanding unpaid Buyer Fees and Seller Fees (as applicable).

(b) Notwithstanding clauses 17.2(a), upon termination of this Agreement pursuant to clause 17.1, the Parties must continue to perform their respective obligations under this Agreement with respect to any Transactions that You entered into with any Buyers and Sellers (as applicable) prior to the effective date of termination until such Transactions are completed or cancelled in accordance with this Agreement.

(c) Any termination of this Agreement will not affect: (i) any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination; and (ii) the provisions specified in clause 21.1 which survive termination.

18 Force Majeure

(a) If a Force Majeure Event occurs and a Party is not able to partially or wholly perform its obligations (Affected Party) under this Agreement, then, the Affected Party’s obligations under this Agreement will be suspended to the extent that the Affected Party is prevented from performing its obligations by the Force Majeure Event, provided that a Force Majeure Event does not relieve or suspend Your obligation to pay Fees pursuant to this Agreement.

(b) The Affected Party must notify the other party as soon as practicable after the Force Majeure Event arises of the occurrence of the Force Majeure Event. The Affected Party must use its reasonable efforts to take steps to overcome the effects of the Force Majeure Event and to resume its obligations under this Agreement as soon as practicable.

(c) If the Force Majeure Event continues for more than 60 days, the Party not affected by the Force Majeure Event may immediately terminate this Agreement by written notice to the other Party.

19 Disputes between the parties

(a) A Party claiming that a dispute has arisen in connection with the Agreement (Dispute) must: (i) not commence court proceedings against the other Party arising from or relating to the Dispute, other than a claim for urgent interlocutory relief, unless that Party has first complied with this clause 19; and (ii) give a written notice to the other Party specifying the nature of the Dispute (Dispute Notice).

(b) The Parties must attempt to resolve the Dispute by convening a meeting (Meeting) within 21 days of the date of receipt of Dispute Notice between director-level representatives appointed by each Party to discuss the possible means and terms of a resolution of the Dispute. If a Party fails to attend the Meeting, the other Party may commence legal proceedings.
20 Disputes between users

(a) Khamango will not mediate, determine or otherwise become involved in any disputes between You and any other Buyer or Seller (as applicable)(User Disputes).

(b) To the maximum extent permitted by law, You release Khamango from all Losses arising out of, or in any way connected with, User Disputes. Subject to the other terms in this Agreement, this release does not apply where Khmanago’s acts or omissions directly caused the matters giving rise to the User Dispute.

21 Other Terms

21.1 Survival

The following clauses of this Agreement survive termination of this Agreement; clause 8 (confidential information), clause 9 (privacy), clause 13 (feedback), clause 14 (indemnification) clause 15 (liability), clause 17.2 (consequences of termination), clause 19 (dispute resolution), clause 21 (other terms) and clause 22 (definitions).

21.2 Interpretation

(a) Nothing in this Agreement is to be interpreted against a Party solely on the ground that the Party prepared this Agreement or a relevant part of it.

(b) The following rules apply to interpreting this Agreement: (i) Headings are for convenience only and do not affect interpretation. (ii) Mentioning anything after includes, including, or similar expressions, does not limit what else might be included. (iii) The singular includes the plural, and the converse also applies. (iv) If a word or phrase is defined, its other grammatical forms have a corresponding meaning. (v) A reference to legislation or to a provision of legislation includes any modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it. (vi) The singular includes the plural, and the converse also applies. (vii) A reference to dollars and $ is to Australian currency.

21.3 Subcontractors

Khamango may at its discretion appoint or engage any subcontractor in connection with the performance of its obligations under this Agreement (including the provision of the Platform).

21.4 Assignment

Neither Party may novate, assign or transfer any of its rights and/or obligations under Agreement without the prior written consent of the other Party. Notwithstanding the foregoing, Khamango may, upon written notice to You, assign or novate any of its rights and/or obligations under this Agreement to: (a) a Related Body Corporate; or (b) a third party that acquires all or substantially all of Khamango’ business or assets; or (c) a third party that participates in a merger with Khamango. You hereby consent to the foregoing assignment or novation and must execute and deliver any further documents and do all acts and things as may be required by Khamango to give effect to such assignment or novation.

21.5 Relationship

The relationship between the Parties under this Agreement is that of independent contractors. This Agreement does not create any joint venture, partnership, agency or employment relationship between the Parties.

21.6 Notices

(a) Unless specified otherwise, a notice, consent, approval, waiver or other communication (notice) in connection with this Agreement must be in writing and must be given to the receiving Party as follows:

Khamango: info@khamango.com.au You: Via the email address that You provided when registering the Account.

(b) A notice is regarded as given and received the next business day after the time it is sent (as recorded on the device from which the sender sent the notice) unless the sender receives an automated message that the email has not been delivered. 21.7 Amendment

(a) Khamango may, from time to time, update or modify the terms of this Agreement (excluding the Fees)(Amendment) by providing You with at least 90 days’ notice (Period). Amendments will take effect immediately following the expiry of the Period. For the avoidance of doubt, the Amendment will not apply to any Transactions entered into between a Buyer and Seller prior to expiry of the Period.

(b) If You object to an Amendment under clause 21.7(a), You may elect to terminate this Agreement. To exercise this right, You must notify Khamango of termination under this subclause at least 7 days prior to expiry of the Period.

21.8 No waiver

A failure to exercise or a delay in exercising any right, power or remedy under this Agreement does not operate 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.

21.9 No reliance

No Party has relied on any statement, representation, assurance or warranty made or given by any other Party, except as expressly set out in this Agreement.

21.10 Entire agreement

This Agreement embodies the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes any prior negotiation, arrangement, understanding or agreement with respect to the subject matter or any term of this Agreement.

21.11 Governing law

This Agreement is governed by the substantive and procedural laws of the State of New South Wales, Australia and the Parties agree to submit to the exclusive jurisdiction of, and venue in, the courts in New South Wales, Australia in any dispute relating to this Agreement.

21.12 Severability

If anything in this Agreement is unenforceable, illegal or void, then it is severed and the rest of this Agreement remains in force.

22 Definitions

The following definitions apply:

Acceptable Use Policy means the policy attached as a Schedule to this Agreement.

Agreement means, this Marketplace Platform Terms & Conditions (including the Acceptable Use Policy).

Australian Consumer Law means the Australian Consumer Law contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth).

Biodiversity Act means the Biodiversity Conservation Act 2016 (NSW).

Biodiversity Credit has the meaning given in the Biodiversity Act.

Buyer means any User who uses the Platform with an intent to purchase Biodiversity Credits.

Buyer Fee means the fees payable by a Buyer to Khamango in accordance with clause 6.1 and as specified in the Platform prior to a Buyer proceeding with a Transaction.

Claim means any claim, action, proceeding or investigation.

Commencement Date means the date that You click I Agree.

Confidential Information means any information disclosed in the course of this Agreement which is confidential or proprietary in nature to a Party including any: (a) Customer Data; or (b) information relating to a Party’s operations, processes, plans, know-how, designs, trade secrets, market opportunities and customer lists. Confidential Information does not include information that: (a) is in the public domain (unless it entered the public domain through breach of confidentiality by a Party); (b) is already known by the other Party at the time of disclosure and has not been obtained by the other Party either directly or indirectly from the disclosing party; or (c) is obtained lawfully from a third party without any restriction on the disclosure.

Corporations Act means the Corporations Act 2001 (Cth).

Customer Data means all data (including Personal Information), text, information, images, audio, video, photographs, and other content and material, in any format, provided by You or Invited Users (if applicable) that is uploaded, stored in, or run through, the Platform. Customer Data does not include any Confidential Information of Khamango.

Department means the New South Wales Department of Planning and Environment (and its successors).

Escrow Agreements means the agreements between You and the Escrow Provider governing the provision of Escrow Services to You.

Escrow Provider means CheckVault Pty Ltd (ABN 46 159 355 781).

Escrow Services means: (a) the escrow services provided by the Escrow Provider by which a Buyer and Seller can arrange for the Escrow Provider to hold and distribute amounts due by a Buyer to a Seller pursuant to a Transaction; and (b) any other services provided by the Escrow Provider to You.

Fees means the Buyer Fee and Seller Fee.

Force Majeure Event means any act, event or cause, other than lack of funds, affecting a Party that is outside that Party’s reasonable control, including, but not limited to: war; acts of God; natural disasters; epidemics; pandemics; boycotts; labour strikes; industrial disturbances; internet outages; or telecommunications outage.

Intellectual Property Rights means all present and future intellectual property or other proprietary rights including copyright, registered and unregistered trademarks, designs, patents and any rights in respect of inventions, circuit layouts, computer programs, business or domain names, know how, trade secrets, arising anywhere in the world and whether registered or unregistered and includes any moral rights.

Invited Users means Your employees, consultants, contractors and agents who are authorised by You to use the Platform pursuant to this Agreement.

Law means any statute, regulation or other statutory provision.

Loss means any loss, damage, liability, penalty, charge, claim, expense or cost (including legal fees) of any nature or kind.

Party means a party to this Agreement and “Parties” means both of them.

Personal Information has the same meaning as under the Privacy Laws.

Platform means the Khamango web-based software application further described at the Website that helps facilitates the sale of Biodiversity Credits by Sellers to Buyers via a digital marketplace. The Platform excludes the Escrow Services and Third Party Applications.

Privacy Laws means the Privacy Act 1988 (Cth)(including the Australian Privacy Principles) as amended from time to time, and any other equivalent legislation, regulations, binding principles, industry codes and guidelines or ancillary regulations relating to privacy or the handling of Personal Information to which You are subject by Law.

Privacy Policy means Khamango’s privacy policy available at https://khamango.com.au/privacy-policy as updated or amended from time to time.

Related Body Corporate has the same meaning as under the Corporations Act. “Related Bodies Corporate” is to be interpreted accordingly.

Seller means any User who uses the Platform to offer to sell Biodiversity Credits.

Seller Fee means the fees payable by a Seller to Khamango in accordance with clause 6.1 and as specified in the Platform prior to a Seller proceeding with a Transaction.

Third Party Applications means applications, software, websites, integrations or services provided by an entity other than Khamango that interoperate with the Platform or may be accessed through, within, or in conjunction with Your use of the Platform.

Transfer From means the form made available by the Department pursuant to the Biodiversity Act which must be completed and lodged by a Buyer and Seller of a Transaction in order to apply to the Department to transfer the Biodiversity Credits to the Buyer.

User means a person or other legal entity who registers an Account on the Platform for the purpose of being a Buyer or Seller (or any combination of those).

Website means https://khamango.com.au/.

Schedule – Acceptable Use Policy

You must not, and must not permit any Invited User or any other person to, do any of the following:

(a) use any spider, robot or search/retrieval application or any screen scraping, data mining or similar data gathering device, process, program or means to access, retrieve or index any portion of the Platform;

(b) engage in any action that requires, or may require, an unreasonable or excessively large load on the Platform or its hardware infrastructure;

(d) use the Platform to violate any applicable Laws;

(e) access or use the Platform to commit a fraudulent act;

(f) attempt to gain unauthorised access to the Platform or its related systems or networks;

(g) with respect to the Platform, perform or disclose any: performance or vulnerability testing, network discovery, port and service identification, vulnerability scanning, password cracking or penetration testing;

(h) perform or disclose any benchmarking, availability or performance testing of the Platform; (i) use the Platform to: (i) harass any person; (ii) engage in cyber-bullying; (iii) transmit, store or share: (A) any non-consensual intimate images of a person; (B) material that is pornographic; (C) cyber-abuse material; (D) material that promotes, incites, instructs or depicts abhorrent violent conduct or illicit drug use; (E) material that is rated X18+ or R18+ under the Australian National Classification Scheme; (F) child sexual exploitation and abuse material; (G) material that advocates terrorism;

(j) engage in predatory conduct to prepare a child or young person for sexual activity at a later time;

(k) cause damage or injury to any person or property;

(l) promote dangerous ‘viral’ activities that have the potential to result in real injury or death;

(m) engage in hate against a person or group of people on the basis of race, ethnicity, disability, religious affiliation, caste, sexual orientation, sex, gender identity, disease, immigrant status, asylum seeker or refugee status, or age;

(n) promote bigotry, racism, hatred or harm;

(o) promote suicide or self-harm;

(p) publish any material that is false, defamatory, harassing or obscene;

(q) violate privacy rights;

(r) send unsolicited bulk e-mail or junk mail;

(s) infringe the intellectual property rights of any person;

(t) impersonate any person or entity or falsely state or otherwise misrepresent the Your affiliation with a person or entity;

(u) engage in conduct that is likely to deceive any person;

(v) cause annoyance, inconvenience or needless anxiety to any person; or

(w) engage in activity that is likely to upset, embarrass, alarm or annoy any other person.