Maintenance Terms and Conditions

A. The Customer wishes to procure AMR software upgrades, ongoing system testing and diagnostics, including system repairs and maintenance (“the Services”).

B. Carbon EMT shall provide the Services to the Customer in accordance to the terms and conditions of this Agreement.

C. The Agreement is offered to the Customer to facilitate a connection to I-Utility.

THE PARTIES COVENANT AND AGREE:

1. Definitions and Interpretation

1.1 In this Agreement, unless the contrary intention appears:

Act means the Electricity Industry Act 2004 (WA); read in conjunction with the Energy Corporations Powers Act 1974 (WA) and the Western Australian Electricity Requirements;

Additional Charge means a charge in accordance with Carbon EMT’s standard rate in effect from time to time;

AMR means the Customer’s automated meter reading system and includes all wiring, apparatus, software or other works located up to the Gate Meter and which are used for, or in connection with, the supply of electricity to the Site.

Agreement means this agreement for the provision of the Services, including the Schedules and any annexures;

ASOF means AMR Service Order Form for requisition by the Customer for its required Services as per the form set out in Schedule 3;

Business Day means a day other than a Saturday or Sunday on which banks are open for business generally in the place specified in the Details;

Carbon EMT means Carbon Energy Management Technologies Pty Ltd, Carbon EMT for the purposes of this Agreement;

Charges means the charges for the Services specified in Schedule 2;

Claims means all demands, claims, proceedings, fines and liability (whether criminal or civil, in contract, tort or otherwise);

Commencement Date means the date specified in the Details;

Confidential Information means the confidential information of a Party which relates to the subject matter of this Agreement and includes:

(a) confidential information relating to the technology and design of the System;

(b) confidential information relating to the Meter Readings;

(d) information relating to the terms upon which services are provided to the Customer pursuant to this Agreement;

(e) the Meter Readings;

(f) the personnel, policies or business strategies of the Customer;

(g) the terms upon which Carbon EMT’s services are provided pursuant to this Agreement;

Customer means the Party so described in the Details;

Customer’s Obligations means the obligations on the part of the Customer expressed or implied in this Agreement or at law;

Details mean the details on page 1 of this Agreement;

Distributor means a person who holds a distribution licence under Part 2 of the Act;

Embedded Network means a Network that is capable of enabling:

(a) the Customer to enter into a contract for the purchase of electricity from a Distributor for on sale to Members: and

(b) Carbon EMT to provide the Services;

Fee or Charge means fees for the provision of the Services or any part thereof at the rates set out in Schedule 2;

Force Majeure means a circumstance beyond the reasonable control of the Parties which results in a Party being unable to observe or perform on time an obligation under this Agreement. Such circumstances shall include but shall not be limited to:

(a) acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster;

(b) acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution; and

Gate Meter means the meter that measures the consumption of electricity by the Customer;

Goods mean Goods supplied by Carbon EMT to the Buyer (and where the context to permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by Carbon EMT to the Buyer;

Initial Term means the Services period specified in the Details;

Investigation Fee means the fee payable by the Customer to Carbon EMT specified in Schedule 2;

Maintenance Fee means the fee payable by the Customer to Carbon EMT for the maintenance of the System (or any part of it);

Maintenance and Support means those Services set forth in clause 9.4 of this Agreement.

Members mean residents or occupants of the Customer;

Meter means the meter that measures the consumption of electricity by a Member;

Meter Readings means the meter readings to which Carbon EMT is provided access pursuant to this Agreement or data which may otherwise be generated, compiled, arranged or developed on the System by Carbon EMT pursuant to this Agreement;

Network means the network by which the Customer is supplied with electricity and may be a Utility Network or an Embedded Network;

Order means order made under section 8(1) of the Act;

Party means either Carbon EMT or the Customer as the context dictates;

Policy means the “WPC Policy and Technical Requirements for Automatic Meter Reading (AMR) Systems” document issued by Western Power, as amended from time to time;

Related Entity(ies) has the meaning given in section 9 of the Corporations Act 2001 (Cth);

Schedule means a schedule to this Agreement;

Services mean all Services supplied by Carbon EMT to the Buyer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above);

Services Fee means the fees payable by the Customer to Carbon EMT for the Services provided by Carbon EMT;

Service Provider means any third party contracted by Carbon EMT to provide additional Maintenance and Support;

Site means the site specified in the Details;

Supplier means the Party so described in the Details;

System Fee means the fees payable by the Customer to Carbon EMT for the provision of the Service) or any part of it) and at the Rates and Charges set out in Schedule 2;

Tariff means the tariff complying with any conditions imposed by an Order set from time to time by Synergy;

Term means the Initial Term and any Renewed Term of this Agreement pursuant to clause 2;

Western Power Corporation means the electricity network corporation trading as Western Power (ABN 18540492861).

1.2 In this Agreement, unless the contrary intention appears:

(a) The clause headings are for ease of reference only and will not be relevant to interpretation;

(b) A reference to a clause number is a reference to its sub-clauses;

(c) Words in the singular include the plural and vice versa;

(d) Words importing a gender include any other gender;

(e) A reference to a person includes bodies corporate and unincorporated associations and partnerships;

(f) Where a word or a phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;

(g) A reference to a schedule includes a reference to any part of that schedule which is incorporated by reference;

(h) The recitals for this Agreement do not form part of the Agreement;

(i) Dollars references are references to Australian currency;

(j) A reference to any Act of Parliament includes any amendments or re-enactment of the same or regulations made under that Act;

(k) An obligation on the part of two or more persons bind them jointly and severally;

(l) A reference to a party to this Agreement includes that party’s executors, administrators, nominees and assigns;

(m) When the date or last day for doing an act is not a Business Day, the day or last day for doing the act will be the next following Business Day;

(n) In the interpretation of this Agreement, no rule of contract interpretation applies to the disadvantage of a party on the basis that it put forward this Agreement or any part of it.

2. Terms of agreement

2.1 The Services shall be provided by Carbon EMT to the Customer from the Commencement Date for the Initial Term.

2.2 Subject to clause 2.3, this Agreement may be renewed for a subsequent term of similar duration to the Initial Term.

2.3 The Agreement may be renewed by the parties’ mutual written agreement pursuant to clause 2.2 for such number of subsequent terms as is specified in Schedule 1.

2.4 The Agreement may be cancelled under the provisions of section 22 (termination) of this Agreement.

3. Fees and charges

3.1 In consideration of Carbon EMT providing the services to the Customer, the Customer agrees to:

(a) Complete, sign and provide a relevant ASOF for its required Services; and

(b) Pay the Services Fee,

to Carbon EMT pursuant to this Agreement.

3.2 Carbon EMT may review and adjust its Services Fee by providing the Customer with written notice not less than one (1) month prior to the date on which the adjustment is to be implemented (“the Adjusted Fees”).

3.3 The Adjusted Fees shall become effective beginning with the first day of the month following the date of implementation of the fee adjustment.

3.4 The Services Fee shall remain the same for the first twelve (12) months of the Agreement; thereafter the Services Fee may increase once every twelve (12) months, taking effect from and including the next Services Fee Invoice.

3.5 Carbon EMT may, at its option, charge additional fees at the current rate as indicated in Schedule 2, with a one-hour minimum labor and one-hour minimum travel if any of the following occurs:

(a) Alteration or attachment to the AMR by Customer or any third party other than the Service Provider; misuse or abuse, including servicing of the AMR by any party other than Carbon EMT or its Service Providers; improper use or failure to use approved supplies, or the use of supplies not meeting manufacturer’s specification; or any other condition not due to normal operational wear and tear.

(b) Damage to the AMR caused by vandalism; fire, lightning strikes or electrical problems originating outside the AMR; water, liquid spills, snow, or rain; foreign objects; rodents; damaged or cut cabling; abuse of any kind; or any other damage not due to normal operational wear and tear.

(c) Failing to cancel Customer initiated service call.

(d) Calling for Service outside the scope of the ASOF.

3.6 Pursuant to the ASOF and the relevant Services rendered, Carbon EMT shall invoice the Customer for travel time and labour from the closest dispatch point and will not exceed a maximum of two (2) hours. Any additional travel time shall be firstly approved by the Customer.

3.7 Carbon EMT shall invoice the Customer for the cost when a defective AMR part is replaced, in accordance with Schedule 2.

3.8 Carbon EMT shall invoice the Customer for the Services that it has provided to the Customer on a quarterly basis. Carbon EMT shall do so thirty (30) days in advance of the next quarter due.

3.9 The Customer shall pay within thirty (30) days of their invoice from Carbon EMT.

3.10 The Customer shall pay Carbon EMT interest on any amount due and not paid by the Customer within the time required by this Agreement at the rate of interest specified in Schedule 2.

3.11 The Charges are exclusive of taxes, duties and charges imposed or levied in Australia or overseas in connection with the Services. Without limiting the foregoing, the Customer shall be liable for any new taxes, duties or charges imposed subsequent to the date of this Agreement in respect of the Services.

4. Network Conversion

4.1 This clause applies if indicated in Schedule 2.

4.2 Carbon EMT will, at the request of the Customer, investigate the feasibility of converting the Network to an Embedded Network and provide a written report on the result of those investigations, including the provision of an estimate of the costs and fees involved.

4.3 The Customer will pay the Investigation Fee to Carbon EMT for the work carried out in clause 4.2.

4.4 If the Customer does not make a decision not to proceed within fourteen (14) days of the report referred to in clause 4.2, this Agreement is no longer binding on the Parties, except in respect of any liability that has already arisen.

4.5 If the Customer decides to proceed, the Customer acknowledges that:

(a) the Customer will be required enter into a written contract with a Distributor for the supply of electricity to the Gate Meter and the acquisition of the Embedded Network (the Contract);

(b) although Carbon EMT may provide administrative assistance to the Customer to enter into the Contract, the Distributor will invoice the Customer direct for the Contract price and the Customer must directly pay the Contract price to the Distributor; and

(c) the Customer will be responsible for recovery of the costs of supplying electricity to the Members from the Members.

5. CARBON emt’s access to site

5.1 The Customer shall make the Site and AMR accessible to Carbon EMT at the times and in the manner required by Carbon EMT to enable Carbon EMT to comply with its obligations in this Agreement and any relevant ASOF.

5.2 Where possible, the Customer shall provide Carbon EMT with the telephone number and any password to enable Carbon EMT to have full and free access to the AMR in accordance with clause 5.1.

5.3 In the event of late supply of access to the AMR or any other failure by the Customer to comply with its obligations under clause 5.1 and/or any of the Services that it engages Carbon EMT to facilitate, Carbon EMT shall not be responsible for any claims whatsoever against the Customer for breach of the Policy or any costs incurred by the Customer in relation to the same.

6. Compliance

6.1 The Customer acknowledges and agrees that it is its responsibility to put and keep the AMR in a condition that ensures the AMR complies with the Policy, subject to any of the Services that the Customer specifies in writing to Carbon EMT, and Carbon EMT agrees to provide, with respect to the Policy, to facilitate the Customer’s relevant compliance.

6.2 Carbon EMT will at all times hold and maintain all necessary license permits and authorities that are required by law for it to provide the Services.

7. System Faults

7.1 Carbon EMT shall not be liable for any loss or damage arising directly or indirectly as a result of a fault in the AMR which was not reasonably identifiable by Carbon EMT prior to notification provided by the Customer to Carbon EMT that the AMR was affected by such fault.

7.2 Subject to clause 6.1, Carbon EMT shall use its best endeavours to provide the relevant Services and to rectify any fault with the AMR or which it reasonably believes may result in a failure of the AMR to comply with the Policy.

7.3 If Carbon EMT reasonably determines that an AMR fault may result in Carbon EMT being unable to materially comply with its obligations under this Agreement, Carbon EMT will notify the Customer as soon as practicable.

8. Maintenance SCHEDULE

8.1 Carbon EMT may, in addition to any Services provided pursuant to an ASOF, establish a maintenance schedule with the Customer an agreed regular maintenance schedule for the purpose of performing its obligations in this Agreement (“the Maintenance Schedule”).

8.2 Carbon EMT shall provide Maintenance and Support for the AMR at the Site subject to payment of the Maintenance Fee for the Maintenance Schedule.

8.3 Carbon EMT will remotely monitor the AMR system and the correct reporting of all matters on a daily basis to maintain the quality of the AMR.

9. warranty

9.1 The AMR is covered by warranty for twelve (12) months from the installation date and will be replaced at no cost during the warranty period, after which, standard costs apply.

10. Goods and services tax

10.1 GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth).

10.2 All consideration provided under this Agreement is exclusive of GST, unless it is expressed to be GST?inclusive.

10.3 Where a party (Supplier) makes a taxable supply to another party (Recipient) under or in connection with this Agreement, the Recipient must pay to Carbon EMT an additional amount equal to the GST payable on the supply (unless the consideration for that taxable supply is expressed to include GST). The additional amount must be paid by the Recipient at the later of the following:

(a) The date when any consideration for the taxable supply is first paid or provided.

(b) The date when Carbon EMT issues a tax invoice to the Recipient.

10.4 If, under or in connection with this Agreement, Carbon EMT has an adjustment for a supply under the GST law which varies the amount of GST payable by Carbon EMT, Carbon EMT will adjust the amount payable by the Recipient to take account of the varied GST amount. Carbon EMT must issue an adjustment note to the Recipient within 28 days of becoming aware of the adjustment.

10.5 If a party is entitled to be reimbursed or indemnified under this Agreement, the amount to be reimbursed or indemnified is reduced by the amount of GST for which there is an entitlement to claim an input tax credit on an acquisition associated with the reimbursement or indemnity. The reduction is to be made before any increase under clause 10.3. An entity is assumed to be entitled to a full input tax credit on an acquisition associated with the reimbursement or indemnity unless it demonstrates otherwise before the date the reimbursement or indemnity is made.

10.6 This clause will not merge on completion and will survive the termination of this Agreement by either Party.

10.7 Terms used in this clause that are not otherwise defined in this Agreementhave the meanings given to them in the GST Act.

11. Confidentiality

11.1 A Party shall not, without the prior written approval of the other Party, disclose the other Party’s Confidential Information.

11.2 A Party shall not be in breach of clause 11.1 in circumstances where it is legally compelled to disclose the other Party’s Confidential Information.

11.3 Each Party shall take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of this Agreement, do not make public or disclose the other Party’s Confidential Information.

11.4 Notwithstanding any other provision of this clause, Carbon EMT may disclose the terms of this Agreement (other than Confidential Information of a technical nature) to its related companies, solicitors, auditors, insurers or accountants, and shall ensure that every person to whom that disclosure is made uses that information solely for the purposes of advising or reporting to Carbon EMT.

11.5 This clause shall survive the termination of this Agreement.

12. IndemnitIES

12.1 Carbon EMT releases and indemnifies the Customer against any action, claim or demand by Carbon EMT’s servants, employees or agents or the personal representative or dependents arising out of the performance of this Agreement.

12.2 The Customer indemnifies Carbon EMT, its servants and agents against any claim or proceeding that is made, threatened or commenced, and any cost, liability, loss (including consequential loss), damage or expense (including legal and other professional costs on a full indemnity basis) that Carbon EMT incurs or suffers or may incur or suffer, as a direct or indirect result of a breach of this Agreement by the Customer.

13. Implied Terms

13.1 Subject to clause 13.2, any condition or warranty which would otherwise be implied in this Agreement is hereby excluded.

13.2 Where legislation implies in this Agreement any condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of or liability under such condition or warranty, the condition or warranty shall be deemed to be included in this Agreement. However, the liability of Carbon EMT for any breach of such condition or warranty shall be limited, at the option of Carbon EMT, to one or more of the following:

(a) if the breach relates to goods:

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

(ii) the repair of such goods;

(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or

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

(b) if the breach relates to services:

(i) the supplying of the services again; or

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

14. LiabilitIES AND RESONSIBILITIES OF THE CUSTOMER

14.1 Except in relation to liability for personal injury (including sickness and death), Carbon EMT shall be under no liability to the Customer in respect of any loss or damage (including consequential loss or damage) which may be suffered or incurred or which may arise directly or indirectly in respect of goods or services supplied pursuant to this Agreement or in respect of a failure or omission on the part of Carbon EMT to comply with its obligations under this Agreement.

14.2 Subject to clause 14.3, the Customer warrants that it has not relied on any representation made by Carbon EMT which has not been stated expressly in this Agreement or upon any descriptions, illustrations or specifications contained in any document including catalogues or publicity material produced in Carbon EMT.

14.3 The Customer acknowledges that to the extent Carbon EMT has made any representation which is not otherwise expressly stated in this Agreement, the Customer has been provided with an opportunity to independently verify the accuracy of that representation.

14.4 The Customer shall at all times indemnify and hold harmless Carbon EMT and its officers, employees and agents (those indemnified) from and against any loss (including reasonable legal costs and expenses) or liability reasonable incurred or suffered by any of those indemnified arising from any proceedings against those indemnified where such loss or liability was caused by:

(a) a breach by the Customer of its obligations under this Agreement; or

(b) any willful, unlawful or negligent act or omission of the Customer.

14.5 In no event shall Carbon EMT be liable to the Customer for any incidental, indirect, special or consequential damage, including but not limited to loss of use, revenue or profit, even if Carbon EMT has been advised, or knew or should have known of the possibility of such.

15. Termination

15.1 This Agreement shall remain in full force and effect until terminated in accordance with this section.

15.2 Without limiting the generality of any other clause in this Agreement, Carbon EMT may terminate this Agreement immediately by notice in writing if:

(a) the Customer is in breach of any term of this Agreement and such breach is not remedied within thirty (30) days of it after written notice by Carbon EMT;

(b) the Customer becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration;

(d) the Customer, being a natural person, dies; or

(e) the Customer ceases or threatens to cease conducting its business in the normal manner.

15.3 If notice is given to the Customer pursuant to clause 15.2, Carbon EMT may, in addition to terminating the Agreement:

(a) repossess any of its property in the possession, custody or control of the Customer;

(b) retain any moneys paid;

(d) be regarded as discharged from any further obligations under this Agreement; and

(e) pursue any additional or alternative remedies provided by law.

15.4 Without prejudice to any other rights the Customer may have under this Agreement, or at law, the Customer may terminate this Agreement if:

(a) after five (5) years, there is written notice not less than ninety (90) days from the date the Customer requested for termination.

(b) Carbon EMT is in breach of any term and such breach is not remedied within thirty (30) days of written notice by the Customer.

(c) Carbon EMT becomes or threatens to become or is in jeopardy becoming subject to any form of insolvency administration

15.5 If Carbon EMT fails to remedy a failure to provide services in accordance with this agreement, the Customer must provide notice in writing that Carbon EMT has 14 days to remedy the failure or the agreement will be terminated.

15.6 Pursuant to clause 15.5, if at the end of fourteen (14) days Carbon EMT has failed to remedy the situation, the Customer may terminate this Agreement and obtain from Carbon EMT a pro-rated refund of any pre-paid fees.

15.7 If notice is given to Carbon EMT to terminate this Agreement pursuant to clause 15.6, the Customer may, in addition to termination of the Agreement:

(a) Recover all related data, documentation and records retained by Carbon EMT pursuant to this Agreement;

(b) Recover any sums paid to Carbon EMT on any account or for Services which have not been fulfilled or performed;

(c) Recover from Carbon EMT the amount of any direct loss or damage which is sustained as a result of the termination;

(d) Be regarded as discharged from any further obligations under this Agreement; and

(e) Pursue any additional or alternative remedies provided by law.

16. Damages after Termination

16.1 Each of the Customer's Obligations specified in this clause is an essential term of this Agreement:

(a) Clause 3.1: Obligation to pay the Services Fee;

(b) Clause 4.3: Obligation to pay the Investigation Fee;

(c) Clause 5.1: Obligation to give access to obtain Meter Readings;

(d) Clause 6.1: Obligation to put and keep AMR in good condition;

(e) Clause 9.3: Obligation to pay the Maintenance Fee,

(collectively “the Fees or Charges”).

16.2 In respect of the Customer's obligations to pay any Fee or Charges, the acceptance by Carbon EMT of arrears or of any late payment of any Fee or Charge does not constitute a waiver of the essentiality of the Customer's obligation to pay interest in respect of those arrears or of the late payments or in respect of the Customer's continuing obligation to pay Fee or Charges during the Term.

16.3 The Customer must compensate Carbon EMT in respect of any breach of an essential term of this Agreement and Carbon EMT is entitled to recover damages from the Customer in respect of any breach and Carbon EMT’s entitlement under this clause 16 is in addition to any other remedy or entitlement to which Carbon EMT is entitled, including the right to terminate the Term.

16.4 If the Customer's conduct, whether acts or omissions, constitutes a repudiation of this Agreement or of the Customer's Obligations or constitutes a breach of any of the Customer's Obligations, the Customer must compensate Carbon EMT for the loss or damage (including legal costs on a full indemnity basis) suffered by reason of the repudiation or breach.

16.5 Carbon EMT is entitled to recover damages against the Customer in respect of repudiation or breach of any of the Customer's Obligations for the damage suffered by Carbon EMT during the entire Term.

16.6 Carbon EMT's entitlement to recover damages is not affected or limited by any of the following:

(a) election to terminate the Term by Carbon EMT; or

(b) acceptance of the Customer's repudiation by Carbon EMT;

16.7 Carbon EMT is entitled to institute legal proceedings claiming damages against the Customer in respect of the entire Term including the periods before and after the termination, repudiation or acceptance of repudiation referred to in clause 16.6 whether the proceedings are instituted either before or after that conduct.

16.8 If Carbon EMT terminates this Agreement, Carbon EMT must take reasonable steps to mitigate its damages. Carbon EMT's entitlement to damages must be assessed on the basis that Carbon EMT should have observed the obligation to mitigate damages contained in this clause 16 but Carbon EMT's conduct taken pursuant to the duty to mitigate damages does not by itself constitute acceptance of the Customer's breach or repudiation

17. Force Majeure

17.1 Neither Party shall be liable for any delay or failure to perform its obligations pursuant to this Agreement if such delay is due to Force Majeure.

17.2 If a delay or failure of a Party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that Party’s obligations will be suspended.

17.3 If a delay or failure of a Party to perform its obligations is caused or anticipated due to Force Majeure exceeds sixty (60) days, either Party may immediately terminate the Agreement on providing notice in writing to the other Party.

17.4 If this Agreement is terminated pursuant to clause 17.3, Carbon EMT shall refund moneys previously paid by the Customer pursuant to this Agreement for goods or services not provided by Carbon EMT to the Customer.

18. Sub-Contracts

18.1 Carbon EMT may sub-contract for the performance of this Agreement or any part of this Agreement if so specified in Schedule 1 or upon obtaining (subject to clause 18.3) the Customer’s prior written consent.

18.2 The Customer shall not unreasonably withhold consent for the supply of a Sub-Contractor in accordance with clause 18.1.

18.3 Carbon EMT may, without the consent of the Customer, engage individuals on a sub-contract or consultancy basis, whether or not operating under a corporate structure, to assist in the provision of the Services.

19. Security

19.1 The Customer agrees to allow Carbon EMT to secure all of its rights and entitlements under this Agreement as follows:

(a) the Customer charges all of its estate and interest in all real and personal property in the Customer in favour of Carbon EMT and agrees to sign all documents necessary to allow Carbon EMT to register a charge over the Customer with the Australian Securities and Investments Commission in relation to same.

(b) the Customer agrees to allow Carbon EMT to charge and encumber all its estate and interest in any real and personal property whatsoever. This includes an agreement to sign all documents necessary to protect Carbon EMT’s rights pursuant to this Agreement and that Carbon EMT may register a caveat upon any property jointly or solely owned by the Customer with any other party.

20. Entire Agreement

20.1 This Agreement constitutes the entire agreement between the Parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing.

21. Precedence

21.1 The documents comprising this Agreement shall be read in the following order of precedence:

(a) the clauses of this Agreement;

(b) the Schedules.

21.2 Where any conflict occurs between the provisions contained in two or more of the documents forming this Agreement, the document lower in the order of precedence shall where possible be read down to resolve such conflict. If the conflict remains incapable of resolution by reading down, the conflicting provisions shall be severed from the document lower in the order of precedence without otherwise diminishing the enforceability of the remaining provisions of that document.

22. Assignment and Novation

22.1 The benefit of this Agreement shall not be assigned by the Customer without Carbon EMT’s written consent.

22.2 Carbon EMT may consent to the assignment or novation of this Agreement by the Customer subject to such conditions as it chooses to impose.

22.3 The benefit of this Agreement may be assigned by Carbon EMT without the Customer’s written consent.

23. Waiver

23.1 No Term of this Agreement shall be deemed to be waived except by notice in writing signed by each Party.

23.2 A waiver made by the either Party pursuant by clause 23.1 will not prejudice its rights in respect of any subsequent breach of the Agreement by the other Party.

23.3 Subject to clause 23.1, any failure by the either Party to enforce any clause of this Agreement, or any forbearance, delay or indulgence granted by either Party to the other Party, will not be construed as a waiver of the first Party’s rights under this Agreement.

24. Variation

24.1 The provisions of this Agreement shall not be varied, except by agreement in writing signed by the Parties.

24.2 If either Party wishes to vary the Agreement, the proposing Party shall submit a copy of the proposed variations to the other Party. The receiving Party shall advise the proposing Party within four (4) Business Days, or such other period as is agreed by the other Party (“the receiving Party”), of receipt of the variations either:

(a) that the receiving Party accepts the variations; or

(b) that the receiving Party rejects the variations.

24.3 If the receiving Party accepts the variations, the Agreement shall be deemed to incorporate the accepted variations from the date upon which the receiving Party notifies the proposing Party that it accepts the variations.

24.4 If the receiving Party rejects the proposed variations, each Party shall perform the Agreement in accordance with the unvaried terms.

24.5 A variation shall not be effective unless the Parties agree in writing as to:

(a) the effect of the variation, if any, upon the Charges; and

(b) the impact of the variation on the obligations of either Party under this Agreement.

25. Cooperation

25.1 Each party shall sign all documents and do all things necessary or desirable to give effect to this Agreement and will procure its officers, employees and agents to declare, make or sign all documents and do all things necessary or desirable to give full effect to this Agreement.

25.2 In addition to and notwithstanding any other obligation whether under this Agreement, each Party will:

(a) to the extent practical, cooperate with the other Party in the pursuit of the objectives of this Agreement;

(b) pursue best practice in the performance of obligations in this Agreement; and

(c) as soon a practicable, consult with the other Party on any matter arising which may materially effect the performance by the other Party of its obligations under this Agreement.

25.3 Except to the extent stated to the contrary in this Agreement, any consent, approval, condition or thing required to be done pursuant to this Agreement shall not be capriciously or unreasonably reached, withheld, given or carried out by either Party.

26. Customer’s Rights

26.1 Any express statement of a right of the Customer under this Agreement is without prejudice to any other writer the Customer expressly stated in this Agreement or arising at law.

27. CARBON EMT’S Rights

27.1 Any express statement of the right of Carbon EMT under this Agreement is without prejudice to any other right of Carbon EMT expressly stated in this Agreement or existing at law.

28. Severability

28.1 If any provision of this Agreement is held invalid, unenforceable or illegal for any reason, the Agreement shall remain otherwise in full force apart from such provisions which shall be deemed deleted.

29. Survival of Agreement

29.1 Subject to any provision to the contrary, this Agreement shall enure to the benefit of and be binding upon the Parties and their successors, trustees, permitted assigns or receivers but shall not enure to the benefit of any other persons.

29.2 The covenants, conditions and provisions of this Agreement which are capable of having effect after the expiration of the Agreement shall remain in full force and effect following the expiration of the Agreement.

30. Governing Law

30.1 This Agreement will be governed by and construed according to the law of the jurisdiction specified in the Details.

31. Notices

31.1 Notices under this Agreement may be delivered by hand, by mail or by facsimile to the addresses specified in the Details.

31.2 Notice will be deemed given:

(a) in the case of hand delivery, upon written acknowledgement of receipt by an officer or other duly authorised employee, agent or representative of the receiving Party;

(b) in the case of posting, three days after despatch;

(c) in the case of facsimile, upon receipt of transmission if received on a business day or otherwise at the commencement of the first business day following transmission.

31.3 Notices under this Agreement may be made by electronic mail or other electronic means if, prior to any notice or communication being given, the Parties have done the following:

(a) agreed that electronic communication is to be an acceptable form of communication; and

(b) notified each other of their respective electronic mail addresses and any other information required to enable the sending and receipt of information by electronic means.

31.4 Any electronic communication is to be treated as given when received in readable form addressed in the manner specified in clause 31.3, or as notified under clause 31.3.

31.5 Each Party must promptly notify the other Party of any change to their electronic mail address or any other such information supplied by them.

32. Execution

32.1 This Agreement may be executed in counterparts by the respective Parties, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement, provided that this Agreement shall be of no force and effect until the counterparts are exchanged.