1. Definitions and Interpretations
1.1 Definitions
In this Agreement unless
inconsistent with the context or subject matter the following terms have the
corresponding definitions:
(a)
Account: an account enabling the Client
and an Authorised User to access and use the Platform.
(b)
ACL: the Australian Consumer Law (as set
out in Schedule 2 to the Competition and Consumer Act 2010 (Cth)).
(c)
Address for Service: the email address
for each party as set out in the Schedule, or such other address for service
advised by the party to the other parties in writing from time to time.
(d)
Agreement: the agreement consisting of these
Terms and Conditions and the Schedule and any amendments to this Agreement from
time to time.
(e)
Applicable Laws: any laws governing or affecting the
arrangements contemplated by this Agreement.
(f)
Authorised User: any individual who has
been supplied with user identification and a password to access and use the
Services on behalf of the Client, including the Client’s Personnel.
(g)
Client Data: all data, files, works and
materials pushed or pulled into the Services by the Client (or Authorised
Users), transmitted by the Services at the instigation of the Client (or
Authorised Users), or supplied by the Client (or Authorised Users) to the Services
for transmission by the Platform.
(h)
Commencement Date: the date set out in
the Schedule.
(i)
Confidential Information: of a party
means all information (in any form):
(i)
relating to or arising from the Services
(including the Client Data for the Client);
(ii)
that concerns a party's business operations and
which any reasonable person would consider to be of a confidential nature (such
as trade secrets, methods, strategies, client lists, pricing, and other
business processes); and
(iii)
includes this Agreement;
but does not
include information that:
(iv)
is or becomes independently developed or known
by the other party through no breach of this Agreement by that party; or
(v)
becomes publicly available without breach of this
Agreement.
(j)
Consulting Services: those additional
consulting services requested by the Client and provided in accordance with
Annexure B – Consulting Services.
(k)
Corporations Act: the Corporations Act
2001 (Cth).
(l)
End User Licence Agreement: the
Provider’s then current End User Licence Agreement, as amended from time to
time. As at the date of this Agreement the current End User Licence Agreement
is attached in Annexure A.
(m)
Fees: the fees payable by the Client to
the Provider to use the Services as set out in the Schedule, and any other fees
and charges payable by the Client to the Provider under this Agreement.
(n)
Force Majeure Event: events,
circumstances or causes beyond a party’s reasonable control including
(but not limited to):
(i)
strikes, lock-outs or other industrial action;
(ii)
civil commotion, riot, invasion, cyber-attack,
terrorist attack or threat of terrorist attack, war (whether declared or not)
or threat or preparation for war;
(iii)
fire, explosion, storm, flood, earthquake,
subsidence, epidemic, pandemic, health emergencies, disease, or other natural
disaster;
(iv)
impossibility of the use of railways, shipping,
aircraft, motor transport or other means of public or private transport;
(v)
interruption or failure of utility services
(including the inability to use public or private telecommunications networks);
(vi)
interruption of networks or third-party services
(including telecommunication or web services); and
(vii)
the acts, decrees, legislation, regulations or
restrictions of any Government Agency,
however does
not include a lack of funds.
(o)
Government Agency: any government or
governmental, administrative, monetary, fiscal or judicial body, department,
commission, authority, tribunal, agency or entity in any part of the world.
(p)
GST Law: has the same meaning as GST
Law in the A New Tax System (Goods & Services Tax) Act 1999 (Cth).
(q)
Initial Term: means the Initial Term
specified in the Schedule.
(r)
Insolvency
Event:
(iii)
any application (that is not withdrawn or
dismissed within seven days is made to a court for an order, or an order is
made, or a meeting is convened or a resolution is passed, for the purpose of
(i) appointing a person referred to in paragraph
(i)
or
(ii)
of this definition; (ii) winding up or deregistering a person; or (iii)
proposing or implementing a scheme of arrangement of a person, other than with
the prior approval of the Agent under a scheme of arrangement pursuant to Part
5.1 of the Corporations Act;
(v)
any event occurs in relation to a person in any
jurisdiction that is analogous, or has a substantially similar effect, to those
set out in paragraphs
(i)
to
(iv)
of this definition (inclusive); or
(vi)
a person is or admits in writing that it is, or
is declared to be, or is taken under any Applicable Law to be (for any
purpose), insolvent or unable to pay its debts.
(s)
Intellectual Property Rights: all present
and future rights conferred by law in or in relation to copyright, trade marks,
designs, patents, circuit layouts, plant varieties, business and domain names,
inventions and confidential information, and other results of intellectual
activity in the industrial, commercial, scientific, literary or artistic fields
whether or not registrable, registered or patentable.
These rights
include without limitation:
(i)
all rights in all applications to register those
rights;
(ii)
all renewals and extensions of those rights; and
(iii)
all rights in the nature of those rights, such
as Moral Rights.
(t)
Loss: any loss, liability, cost
(including legal costs on a solicitor and own client basis), charge, expense,
tax or damage of any nature whatsoever, including lost profits, loss of
goodwill, loss of business, loss of production and any other special, incidental,
exemplary, compensatory or consequential damages, losses or expenses (howsoever
arising or caused, including, without limitation, negligence).
(u)
Materials: all materials, documentation
and information (whether reduced to written form or otherwise) provided to the
Client by the Provider (or otherwise made accessible to the Client by the
Provider) at any time. Including any softcopy user manuals and online help
issued by the Provider from time to time.
(v)
Personnel: the directors, officers,
employees, contractors, suppliers, advisers or agents of a party.
(w)
Platform: the proprietary software and
platform owned or licenced by the Provider, including any version upgrades and
components released by the Provider for that software and its related services
as described in the Schedule.
(x)
Policy: any policy of the Provider in
place from time to time.
(y)
Privacy Legislation: the Privacy Act 1988
(Cth), including Australian Privacy Principles, and the guidance and codes of
practice issued by the Office of the Australian Information Commissioner from
time to time.
(z)
Privacy Policy: the privacy policy of the
Provider as accessible on the Platform.
(aa)
Related Entity: has the meaning given in
section 9
of the Corporations Act.
(bb)
Representative: the representative of the
Client as set out in the Schedule and as appointed from time to time in
accordance with this Agreement.
(cc)
Schedule: the Schedule as attached to
these Terms and Conditions.
(dd)
Services: any services that the Provider
provides to the Client, including without limitation the Platform.
(ee)
State: New South Wales, Australia.
(ff)
System: the computer hardware equipment
on which the Client has elected to install, access, or execute a given copy of
the Services.
(gg)
Term: the term of this Agreement,
commencing and expiring in accordance with its terms.
1.2
Interpretation
In this Agreement
the following rules of interpretation apply, unless the contrary intention
appears or context otherwise requires:
(a)
Headings and subheadings are for convenience
only and do not affect the interpretation of this Agreement.
(b)
References to clauses, schedules, annexures,
appendices, attachments and exhibits are references to the clauses of, and the
schedules, annexures, appendices, attachments and exhibits to, this Agreement.
(c)
References to parties are references to the
parties to this Agreement.
(d)
References to a party to any agreement or
document include that party’s permitted assignees and successors, including
executors and administrators and legal representatives.
(e)
Words denoting the singular include the plural
and words denoting the plural include the singular.
(f)
Words denoting any gender include all genders.
(g)
The word ‘person’ includes any individual,
corporation or other body corporate, partnership, joint venture, trust,
association and any Government Agency.
(h)
A reference to a body (other than a party to this
Agreement), whether statutory or not, that ceases to exist or has its powers or
functions transferred to another body is a reference to the body that replaces
it or that substantially succeeds to its powers or functions.
(i)
A reference to any agreement or document
(including this Agreement) includes any amendments to or replacements of that
document.
(j)
A reference to a law includes:
(i)
legislation, regulations and other instruments
made under legislation and any consolidations, amendments, re-enactments or
replacements of them;
(ii)
any constitutional provision, treaty or decree;
(iii)
any judgment;
(iv)
any rule or principle of common law or equity,
and is a reference
to that law as amended, consolidated, re-enacted, replaced or applied to new or
different facts.
(k)
Any promise, agreement, representation or
warranty given or entered into on the part of two or more persons binds them
jointly and each of them severally.
(l)
Any promise, agreement, representation or
warranty given or entered into on the part of two or more persons is for the
benefit of them jointly and each of them severally.
(m)
No provision of this Agreement will be construed
adversely to a party because that party was responsible for the preparation of
that provision or this Agreement.
(n)
If a period of time begins on a given day or the
day of an act or event, it is to be calculated exclusive of that day.
(o)
A reference to time is a reference to time in
the capital city of the State.
(p)
A reference to a day is a reference to a day in
the capital city of the State.
(q)
A reference to a day is to be interpreted as the
period of time commencing at midnight and ending 24 hours later.
(r)
If any act is required to be performed under this
Agreement by a party on or by a specified day and the act is performed after
5.00 pm on that day, the act is deemed to be performed on the next day.
(s)
If any act is required to be performed under this
Agreement on or by a specified day and that day is not a business day, the act
must be performed on or by the next business day.
(t)
A reference to an amount of dollars, Australian
dollars, $ or A$ is a reference to the lawful currency of the Commonwealth of
Australia, unless the amount is specifically denominated in another currency.
(u)
Specifying anything in this Agreement after the
terms ‘include’, ‘including’, ‘includes’, ‘for example’, ‘such as’ or any
similar expression does not limit the sense of the words, description,
definition, phrase or term preceding those terms unless there is express
wording to the contrary.
(v)
Where this Agreement is executed for a party by
an attorney, the attorney by executing it declares that the attorney has no
notice of revocation of the power of attorney.
(w)
This Agreement includes all schedules,
annexures, appendices, attachments and exhibits to it.
(x)
A reference to writing or written includes
email.
(y)
Where a word or phrase is defined, other parts
of speech and grammatical forms of that word or phrase have corresponding
meanings.
2.
Use of the Platform
2.1
The Platform provides the Client with the
ability to create, view, and share dashboards that will give the Client the
ability to see data and Key Performance Indicators (KPIs). The Platform gives the
Client the ability to easily see their data and present their data in a usable
fashion. The Client’s Authorised Users may access and use the Platform in
accordance with this Agreement and the End User Licence Agreement.
2.2
Although Authorised Users may access the
Platform, the Client acknowledges and agrees that:
(a)
due to the nature of software:
(i)
the Provider is unable to guarantee the data
accuracy of the Platform or the completeness, accuracy, currency or reliability
of any information provided by Authorised Users or third party data sources;
and
(ii)
the Provider makes no guarantees that there will
be no loss or corruption of Client Data at any time. Unfortunately, data loss
happens and the Client holds harmless and releases the Provider for any Loss
the Client suffers in the event that the Client Data is lost;
(b)
the Provider processes the Client Data on the
Client’s behalf.
2.3
In providing Client Data to the Platform, the
Client acknowledges and agrees that they are authorised to disclose such
information and that, without the Provider taking any further steps required by
applicable data protection or privacy laws, is able to collect, use and
disclose such Client Data for the purposes described in the Provider’s Privacy
Policy.
3.
access to the Platform
3.1
Term
(a)
This Agreement shall commence on the
Commencement Date and continue for the Initial Term unless it is terminated earlier
in accordance with this Agreement.
(b)
Following expiry of the Initial Term this
Agreement will automatically renew for equivalent periods (each a Further
Term) unless the Client or the Provider gives the other party written
notice to cancel prior to the expiry of the current Initial Term or Further
Term (as applicable). Termination under this clause will be effective at the
end of the current Initial Term or Further Term in which the notice is given.
(c)
The Client authorises the Provider to store the
Client’s payment method details and to automatically charge the Fees for each
renewed term. This Agreement will automatically renew in order to avoid
interruption to the Services and the Client acknowledges and agrees that this
is fair and reasonable.
Licensing terms
(a)
Subject to the Client’s compliance with the
terms of this Agreement, the Provider hereby grants to the Client the
non-exclusive, non-transferable, revocable right to access, view and use the Platform
during the Term in accordance with this Agreement. The scope of the rights
granted to the Client will be as set out in the Schedule. The Platform and
Services exclude anything not explicitly set out within that scope in the
Schedule.
(b)
The right to use the Platform as granted under
this clause is granted to the Client and its Authorised Users only and is
subject to any restrictions and limitations as specified in the Schedule
(or as modified in accordance with this Agreement).
(c)
The Client is required to have one licence for
each Authorised User who accesses or views any part of the Services, any
dashboard or data, any screenshot of any dashboard, or anything derived from
the Services and for those users being monitored by the product, or for each
individual who views and publishes dashboards that may not be monitored in the
call centre.
(d)
Each licence is a limited, non-exclusive,
non-transferable, revocable, non-sublicensable, named-user licence to use the
Services.
(e)
The Provider will, in its sole discretion, make
the final determination as to the number of individual licences the Client must
obtain in order to provide adequate licences for the Client’s Personnel and
authorised subcontractors (for enterprise deployment).
(f)
The Client must ensure that each Authorised User
has the proper licensing to use any mobile application.
(g)
The Client may purchase additional licences for
additional Authorised Users upon giving the Provider written notice and paying
the applicable fees advised by the Provider for the additional Authorised Users.
In the event that the Provider audits the use of the Platform by the Client,
and such use exceeds the licensing terms purchased, the Client agrees to pay
for and purchase such additional licences as applicable for such additional
use.
(h)
All Authorised Users of the Platform must agree
to and will be bound by the End User Licence Agreement, and the Client is
solely responsible for ensuring that they do so, and is solely responsible for
all actions and omissions of all Authorised Users (and any other person that
uses the Client’s access). In the event the Client, or any Authorised Users do
not agree to the End User Licence Agreement, they must not use the Platform.
(i)
The Client is solely responsible for ensuring
its Authorised Users comply with the provisions of this Agreement, and a breach
by any of the Authorised Users of this Agreement, will be deemed to be a breach
by the Client. Any licence granted to Authorised Users is solely while
authorised by the Client. If the Client removes an Authorised User’s
authorisation, their licence to access the Platform immediately ceases and the
Client is responsible for terminating their access.
(j)
The Client is strictly prohibited from granting
access to any other person (apart from Authorised Users) and must ensure that
no competitor of the Provider gains access to or use of the Platform.
3.3
Access restrictions
(a)
Except to the extent expressly permitted in the
terms of this Agreement, the right granted by the Provider to the Client under
clause
3.2
is subject to the following prohibitions:
(ii)
the Client must only use the Platform as it is
intended;
(iii)
the Client must not directly or indirectly copy,
reproduce, share, republish, frame, download, transmit, distribute, sell, reverse
engineer, decompile, translate, alter, modify, decompile, decrypt, disassemble
or otherwise attempt to discover the source code, object code or underlying
structure, ideas, know-how or algorithms relevant to the Platform or any
software, documentation or data related to the Services (except to the extent
expressly permitted by Provider or authorised within the Platform);
(iv)
the Client must not create derivative works
based on the Platform (except to the extent expressly permitted by Provider or
authorised within the Platform);
(v)
the Client must not make any alteration to the Platform;
and
(vi)
except as permitted by licensing rights, the
Client must not provide, or otherwise make available the Platform or copies
thereof to any third party.
4.
Account
4.1
Account Registration
In order to
use the Platform, the Client and each Authorised User must have their own Account.
The Client will be provided two administrator-level Accounts for the creation
and administration of its access to the Website and its Authorised Users. In
using an Account:
(a)
the Client is responsible for identifying and
maintaining access for all Authorised Users outside of those identified by the
Provider;
(b)
the Client (and each Authorised User) must not
use false or misleading information and must update their details should they
have changed from the last time they used the Website;
(c)
the Client (and each Authorised User) must
follow any password policies specified by the Provider from time to time;
(d)
the Client (and each Authorised User) is
responsible for the security of its username and password and the Provider will
assume that anyone using the Client’s (and each Authorised User’s) Account is
authorised to do so by the Client and the Client is responsible for their
actions. Under no circumstances will unauthorised access and use of the Client’s
Account reduce or exclude the Client’s liability to the Provider; and
(e)
the Client must notify the Provider immediately
if it becomes aware of any unauthorised use of its Account or the Account of
any Authorised User, or other security breach.
4.2
Account types
(a)
The Client will be able to set up a number of
different account types and privileges for Authorised Users as set out in the
Platform. Authorised Users will be able to operate the Platform based on the
permissions and privileges that the Client sets for each Account type. The
features and functionalities available to the Authorised Users are determined
by the subscription plan of the Client and what additional features the Client
has purchased (if any).
(b)
The Client authorises the Provider through the
Platform to contact such nominated users and invite them to create an Account
on the Platform. The Client remains responsible for all actions of each of its
Accounts.
(c)
For the avoidance of doubt, the Client must
ensure that each Authorised User (regardless of Account type) complies with this
Agreement.
5.
Fee
s
5.1
Fees & Payment Terms
(a)
In consideration of the Provider providing the
Client with the Services, the Client agrees to pay the Provider the Fees as set
out in the Schedule.
(b)
Usage that extends above and beyond the
allotment agreed to in the Schedule will be charged at RRP and invoiced monthly
or quarterly. Usage below that which is outlined within the Schedule is considered
consumed for that period and is not refundable nor transferable to offset
future use.
(c)
(d)
The Client must pay to the Provider the Fees in
accordance with the payment terms set out in the Schedule, with the first
payment due on or before the Commencement Date (or at such other time specified
by the Provider).
(e)
All payments are made on a recuring basis and
shall be charged in accordance with the Client’s usage of the Services. All
billing cycles are renewed automatically for the same billing cycle.
(f)
The Client may elect to purchase certain add-ons
or functionality of the Platform which must be paid for in accordance with the
terms set out on the Platform or otherwise specified by the Provider.
(g)
In the Provider’s sole discretion, the Provider
may offer free or discounted pricing for various Services accessible on the
Platform. The terms of such use and any limitations will be as specified in the
Schedule or on the Platform at the time the Service is accessed. If the
Provider offers the Client a trial program, once the terms of that trial
program have expired the Client agrees that the Provider’s normal billing rates
shall apply. The Client agrees to comply with any restrictions or limitations
placed on their Account during any free or discounted pricing term.
5.2
Payment method
(a)
Payment of the Fees must be made in the manner
specified by the Provider.
(b)
Where the Fees are to be paid via a direct debit
arrangement, then the Client irrevocably authorises the Provider to debit the Fees
during the term from the Client’s nominated bank account/credit card/debit card
(Debit Account), on or about the due date for payment without notice to
the Client. The Client must ensure that the Debit Account details are up to
date at all times and the Client must notify the Provider in the event that the
details are no longer current, and provide replacement details. The Client also
irrevocably authorises the Provider to deduct all other fees and charges
payable by the Client to the Provider under this Agreement from the Client’s
nominated Debit Account. The Client warrants that the Client is the owner or
has the right to use any Debit Account details provided to the Provider.
Default charges will apply in the event that the Client stops the authority to
charge the Debit Account without acceptance by the Provider. Insufficient funds in the Debit Account will
also attract a fee.
5.3
Overdue Payments
(a)
Where any part of the Fees or other monies
payable by the Client under or in connection with this Agreement are not paid
by the due date, the Provider reserves the right to:
(i)
suspend the Client’s access (including the access
of its Authorised Users) to the Platform and any Client Data until all overdue
amounts (including interest) are received by the Provider in cleared funds; and
(ii)
charge the Client interest on the overdue amount
at the rate of 12% per annum, accruing daily and compounding monthly until
payment is received in full.
5.4
Increase in fees
(b)
If this increase applies to the Client, then the
Provider will give at least 30 days’ written notice of the increase. If the
Client does not agree to the increase, then they may choose to terminate this
Agreement by giving notice to the Provider within 30 days of the Provider
giving notice of the increase or by otherwise giving notice not to renew in
accordance with clause
3.1
.
5.5
Withholding Taxes
If the
Client is located in a jurisdiction which requires the Client to deduct or
withhold taxes or other amounts from any amounts due to the Provider, the
Client must notify the Provider in writing. In such a case, the Provider
reserves the right to assess the withheld amount or to increase the gross
amount of the applicable payment so that, after the deduction or withholding
for taxes, the net amount paid to the Provider will not be less than the amount
the Provider would have received without the required deduction or withholding.
5.6
General
(a)
The Client must pay all Fees and other amounts in cleared funds and without
set-off or counter claim under any circumstance including if a dispute exists.
The Client is responsible for all foreign currency and transaction fees
incurred by either party in respect of payment of the Fees and any other
amounts payable under this Agreement.
(b)
Depending on the method of payment the Client uses
to pay the Fees, additional charges may be incurred (such as a small credit
card processing charge).
(c)
All amounts paid by the Client are
non-refundable to the extent permitted by law.
6.
Client Obligations - Platform
6.1
The Client acknowledges and agrees that it will:
(a)
only use the Platform in accordance with the
terms of this Agreement and any Policy; and
(b)
not use the Platform in any way that causes, or
may cause, damage to the Platform or impairment of the availability or
accessibility of the Platform.
6.2
The Client must appoint a Representative during
the Term. As at the date of this Agreement the Representative appointed is as
specified in the Schedule. The Client may not remove or appoint a different
Representative without the prior written consent of the Provider (which must
not be withheld unreasonably). The Provider reserves the right to request the
Client remove and appoint a different Representative where such request is
reasonable. The Client represents to the Provider that the Representative is an
agent of the Client and can make binding decisions on the Client’s behalf in
relation to this Agreement.
6.3
The acts and omissions of any Authorised User
are deemed to be the acts and omissions of the Client and the Client is liable
for its Authorised Users and must ensure that they comply with the Client’s
obligations in respect of the use of the Platform.
6.4
The Client’s use of the Platform and the
Services, including the information submitted on the Platform and the Services,
must not (and they must ensure that its Authorised Users use and information
must not):
(a)
be false, inaccurate, misleading, fraudulent,
deceptive or unlawful;
(b)
be in any manner which could damage, disable,
overburden, or impair the Platform or interfere with any other party's use and
enjoyment of this Platform;
(c)
be in any manner to phish or deceptively obtain
information of Authorised Users;
(d)
impersonate
or otherwise misrepresent the Client’s identity or affiliation with any other
person or entity;
(e)
be in a
manner that is for any harmful, irresponsible, or inappropriate purpose, or in
breach of this Agreement or any terms and conditions of any third-party product
or service;
(f)
be for purposes of junk, obscene, indecent, offensive or threatening electronic mail or
electronic mail in contravention of the Spam Act 2003 (Cth) or to
attract, lure or illegally obtain information from Authorised Users;
(g)
be for the purposes of sending altered,
deceptive, or false source-identifying information, including by “spoofing” or
“phishing”;
(h)
infringe any third-party’s rights or violate any
Applicable Laws;
(i)
contain any viruses or similar which could
affect the integrity, operation or security of the Platform;
(j)
contain:
(i)
information relating to children or medical
information;
(ii)
materials that are unlawfully pornographic or
indecent, or that contain extreme acts of violence;
(iii)
materials that advocate bigotry or hatred
against any person or group of people based on their race, religion, ethnicity,
sex, gender identity, sexual preference, disability, or impairment;
(k)
create liability for the Provider or cause the
Provider to lose (in whole or in part) the services or custom of our internet
service provider, other clients, users or other suppliers;
(l)
damage the credibility or integrity of the Platform
or the Provider, or dilute, tarnish, or otherwise harm the Provider’s brand in
any way; or
(m)
interfere with or disrupt the Platform or
servers or networks connected to the Platform, or disobey any requirements,
procedures, policies, or regulations of networks connected to the Platform.
6.5
Whilst using the Platform and the Services, the
Client must not, and must ensure that its Authorised Users do not:
(a)
attempt to gain unauthorised access to the Platform
or computer systems or networks connected to the Platform through any means;
(b)
access, tamper with, or use non-public areas or
parts of the Services, or shared areas of the Services;
(c)
commit forgery (or attempted forgery), harass
any individual, or harm minors in any way;
(d)
probe, scan, or test the vulnerability of any
system or network;
(e)
collect, store, input, upload, post, disclose or
transmit personal information or data about others, including, without
limitation email addresses;
(f)
breach or violate any of the Provider’s
policies;
(g)
circumvent storage space limits;
(h)
falsify or delete any attributions, legends, or
other proprietary designations of origin or source of any content of the Platform;
(i)
copy, store or otherwise access or use any
information contained on the Platform for purposes not expressly permitted by this
Agreement;
(j)
use the Platform for any purposes that are not
permitted by this Agreement or in any way that is inconsistent with the purpose
of the Platform, or in a manner that falsely implies the Provider’s
endorsement, partnership or otherwise misleads others as to the Client’s
affiliation with the Provider;
(k)
interfere with or disrupt any user, host, or
network, for example by sending a virus to, overloading, flooding, spamming, or
mail-bombing any part of the Services;
(l)
use any robot, spider, scraper, or other
automated means to access or monitor the Service for any purpose;
(m)
access, search, or create accounts for the
Services by any means other than the Provider’s publicly supported interfaces
(for example, by “scraping” or creating accounts in bulk);
(n)
take any action that imposes or may impose (at
the Provider’s sole discretion) an unreasonable or disproportionately large
load on the Provider’s infrastructure or infrastructure which supports the
Service;
(o)
attempt to circumvent payment of any fees in
anyway;
(p)
tamper with, hinder the operation of or make
unauthorised modifications to the Platform or any part thereof;
(q)
use the Service to develop a competing service
or product;
(r)
damage or modify the Platform or the Platform or
any part thereof; or
(s)
breach, circumvent, disable or otherwise attempt
to interfere with any security or authentication related features.
6.6
Fair Use:
(a)
Usage Limits. There are usage limits associated
with the Platform and our Services . These limits are identified as Maximum
storage capacity of 500GB, Maximum monthly inbound bandwidth usage of 100GB per
month, Maximum monthly outbound bandwidth usage of 50GB per month and Maximum
concurrent users up to 10 users. The Provider reserves the right to charge the
Client for additional overage fees of the above measures at the rates of $100
per 500GB per month storage, $25 per 100GB per month outbound bandwidth and $15
per 500GB per month inbound bandwidth.
7.
Onboarding services
7.1
If indicated in the Schedule, the Provider will
provide the Client with onboarding services in the manner as specified in the
Schedule, subject to the terms of this Agreement. Such onboarding services are
included as part of the Fees.
7.2
Onboarding services are available only to new
clients who have never purchased access to or licensing of the Platform.
7.3
During the onboarding process, the Provider will
deliver training via webinar as detailed in the Schedule, to assist the Client
in utilising the Platform.
7.4
The Provider shall not be liable for any issues
arising from the training or the use of the Platform during such onboarding.
8.
Consulting services
8.1
The client may request the provision of
consulting services from time to time in accordance with the terms of Annexure B
– Consulting Services.
9.
Platform
9.1
Maintenance
(a)
The Provider reserves the right to provide general
maintenance services to the Platform including updating and upgrading the Platform
during the Term as the Provider considers necessary from time to time. The
Client acknowledges and agrees that the Platform may occasionally be
unavailable during periods of planned or unscheduled critical and urgent
maintenance or updates or upgrading. There is no obligation on the Provider to
undertake any updates or upgrades or make any additional functionality
available at any time.
(b)
The Provider will provide the Client with the
following notice in the event any maintenance services will or are likely to
result in any downtime to the Platform:
(i)
if the maintenance services are critical, urgent
and it is not reasonably practicable for the Provider to provide any notice –
No notice will be provided;
(ii)
otherwise – the Provider will endeavour to
provide at least 5 business days’ notice.
9.2
Availability & Service Levels
The
Provider shall use reasonable endeavours to maintain the availability of the Platform
to the Client but provides no guarantee as to the availability and/or the
uptime of the Platform. Except to the extent caused by the Provider’s negligent
act or omission, the Provider will not be liable for any Loss suffered by the
Client or any other person in this regard.
9.3
Standard support
(a)
During the hours specified on Provider’s support
website (Maintenance and Support Hours), the Provider will make available the
help desk facility to enable:
(i)
the Provider to respond to requests made to the
help desk;
(ii)
the Provider to respond to technical and user
questions relating to the Platform; and
(iii)
the Client to report any defects of which it
becomes aware.
9.4
Variations and amendments
(a)
Should
the Client require amendments to the Platform, then the Client may request the
Supplier provide such amendments, and the Supplier may accept or reject such
request at its sole discretion. If the Supplier accepts such request then it
will provide an additional quote (with additional fees if required to be paid
as advised by the Supplier at the time of request) and if accepted by the
Client, an invoice will be issued to accommodate these changes.
(b)
The
Supplier reserves the right to make changes to the Platform without notice and
which are necessary to comply with Applicable Laws, Government Agency requests
or safety requirements, or which the Supplier otherwise considers necessary for
security or functionality of the Platform.
9.5
Client System
The Client
is solely responsible for the continued operation and maintenance of the
Systems and the third-party software used with the Services.
9.6
Third Party Integrations
(a)
The Services may support integrations with third-party
services to enable the Platform to provide a number of features. The Client
acknowledges that although the Services support third party integrations, the
Services are not supplied with access included to any data connection source or
any third-party product, including but not limited to, any Oracle, Salesforce,
Google, Microsoft, or Adobe licences. Separate fees and licensing terms apply
to such third party services.
(b)
In order for the Platform to integrate with such
third-party services, the Client acknowledges and agrees that:
(i)
the Client may be required to obtain additional
licences with the third party (for example to connect to Salesforce, although
the Platform has the functionality to do so, additional licences are required
from Salesforce);
(ii)
third party services are provided and operated
by third party providers. To the extent permitted by law, such third party
providers will be deemed to supply those services to the Client and not the
Provider;
(iii)
the Client may be required to have an account
set up with that third-party supplier;
(iv)
third party terms may apply to the supply of
such third-party services, and the Client is solely responsible for reading,
acknowledging and agreeing to such terms. Third party terms are solely between
the Client and the third party supplier, the Provider is not a party to such
terms (except where it acts as an agent of the Client for the transmission of
data to the Platform); and
(v)
the Client authorises and directs the Provider
to disclose the Client Data as required to such third-party systems in order
for the Provider to provide the Services.
(c)
The Client acknowledges that such third-party
services are beyond the Provider’s reasonable control, and in the event that:
(i)
a third-party service is experiencing issues or downtime;
or
(ii)
the Client is required to maintain an account
with that third-party service and fails to do so,
this may
also cause the Platform to become unavailable and the Provider accepts no
responsibility for any Losses or notification in this regard.
(d)
The Client is solely responsible for all costs
associated with maintaining access to such third-party systems, software and
accounts.
(e)
Where information is transferred to a third party
service, or from a third party service to the Platform, the Provider will not
be liable for any Loss arising from the use of that information by that third party
service, or use by the Platform of such third party service information.
10.
Intellectual Property Rights
10.1
The Platform and Materials
(a)
The Provider shall at all times retain all
title, rights and interest in and to the Platform and Materials including:
(i)
the Intellectual Property Rights subsisting in
each;
(ii)
any customisations of, modifications to, and
additions to, the Platform and Materials to suit the Client’s individual needs;
(iii)
information or data, object or source codes,
renderings, flowcharts, databases and other information technology relating to
or connected with the Services or Materials;
(iv)
marketing information relating to or connected
with the Platform or Materials; and
(v)
technical information, including trade secrets,
drawings, plans, encryptions, codes and product descriptions and information
relating to or connected with the Platform, however, excludes the Client Data.
(b)
No right, title and interest in any of the Platform
and Materials is transferred or granted to the Client except so far as
expressly stated in this Agreement. The Client must not use the Platform in any
way that is inconsistent with the Provider’s ownership or that is otherwise in
contravention of this Agreement.
(c)
For the avoidance of doubt, the Client has no
right to access the software code (including object code, intermediate code and
source code) of the Platform, either during or after the Term.
10.2
Client Data
(a)
The Client (or its appropriate licensors) shall
at all times retain ownership of the Client Data including the Intellectual
Property Rights subsisting in it.
(b)
The Client is solely responsible for inputting
any Client Data. The Provider may, in its absolute discretion, refuse to accept
the input of Client Data to the Platform or delete any data or files containing
Client Data. The Client agrees that the Provider shall not be liable to the
Client for any Loss the Client may suffer as a result of this. The Client
acknowledges and agrees that the Client will not submit to the Platform:
(i)
any other data that is protected by any law or
regulation; or
(ii)
any data that creates any liability or damages
for the Provider.
(c)
The Client hereby grants to the Provider an
irrevocable, royalty free, worldwide, perpetual, transferable, non-exclusive
license to use, process, access, modify, communicate, display, copy, reproduce,
store, distribute, publish, export, adapt, edit and translate the Client Data
to the extent reasonably required:
(i)
to provide the Services;
(ii)
to enable the Client to share the Client Data or
interact with other people or distribute and display the Client Data;
(iii)
for training and analytical purposes, including
for the development of artificial intelligence products;
(iv)
for the performance of the Provider’s
obligations; and
(v)
the exercise of the Provider’s rights under this
Agreement,
together
with the right to sub-license these rights to its hosting, connectivity and
telecommunications service providers to the extent reasonably required for the
performance of the Provider’s obligations and the exercise of the Provider’s
rights under this Agreement. The Client acknowledges that if they make a public
dashboard or share a dashboard, the Client is providing anyone with access
rights to see the Client Data.
(d)
The Client also grants the Provider an
irrevocable, non-exclusive licence to use the Client Data as non-personally
identifiable data in aggregated and blinded formats where the data provides no
identifying, referencing or implication of an association with the Client, only
for the purposes of display on the Platform, improving the Platform, bench
marking, research and marketing analysis, surveys, reports and studies, and to
measure any metrics associated with the Client’s use of the Platform.
(e)
The Provider warrants that it will only use the
Client Data as set out in this Agreement and the Provider’s Privacy Policy in
place from time to time..
(f)
The Client warrants to the Provider that:
(i)
the Client owns or has the necessary rights,
releases, permissions and licences to transmit such Client Data through the Platform
and for the Provider to use such Client Data in accordance with this Agreement;
(ii)
any Client Data provided will not infringe any third-party
rights (including intellectual property or confidentiality obligations) nor
give rise to a liability to make royalty or other payments to a third-party;
(iii)
the use of the Client Data by the Provider or
its licensees in accordance with this Agreement will not:
A.
breach the provisions of any law, statute or
regulation;
B.
give rise to any cause of action against the
Provider,
in each
case in any jurisdiction and under any Applicable Law.
11.
RESTRICTION OF ACCESS TO client data
11.1
Subject to the other terms of this clause, in
the event that:
(a)
the Client fails to pay any part of the Fees or
other monies payable by the Client under or in connection with this Agreement
by its due date; or
(b)
this Agreement and/or the Client’s access to the
Platform is suspended, restricted or terminated; or
(c)
the Client closes their account or their
subscription or terminates this Agreement,
the
Client’s access to the Client Data will be immediately revoked and the Client’s
Account will become suspended. For the avoidance of doubt the Client will have
no access to the Client Data (including access to download any Client Data that
is available for them to download) while the Client’s Account is suspended.
11.2
In the event that the Client’s Account is
suspended for more than 60 days, then the Client acknowledges and agrees that
the Client's Account (including its subscription and any Client Data stored
associated with that Account) will be deleted.
11.3
Subject to the other terms of this clause, prior
to termination of this Agreement or the Client’s Account otherwise becoming deleted,
the Client is solely responsible for downloading any Client Data that is
available for download from the Platform. Only the Client Data that is made
available in the format as specified on the Platform may be downloaded. The
Provider does not guarantee, represent or warrant that all of the Client Data
will be able to be downloaded as not all Client Data is made available for
download.
11.4
Following termination of this Agreement, or the
Client’s Account becoming deleted, the Provider reserves the right to delete the
Client’s Account and all Client Data from the Platform and is under no
obligation to provide any notice or copies of such Client Data to the Client
prior to its deletion.
12.
Warranties
12.1
The Client warrants that it has:
(a)
the legal right and authority to enter into this
Agreement and to perform its obligations under this Agreement; and
(b)
not relied upon any representations, warranties
or conditions offered or made by or on behalf of the Provider except to the
extent expressly set out in this Agreement.
12.2
All of the parties' warranties and
representations in respect of the subject matter of this Agreement are
expressly set out in this Agreement. To the maximum extent permitted by Applicable
Law, no other warranties or representations concerning the subject matter of this
Agreement will be implied into this Agreement or any related contract.
13.2
Without limiting clause
13.1
,
the Client acknowledges and agrees that:
(a)
the Provider does not guarantee continuous,
uninterrupted or secure access to its Platform or that any information provided
by the Provider is up to date and accurate;
(b)
the Provider does not warrant that the use of
the Platform will result in the Client or its Authorised Users achieving any
specific result;
(c)
the Provider makes no representations about the
suitability of the Platform for any purpose;
(d)
the Provider does not guarantee the performance
of any backup or storage of the Client Data;
(e)
the Provider makes no guarantees that there will
be no loss or corruption of Client Data at any time;
(f)
the Provider cannot guarantee the accuracy,
currency, suitability, reliability and availability of the Platform and any
content gained within (this is due to software bugs as described below);
(g)
the information provided on and in the Platform
is general information and is not in the nature of financial, legal or any form
of advice. The Client should obtain advice before making any decision based on
the Platform;
(h)
the Services are tools that are not intended to
replace the professional skills and judgment of the Client and its employees,
agents, and consultants. The Client is solely responsible for the accuracy and
adequacy of information and data furnished for processing and any use made by
the Client of the output of the Services or any reliance thereon by the Client
or users of the Client’s product;
(i)
the Provider reserves the right to withdraw, or
amend, update or change the functionality or content of the Platform at any
time, without notice;
(j)
complex software is never wholly free from
defects, errors and bugs, and the Provider gives no warranty or representation
that the Platform will be wholly free from defects, errors and bugs;
(k)
the Provider will maintain technical and
organisational measures to protect the security of the Client Data that it
considers appropriate. However, the Provider does not guarantee that
unauthorised third parties will never be able to defeat those measures to
access the Client Data for improper purposes. The Client acknowledges that
there are risks inherent in internet connectivity that could result in the loss
of privacy, confidential information and Client Data. Accordingly, any Client
Data that is transmitted by the Client is transmitted solely at the Client’s
risk. The Client is solely liable for their Client Data.
13.3
The Client acknowledges and agrees that the
Platform necessarily involves the transmission of data over networks that are
not owned, operated, or controlled by the Provider. The Provider is not
responsible for any intercepted, lost, altered, stolen, or otherwise modified
data that is transmitted across such networks. By using the Platform, the
Client accepts all risks and agrees that the Provider will not have any
liability for damages or equitable relief in any way.
13.4
The Client is solely responsible and liable for
the maintenance and backup of all Client Data.
14.1
Subject to the other terms of this clause, each
party excludes all rights, representations, guarantees, conditions, warranties,
undertakings, remedies or other terms in relation to the Services provided by
that party, that are not expressly set out in this Agreement to the maximum
extent permitted by law.
14.2
Concerning the liability of each party to the
other party, each party will not be liable for any Loss to the extent that:
(a)
it is caused by the other party’s negligent act
or omission;
(b)
it results from the other party failing to take
reasonable steps to avoid or minimise the Loss; and
(c)
it is caused by events outside of that party’s
reasonable control.
14.3
Without limiting the other terms of this clause,
because of the nature of the Services, which combines public and private
information that is conveyed over the public internet, to the maximum extent
permitted by law and except to the extent caused by the Provider’s negligent
act or omission:
(a)
the Provider shall not be held liable for any
damage caused as a result of the Client's use of the Service, its
unavailability, or any errors or faults in the Service;
(b)
the Client alone shall be responsible and liable
for the maintenance and backup of all the Client's data; and
(c)
the Client will be responsible for any usage or
breach of any data rule, regulation, or restriction, including but not limited
to any GDPR restriction.
14.4
Subject to the other terms of this clause, the
liability of either party for any Loss arising out of or in connection with
this Agreement, including any breach by that party of this Agreement however
arising, under any indemnity, in tort (including negligence), under any
statute, custom, law or on any other basis, will not exceed an amount equal to
the amount of the Fees payable for the Services most directly related to the
claim. The liability of either party for any claim arising out of or in
connection with any Service will not exceed an amount equal to the amount of
the Fees payable for such Service. The total aggregate liability of either
party for each and all claims arising out of or in connection with this
Agreement will not exceed an amount equal to the aggregate total amount of all
Fees paid or payable under the Agreement in the 12 month period immediately
preceding the date of the event giving rise to the claim.
14.5
The limitation and exclusion of liability in
this clause applies whether the liability claim is based on breach of contract,
under a warranty or an indemnity, tort (including negligence), under statute,
in equity or otherwise.
14.6
Without limitation to the other terms of this
clause, each party excludes any liability to the other party, whether in
contract, tort (including negligence) or otherwise, for any special, indirect
or consequential loss arising under or in connection with this Agreement.
14.7
Notwithstanding anything else in this clause,
each party’s liability will be reduced to the extent the Loss or damage is
caused by or contributed to by the other party or its Personnel.
15.
Indemnity
15.1
Subject to the terms of this Agreement, and
except to the extent caused or contributed to by breach of this Agreement, each
party (Indemnifying Party) indemnifies the other party (Indemnified
Party) against, and holds the Indemnified Party harmless from, any Losses
(including any direct, indirect, special or consequential Losses) and all
interest, penalties and legal costs (calculated on a full indemnity basis) and
all other professional costs and expenses suffered or incurred by the
Indemnified Party arising out of or in connection with:
(a)
the Indemnifying Party’s breach or negligent
performance or non-performance of this Agreement;
(b)
the enforcement of this Agreement; and
(c)
any act, omission or wilful misconduct of the
Indemnifying Party or the Indemnifying Party’s Personnel (including any
negligent act or omission).
16.1
16.2
On providing the notice in clause
16.1
,
the Provider will have the time for performance of the affected obligations
extended for a period equivalent to the period during which performance has
been delayed, hindered or prevented, however, the Provider must continue to use
all reasonable endeavours to perform those obligations. During such period the
Fees will be abated to the extent that the Platform is not accessible by the
Client.
16.3
The
performance of the affected obligations must be resumed as soon as practicable
after such Force Majeure Event is removed or has ceased.
17.
Termination and Suspension
17.1
Termination
for Breach
(a)
Either party may terminate this Agreement
immediately by giving written notice to the
other party in the event that:
(i)
the other party breaches any term of this
Agreement, and if that breach is capable of remedy, fails to rectify that
breach within 14 days of being given a notice to do so; or
(ii)
the other party suffers an Insolvency Event.
(ii)
the Provider reasonably believes that the Client
is engaged in illegal or fraudulent use of the Services;
(iii)
the Provider reasonably believes that the Client
Data is inappropriate or unlawful; or
(iv)
the Provider reasonably believes that the Client
is using the Services in a way that would cause Loss or damage to or otherwise
cause legal liability to the Provider, other users, third parties or disrupt
others’ use of the Services.
17.2
Termination for convenience
(a)
Either party may terminate this Agreement by
giving the other party 90 days’ written notice of termination at any time. Such
termination will take effect at the end of the then current Initial Term or
Further Term (as applicable) in which the 90 days notice expires.
(b)
In the event that the Provider, in its
discretion, permits the Client to terminate this Agreement prior to the expiry
of the then current Further Term, the Client agrees to pay to the Provider:
(i)
the Fees during the 90-day cancellation notice
period; and
(ii)
70% of the balance of the Fees that would have
otherwise been payable had this Agreement not been terminated prior to the
expiry of the then current Further Term.
18.
Effects of termination
18.1
On termination of this Agreement:
(a)
the right to use the Platform is revoked and the
Client’s access will be terminated;
(b)
the Client must cease using, and must ensure its
Authorised Users cease using, the Platform or any embedded codes as they relate
to the Platform;
(c)
the Client must uninstall and deliver up to the
Provider any copies of the Software (including all source code, databases and
libraries connected with the Software) in the Client’s or its Authorised User’s
possession and must grant the Provider access to its Systems promptly upon
request so that the Provider can verify the Client has complied with this
obligation; and
(d)
all amounts payable by the Client to the
Provider (including amounts that are not yet due) shall become immediately due
and payable and must be paid within 7 days of termination without set-off or
counter claim.
18.2
In the
event this Agreement is terminated by the Client under clause
17.1
or by the Provider under clause
17.1(b)(i)
, then except to the extent caused by the
Client’s default, the Client will be entitled to a pro-rata refund of any fees
paid by the Client for the unused portion of the Term.
19.
GST
.
(c)
The
recipient must pay the additional amount at the same time as the consideration
to which it is referable, and upon the issue of an invoice relating to the
supply.
(d)
Whenever
an adjustment event occurs in relation to any taxable supply to which clause
19(b)
applies:
(i)
the supplier must determine the amount of the
GST component of the consideration payable; and
(ii)
if the GST component of that consideration
differs from the amount previously paid, the amount of the difference must be
paid by, refunded to or credited to the recipient, as applicable.
20.
Confidentiality and Privacy
(a)
The parties undertake that they and their
respective Personnel will not, without the prior written consent of the other
party:
(i)
disclose the Confidential Information of the
other party to any person; or
(ii)
use the Confidential Information of the other
party for their own or a third-party’s benefit.
(b)
Each party must take all reasonable steps to
ensure that the Confidential Information of the other party is only disclosed
to such of its Personnel as require that information in order to enable the
performance of this Agreement.
(c)
If requested by either party the other party
must return all Confidential Information and any copies of the Confidential
Information to the other party.
(d)
In the event that either party is requested or
becomes legally compelled to disclose any of the other party’s Confidential
Information, that party will (subject to any regulatory restrictions) provide
the other party with prompt notice so that the other party may seek such
protective order or other appropriate remedy as it thinks appropriate.
(e)
In the event of a breach or threatened breach of
the terms of this clause by either party (Breaching
Party), the other party will, as between the parties, be entitled to an
injunction restraining the Breaching Party from committing any breach of this
clause without showing or proving actual damage sustained or likely to be
sustained by the party.
(a)
In respect of any Personal Information (as
defined in the Privacy Legislation) that is included in Client Data or
otherwise provided to, collected or received by either party in connection with
the Platform, the Client:
(i)
must comply with:
A.
the Privacy Legislation (as it applies to that
party); and
B.
the applicable Policies and guidelines of the
Provider as made known from time to time; and
(ii)
grants consent to the use, collection and
disclosure of such Personal Information by the Provider in accordance with the
Privacy Policy.
(b)
The
Client warrants and represents that:
(i)
it has
the right to use the Client Data, and that it is obtained all necessary
consents and authorities on behalf of any third party for the Provider to
collect, store and use personal information (including sensitive information)
of that third party in accordance with this Agreement;
(ii)
the
Client Data and the use of the Client Data by the Provider/Platform is not in
violation of any Privacy Legislation and Applicable Law; and
(iii)
all
Personal Information that it provides to the Provider complies with this clause
and this Agreement at all times. Immediately upon the Client becoming aware of
any breach by it of any Privacy Legislation in respect of Personal Information
provided to the Provider, the Client must inform the Provider of this.
(c)
If either party receives a request for access to
or correction of any Personal Information from any person (including the Office
of the Australian Information Commissioner) prior to providing such access to
or correcting the information it must notify the other party.
21.
Notices
21.1
All notices authorised or required under this
Agreement to be given by a party to the other shall be in writing sent by email
or delivered personally or sent by pre-paid registered post and in each case
addressed to the other party at that party's Address for Service or as the case
may be at such other address as a party may from time to time notify to the
other.
21.2
The following shall constitute proof of receipt:
(a)
proof by posting by registered post; or
(b)
proof of dispatch by email.
21.3
Receipt of a notice given under this Agreement
will be deemed to occur:
(a)
in the case of a communication sent by pre-paid
registered post, on the third business day after posting;
(b)
in the case of an email, on the business day
immediately following the day of dispatch.
21.4
If a notice is sent via post, it must also be sent via email.
22.
Testimonial and publicity rights
22.1
In consideration of the Provider providing the
Services, the Client agrees that it may be identified as a client on the
Provider’s website or other marketing materials, and that the Provider may use
the Client’s business name and logo for this purpose.
23.
Feedback
23.1
It is anticipated that the Client, as a user of
the Platform or its services, may provide suggestions, comments, or other
feedback (collectively known as Feedback) to the Provider.
23.2
Feedback shall be deemed the sole property of
the Provider without restrictions or limitations of any kind. The Provider will
be free to adopt such Feedback for any of its products or services and use it
in any other manner, and disclose, reproduce, license, or otherwise distribute
and exploit the Feedback as it sees fit, entirely without obligation or
restriction of any kind on account of intellectual property rights. The Client
hereby waives any right to the Feedback, including, but not limited to, moral
rights and any right for royalties or any other consideration.
23.3
The Client hereby grants the Provider a
worldwide, irrevocable, non-exclusive, royalty-free, perpetual, sublicensable,
and transferable license to use, reproduce, distribute, prepare derivative
works of, display, and perform any information and/or content that the Client
posts, discloses, publishes, or otherwise makes available. This includes use in
the Provider’s webinars, examples provided in customer forums/blogs, community
forums or blogs, or any other similar event or venue. This includes the ability
to publish and redistribute part or all of such information or content (and
derivative works thereof) in any media formats and through any media channels,
and the Client hereby waives any moral rights in such information or content,
to the extent permitted by law.
24.
General Provisions
24.1
Variation
(a)
The Provider may vary the terms of this
Agreement immediately, without notice to the Client, where the Provider
considers that the change is likely to benefit the Client or otherwise have a
neutral impact on the Client.
(b)
The Provider may also vary the terms of this
Agreement on giving 3 days’ notice if the Provider considers that the change
will have a minor detrimental impact on the Client or where such change is
necessary and reasonable (for example to reflect any changes to the Services or
to comply with legal requirements). The Provider may lessen this period of time
where necessary to comply with any legal requirements or notices (where
urgent).
(c)
The Provider may also vary the terms of this
Agreement on giving 30 days’ notice if the Provider considers that the change
will have more than a minor detrimental impact on the Client. In such
circumstances, if the Client does not agree to the change then they may reject
the change and terminate this Agreement within 30 days of the Provider giving
notice of the change.
24.2
(b)
Words or conduct referred to in clause
24.2(a)
include any delay in exercising a right, any election between rights and
remedies and any conduct that might otherwise give rise to an estoppel.
24.3
Assignment, Novation and Other
Dealings
Any rights
of a party that arise out of or under this Agreement are not assignable or
capable of novation by that party without the prior written consent of the
other party, whose consent must not be unreasonably withheld.
24.4
Counterparts
This Agreement may be executed in any number of
counterparts. All counterparts taken together constitute one instrument. A
party may execute this Agreement by signing any counterpart. The date on which
the last counterpart is executed is the date of this Agreement. Communication
of the fact of execution to the other parties may be made by sending evidence
of execution by email.
24.5
Electronic consent
The parties consent to the execution of this Agreement
and the receipt of any notices pursuant to this Agreement by electronic means. Where
a party executes this Agreement by electronic means they agree to be bound by
such electronic signatures. Delivery of an executed counterpart of a signature
page to this Agreement by facsimile or in electronic format (e.g.,
".pdf" or ".tif") shall be effective as delivery of a
manually executed counterpart of this Agreement.
24.6
Costs
24.7
Severability
(a)
If
the whole or any part of a provision of this Agreement is or becomes invalid or
unenforceable under the law of any jurisdiction, it is severed in that
jurisdiction to the extent that it is invalid or unenforceable and whether it
is in severable terms or not.
(b)
Clause
24.7(a)
does not apply if the severance of a provision of this Agreement in accordance
with that clause would materially affect or alter the nature or effect of the
parties’ obligations under this Agreement.
24.8
No Merger
On
completion or termination of this Agreement, the rights and obligations of the
parties set out in this Agreement will not merge and any provision that has not
been fulfilled remains in force.
24.9
Survival
Any clause
which by its nature is intended to survive termination or expiry of this
Agreement will survive such termination or expiry.
24.10
Further Action
Each party
must do all things (including completing and signing all documents) reasonably
requested by the other party that are necessary to give full effect to this
Agreement and the transactions contemplated by this Agreement.
24.11
Time of the Essence
Time is of the essence in this Agreement in respect
of any date or time period and any obligation to pay money.
24.12
Relationship of the Parties
(a)
Nothing in this Agreement gives a party
authority to bind any other party in any way.
(b)
Nothing in this Agreement imposes any fiduciary
duties on a party in relation to any other party.
24.13
Remedies Cumulative
Except as provided in this Agreement and permitted
by law, the rights, powers and remedies provided in this Agreement are
cumulative with and not exclusive to the rights, powers or remedies provided by
law independently of this Agreement.
24.14
Entire agreement
This Agreement states all the express terms agreed
by the parties about its subject matter. It supersedes all prior agreements,
understandings, negotiations and discussions in respect of its subject matter.
24.15
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.
24.16
Governing Law and Jurisdiction
(a)
This Agreement is governed by the law in force
in the State.
(b)
Each
party irrevocably submits to the exclusive jurisdiction of courts exercising
jurisdiction in the State and courts of appeal from them in respect of any
proceedings arising out of or in connection with this Agreement.
(c)
Each party irrevocably waives any right it has
to object to the venue of any legal process in the courts described in clause
24.16(b)
on the basis that:
(i)
any proceeding arising out of or in connection
with this Agreement has been brought in an inconvenient forum; or
(ii)
the courts described in clause
24.16(b)
do not have jurisdiction.