iinsight Subscription Terms & Conditions
BACKGROUND
A. The Service Provider is the exclusive owner of the Service.
B. The Customer has requested and Service Provider has agreed to provide the Service to the Customer on the terms and conditions set out in this Agreement.
B. The Service Provider and Customer are hereinafter referred to as the “Parties”.
1. Definitions and Interpretation
1.1 In this Agreement the following definitions shall apply:
“Agreement” means each and every one of the terms and conditions of this Service Agreement including any document expressed to be supplementary to it;
“Business Day” means any day other than Saturday, Sunday and gazetted statutory holidays in the State of New South Wales within Australia.
“Business Hours” means the hours between 9am (AEST) and 5pm (AWST) on any Business Day.
“Commencement Date” means the date the Service Agreement is executed.
“Conditions” means the conditions specified in the Service Agreement.
“Confidential Information” means the Services and any associated software, documents and information of the disclosing Party, communicated in written, oral or electronic form, marked as proprietary, confidential or otherwise so identified, or any information that by its form, nature, content or mode of transmission would to a reasonable recipient be understood to be confidential or proprietary.
“Contract Term” means the period whereby this agreement cannot be cancelled, overriding any Termination of Service requirements as specified in Section 13.
“Consequential Loss” means loss of revenue, loss of profits, loss of goodwill, loss of anticipated savings, pure economic loss, loss of data, loss of value of equipment (other than the cost of repair or replacement), loss of opportunity or expectation loss of any other form of consequential, special, indirect, punitive or exemplary loss or damage.
“Costs” means the total amount of the costs inclusive of activities or items created against a case.
“Customer” means the party that is the signatory in the Service Agreement.
“Customer Data” means all electronic data or information provided by Customer to the Service or retrieved by Customer from the Service.
“Fees” means the fees payable by Customer under this Agreement, specified in the Service Agreement.
“Force Majeure Event” means, in respect of a Party, any event or circumstance outside that Party’s reasonable control that prevents it from fulfilling, or renders it unable to fulfil, an obligation under this Agreement, including, but not limited to, fire, storm, flood, earthquake, explosion, war, invasion, rebellion, sabotage, epidemic, labour dispute, labour shortage, failure or delay in transportation and act or omission (including laws, regulations, disapprovals or failures to approve) of any third person not within the control of a Party (including, but not limited to, subcontractors, customers, governments or government agencies).
“Insolvency Event” in respect of a Party, means:
- that Party is unable to pay its debts as and when they fall due for payment;
- that Party enters into a composition or arrangement with its creditors generally in respect of the payment of amounts owing by that party to its creditors;
- a ‘controller’ (as that term is defined in the Corporations Act), mortgagee in possession, trustee in bankruptcy or other external administrator is appointed to the assets or to manage the operations and affairs of that Party; or
- that Party ceases or suspends payment of its debts.
“Intellectual Property Rights” means copyright, trademarks, designs, patents, circuit layouts, business and domain names, inventions, other results of intellectual activity and any other intellectual property right.
“Malicious Code” means any harmful program, code or device incorporated into the Service, so that when it is operates in its intended manner, the result is:
- corruption of data stored or processed by the Service or deactivation or disabling of the Service or other hardware or software; or
- the cessation of processing of the Service or other hardware or software.
“Monthly Fee Invoice” is the invoice that is provided by Service Provider to the Customer for the fees incurred in the previous month;
“Moral Rights” means the right of integrity of authorship, the right of attribution of authorship, and the right not to have authorship falsely attributed, more particularly as described in the American Copyright Act of 1976, and rights of a similar nature anywhere in the world whether existing presently or which may in the future come into existence.
“Objectionable Material” means any material referred to in clause 6.1 (b), (c) or (d).
“Personal Information” has the same meaning given to the term by the Privacy Act.
“Privacy Act” USA State and Federal related Privacy Laws.
“Privacy Law” means, to the extent applicable:
- the Privacy Act;
- the National Privacy Principles contained in the Privacy Act or any approved privacy code (as defined in the Privacy Act) that applies to the Parties; and
- any other statute, regulation or law in the United States of America (State or Federal) which relates to the protection of Personal Information/Data Privacy and which the Parties must observe. This includes adhering to the Health Insurance Portability and Accountability Act of 1996 (HIPAA)
“Professional Service” means additional services including but not limited to software engineering developments, training, and data migrations.
“Quotation” means a formal statement setting out the estimated cost of a particular Professional Service.
“Reasonable Use” means use of the Service by the Customer in accordance with the size and breadth of their business and should not exceed the reasonable use or demands on Service Providers resources expected of a business of that size. Determination of whether the Customer is using the Service in accordance with Reasonable Use is at the sole discretion of the Service Provider, having regard to reasonable metrics including:
- storage required to host and backup data;
- sales transactions per calendar month;
- API (application programming interface) calls per five (5) minute periods;
- sales transactions per calendar month;
- bandwidth usage per twenty-four (24) hour period; and
- locations, user numbers, and/or customer volumes.
“Service” means the provision and hosting by Service Provider of the Software, including providing log-ins, managing and monitoring the hardware and Software, back-up and support.
“Service Level Agreement” means the service level agreement detailed in the Service Agreement.
“Software” means the rehabilitation case management system known as iinsight and may include the add-on modules specified in the Service Agreement if negotiated and purchased by the Customer.
“Tax” means State and Federal Taxes pertaining to the sale/delivery of goods and services.
“Territory” means the country within which the Customer operates.
“Users” means people who are authorised to access and use the Service and who have been provided with user identifications and passwords by Customer (or by Service Provider at Customer’s request) being Customer employees or means contractors who use it solely for the benefit of Customer’s internal business purposes in accordance with the terms and conditions of this Agreement.
1.2 Interpretation
Headings are for convenience only and do not affect interpretation. The following rules apply unless the context requires otherwise:
- a reference to a clause number is a reference to its subclauses;
- words in the singular number include the plural and vice versa;
- words importing a gender include any other gender;
- a reference to a person includes body corporate, unincorporated associations, and partnerships;
- a reference to this agreement includes any annexure, exhibit, or schedule and any reference schedule;
- a reference to a clause is a reference to a clause or subclause of this agreement;
- a reference to a subclause is a reference to a subclause of the clause in which that reference is made;
- where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
- monetary references are references to US currency;
- a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this agreement or any part;
- the words “include,” “including,” “for example,” or “such as” are not used as, nor are they to be interpreted as, words of limitation, and, when introducing an example, do not limit the meaning of the words to which the example relates to that example or examples of a similar kind.
2. Customer Use of Service
2.1 Service Provider grants to Customer a non-exclusive, non-transferable right to use the Service in the Territory, subject to Reasonable Use and solely for Customer’s own internal business purposes and to process Customer Data, subject to the terms of this Agreement.
2.2 Customer agrees to pay the Fees in accordance with this Agreement.
2.3 The Service commences on the Commencement Date.
2.4 Subject to clause 2.5, Customer acknowledges and agrees that its purchase of the Service is not contingent upon the delivery of any future functionality or features nor dependent on any oral or written public statements made by Service Provider regarding future functionality of features provided that, from time to time, additional functionality may be offered by Service Provider with respect to the Services at an additional Fee.
2.5 This agreement may depend on the Conditions (if any) which the Service Provider agrees to comply with as a condition of Customer entering into this Agreement.
2.6 Service Provider reserves the right to make changes and updates to the functionality and/or documentation of the Service from time to time and shall promptly advise Customer in writing of such changes and updates.
2.7 Service Provider agrees to use commercially reasonable efforts to maintain Service accessibility solely in accordance with the provisions of the Service Level Agreement (Standard) provided that in no event will any additional support or maintenance policies published by Service Provider or other contractual support provisions be applicable to this Agreement unless agreed to by the Parties in writing.
2.8Service Provider, or a third party designated by Service Provider, may during Business Hours and on reasonable advance notice describing the purpose and scope of the request, in a manner that does not unreasonably interfere with the business operations of Customer, audit Customer’s use of or access to the Services to verify Customers compliance with the provisions of this Agreement. d to by the Parties in writing.
2.9Customer is responsible for:
- all activities that occur under Customer’s User accounts;
- maintaining the security and confidentiality of all User username and passwords; and
- notifying Service Provider immediately of any unauthorised use of any Service username, password, account or any other known or suspected breach of security.
3. Service Fees
3.1Customer agrees to pay:
- the Fees as stated in the Service Agreement and in accordance with this Agreement; and
- all applicable Tax, Sales Tax, import and custom duties and any other applicable taxes relating to the Services.
3.2Service Provider reserves the right to adjust the Subscription Fee:-
- to accommodate any increase in the costs associated with the Service, where those costs form part of the Subscription Fee herein;
- on an annual basis as at 1 July each year;
- in the event that industry resolution, law or regulation causes an increase in the cost to MYP in providing the Service; andand Customer agrees that by accessing the Website after a variation to the Subscription Fee has come into effect, Customer is deemed to have agreed to that variation. Service Provider may notify Customer of a variation of the Subscription Fee either by giving Customer specific notice by publishing information about the variation on the Website.
3.3Payment obligations are non-cancellable and all Fees paid are non-refundable. Customer is not entitled to withhold or set-off any Fees due for any reason whatsoever.
3.4Monthly Fee Invoices will be issued within 2 days of the end of a calendar month. Within 7 days of issue of the invoice, payment of the invoice will be deducted from Customer’s credit card or direct debit account, whichever has been provided by Customer.
3.5Invoices relating to Professional Service Fees will be issued upon receipt of signed Quotation. Payment of the invoice will be deducted from the Customer’s credit card or direct debit account (whichever has been provided by Customer) within 5-7 days of issue of the invoice. Upon receipt of payment a commencement date will be confirmed and the required resources will be allocated accordingly, unless alternate arrangements have been agreed in writing between the Customer and the Service Provider.
3.6Customer is responsible for notifying Service Provider of changes to its billing contacts.
3.7Any amount payable by Customer which is not paid by the due date will be subject to a late payment charge equal to 1.5% per month. All costs incurred due to late payment of fees and debt collection will be reimbursed by Customer.
4. Marketing and Promotion
4.1From time to time the Service Provider may ask the Customer if they wish to engage in promotional activities. These activities can include press releases, case studies and advertising campaigns. Participation in any of these Marketing and Promotional activities is at the sole discretion of the Customer.
5. Archiving of Cases
5.1Service Provider may archive any case, only where directly requested by the Customer in writing.
6. Appropriate Use of the Service
6.1Customer will utilise the Service in accordance with Reasonable Use.
6.2Customer shall use the Service solely for its internal business purposes as contemplated by this Agreement and shall not:
- license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than Users or as otherwise contemplated by this Agreement;
- send unsolicited commercial messages in violation of applicable laws;
- send or store infringing, obscene, threatening, or otherwise unlawful material, including material that is harmful to children or violates third party privacy rights;
- send or store Malicious Code;
- interfere with or disrupt the integrity or performance of the Service or the data (other than Customer Data) contained therein; or
- attempt to gain unauthorised access to the Service or its related systems or networks.
6.3Customer will be responsible to ensure that its Users do not submit any Objectionable Material.
6.4Service Provider may, at its option, adopt rules for permitted and appropriate use and may update them from time to time on Service Provider’s website and Customer and Customer’s Users will be bound by any such rules.
6.5Service Provider reserves the right to remove any Customer Data that constitutes Objectionable Material or violates any Service Provider rules regarding appropriate use, but is not obligated to do so.
6.6Service Provider reserves the right to suspend or terminate immediately any Customer or User account or activity that is disrupting or causing harm to Service Provider’s computers, systems or infrastructure or to other parties, or is in violation of any state or federal laws relating to unsolicited commercial messages or otherwise.
7. Out of Scope
7.1Additional Professional services by Service Provider to Customer are available at Service Provider’s then current rates at the time the professional services are requested, pursuant to a separate services agreement including:
- recovery or restoration of Customer Data deleted by Customer;
- assistance with configuration or other implementation of the Service;
- Service instruction or other education or training; and
- termination and migration assistance.
8. Disaster Recovery and Backup
8.1Subject to 8.2, Service Provider will maintain a back up and disaster recovery system with respect to the Service and will use commercially reasonable efforts to perform the disaster recovery plan in a timely manner in the event of a disaster.
8.2If a Force Majeure Event or any other event adversely affects Service Provider’s ability to backup or recover Customer Data, Customer acknowledges and agrees that such Customer Data may not be recoverable and Customer accepts responsibility for the re-entry of the data.
9. Onsite Support
9.1If Customer requests Service Provider to provide on-site support, Service Provider shall do so as soon as practicable, subject to Customer paying all out of pocket expenses associated with travel, accommodation and other relevant expenses (Expenses). Customer is deemed to agree to payment of the Expenses upon requesting the on-site support. The relevant on-site support Expenses will be charged to the Customer in the next Monthly Fee Invoice and is payable in accordance with this Agreement.
9.2Service Provider does not warrant that it will be capable of promptly receiving, processing or otherwise acting upon a request for support which is made outside the Business Hours or that it can provide on-site support services outside Business Hours.
9.3Service Provider shall be entitled to charge Customer additional fees for any on-site visit at the request of Customer where no fault in the Program is found to exist.
10. Customer Data
10.1Service Provider acknowledges Customer’s rights, title, and interest in and to all Customer Data. Customer Data is deemed Confidential Information under this Agreement. Service Provider shall not access Customer’s User accounts, or Customer Data, except to respond to service or technical problems or at Customer’s request. Recovery of any Customer Data deleted by Customer shall be the responsibility of Customer. The Service including Customer Data shall be segregated from any other Service which Service Provider may provide for other customers.
10.2Customer is solely responsible for all Customer Data, whether publicly posted or privately transmitted, that Customer uploads, posts, e-mails, transmits or otherwise makes available on the Service. Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of Customer Data. Customer Data will be protected by Service Provider with at least the same protective precautions that Service Provider takes to protect its similar proprietary or Confidential Information from unauthorised disclosure.
10.3Service Provider will not, without Customer’s prior written consent, disclose any of Customer Data to any third party, except to those bona fide individuals whose access is necessary to enable Service Provider to perform its obligations under this Agreement.
10.4Subject to Service Provider’s responsibilities of confidentiality set out in this Agreement, Service Provider will be not be responsible for any unauthorised access to or alteration, theft or destruction of Customer Data through accident, fraudulent means, or any other reason, unless such access, alteration, theft or destruction is caused as a direct result of Service Provider’s gross negligence or intentional misconduct and in that case, Service Provider’s liability will be limited to commercially reasonable efforts to restore or recover Customer Data to the most recent back-up of Customer Data.
11. Confidentiality and Privacy
11.1The Parties agree that Confidential Information furnished to a Party (“Receiving Party”) shall be used and reproduced by the Receiving Party only in connection with that Party’s obligations under this Agreement. Except as specifically stated herein, neither Party grants to the other any right, title or interest in any of its Confidential Information.
11.2A Receiving Party shall treat as secret and confidential all or any Confidential Information of the other Party acquired by it from the other Party during the performance of this Agreement by means that are no less restrictive than those used for its own Confidential Information.
11.3The Receiving Party is permitted to disclose Confidential Information:
- where such disclosure is necessary or required to perform the Receiving Party’s obligations under this Agreement, but only then to the extent as may be necessary or required to perform those obligations; and
- in connection with the requirements of law, regulation or court order, provided that the Receiving Party promptly notifies the other Party of any such requirement and cooperates with any attempt to procure a protective order or similar treatment.
11.4The Receiving Party is not required to treat as Confidential Information information which:
- is available to the public (other than through breach of an obligation of confidentiality);
- the Receiving Party can prove it lawfully possessed before obtaining it in connection with this Agreement;
- is rightfully received by the Receiving Party from a third party without a duty of confidentiality; or
- which is independently developed by the Receiving Party.
11.5The Program and related documentation and the Service are Confidential Information of Service Provider.
12. Privacy
12.1Each Party will ensure that its representatives are aware of the respective Parties’ obligations under the Privacy Law and under this clause 12 in relation to the collection, storage, use and disclosure of Personal Information.
12.2Each Party will at all times comply with its obligations under the Privacy Law.
12.3Each Party will, to the extent reasonably requested by the other Party, assist the other Party to comply with its respective obligations under the Privacy Law, including complying with its obligations under National Privacy Principle 1.5 (Australia) and under State and Federal Privacy Laws (USA). Including the Health Insurance Portability and Accountability Act of 1996 (HIPAA)
12.4Each Party will immediately notify the other Party if it receives a complaint in relation to, or a request for access to or amendment or correction of, Personal Information.
12.5Each Party will take reasonable steps to assist the other Party to resolve a complaint or respond to a request in relation to Personal Information.
12.6Subject to the requirements of any law, each Party, if requested to do so by the other Party, will return all copies of the relevant Personal Information received from the other Party or follow the other Party’s reasonable instructions to destroy, erase or de-identify all tangible and intangible records of that Personal Information.
13. Termination and Service Cancellation
13.1Service Provider may immediately terminate or suspend Customer’s use of the Service or terminate this Agreement, if Customer:
- fails to pay any applicable Fees when due;
- breaches or otherwise fails to comply with this Agreement and where the breach is capable of remedy, fails to remedy the breach within 30 days of being notified in writing; or
- is the subject of an Insolvency Event.
13.2Service Provider may terminate or suspend Customer’s use of the Service or terminate this Agreement by giving Customer 30 days’ notice in writing.
13.3Customer may terminate the Agreement by giving Service Provider 30 days’ notice in writing.
13.4Upon termination of this Agreement by Service Provider as a result of Customer’s breach, Service Provider will have no obligation to refund to Customer any Fees paid by Customer.
13.5In the event Service Provider (or its successor) permanently ceases to operate the Service, Service Provider will refund to Customer any pre-paid fees (if any) for the remaining months where Customer no longer has access to the Service.
13.6Where a notice of termination is given by Customer in accordance with clauses 13.2 and 13.3, Service Provider must, subject to Customer complying with all its obligations under this Agreement, continue to provide the Service to Customer until the notice period has elapsed.
14. Proprietary Rights
14.1Service Provider owns all right, title and interest, including all Intellectual Property Rights, in and to the Service, the Program, materials and other related content (excluding Customer Data), and any derivatives, suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any other party relating to the Service. In addition, the Intellectual Property Rights in all content published on the Service by Service Provider, including reports, presentations, written content, graphics, images, marks, logos, sound or video clips, and Flash or Java animation, are held by Service Provider or Service Provider’s partners or users.
14.2Customer shall not:
- modify, copy or create derivative works based on the Program or Service;
- reverse assemble or reverse compile or directly or indirectly allow or cause a third party to reverse assemble or reverse compile the whole or any part of the Program or Service;
- Access or use the Service to:
- build a competitive product or service;
- copy any ideas, features, functions or graphics of the Service.
14.3Service Provider shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relation to the operation of the Service.
14.4Service Provider may use software under licence in providing the Service which Customer and its Users may access or use with Service Provider’s consent.
15. Intellectual Property Rights Indemnities
15.1Subject to clauses 15.2, 15.4 and 15.5, Service Provider indemnifies Customer against liability under any final judgment in proceedings brought by a third party against Customer which determines that Customer’s use of the Service or Program constitutes an infringement in Australia of any Intellectual Property Rights of the third party by reason of the Service or Program infringing the Intellectual Property Rights of the third party.
15.2Service Provider shall not be required to indemnify Customer as provided in clause 15.1 unless Customer:
- notifies Service Provider in writing as soon as practicable of any infringement, suspected infringement or alleged infringement;
- gives Service Provider the option to conduct the defence of such a claim, including negotiations for settlement or compromise prior to the institution of legal proceedings; and
- provides Service Provider with reasonable assistance in conducting the defence of such a claim.
15.3In case of such a claim, Service Provider may, at its discretion:
- modify, alter or substitute the infringing part of the Service or Program at its own expense in order to avoid continuing infringement;
- procure for Customer the authority to continue the use and possession of the Service or Program; or
- if it deems such remedies not practicable, terminate the Service and this Agreement without penalty, provided that in case of such termination, Customer will receive a pro-rata refund of the Fees prepaid for the Service not yet furnished as of the date of termination.
15.4Service Provider shall not indemnify Customer to the extent that an infringement, suspected infringement or alleged infringement arises from:
- use of Service in combination by any means and in any form with other goods or services not specifically approved by Service Provider;
- use of Service in a manner or for a purpose not reasonably contemplated or not authorised by Service Provider; or
- any transaction entered into by Customer relating to the Service without Service Provider’s prior consent in writing.
15.5In the event that proceedings are brought or threatened by a third party against Customer alleging that Customer’s use of the Service constitutes an infringement of Intellectual Property Rights, Service Provider may at its option and at its own expense conduct the defence of such proceedings.
15.6Customer shall provide all necessary co-operation, information and assistance to Service Provider in the conduct of the defence of proceedings referred to in clause 15.5.
15.7Customer shall indemnify Service Provider against any loss, costs, expenses, demands or liability, whether direct or indirect, arising out of a claim by a third party alleging infringement of its Intellectual Property Rights if:
- the claim arises from an event specified in clause 15.4; or
- the ability of Service Provider to defend the claim has been prejudiced by the failure of Customer to comply with any requirements of clauses 15.2 or 15.6.
15.8Customer must not do anything that is, or is likely to be, an infringement of, or otherwise inconsistent with, any Moral Rights in any part or parts of Service.
15.9Customer will defend, indemnify, and hold Service Provider (and its officers, directors, employees and agents) harmless:
- from and against all loss or damage (including Consequential Loss) which may be suffered or incurred or which may arise directly or indirectly in respect of a claim, suit, action or proceeding by a third party:
- alleging that Customer Data or Customer’s use of the Services in breach of this Agreement, infringes the Intellectual Property Rights or other rights of a third party or violates applicable law; or
- arising out of breach of clause 12.6;
- from any expense or cost incurred by Service Provider arising from any third party subpoena or court order or process that seeks Customer Data and/or other Customer-related information or data including prompt payment of all costs (including reasonable legal expenses).
16. Warranty and Implied Terms
16.1Each Party represents and warrants that it has the legal power to enter into this Agreement.
16.2Service Provider represents and warrants that:
- it owns or otherwise has sufficient rights in the Service to grant Customer the rights to access and use the Service granted herein;
- it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision of the Service; and
- the Service shall perform in all material respects to the functionality as described in applicable online user documentation available to Customer through customer support.
16.3Subject to clause 16.5 any condition or warranty which would otherwise be implied in this Agreement is hereby excluded.
16.4All Services provided pursuant to this Agreement are provided or performed on an “as is”, “as available” basis and Customer’s use of the Service is solely at its own risk.
16.5Where legislation implies in this Agreement any condition or warranty, and that legislation prohibits provisions in a contract excluding or modifying the application of or liability under such condition or warranty but allows the liability there under to be limited, the condition or warranty shall be deemed to be included in this Agreement and the liability of Service Provider for any breach of such condition or warranty shall be limited, at the option of Service Provider, to one or more of the following:
- if the breach relates to goods:
- the replacement of the goods or the supply of equivalent goods;
- the repair of such goods;
- the payment of the cost of replacing the goods or of acquiring equivalent goods; or
- the payment of the costs of having the goods repaired; and
- if the breach relates to services, the supplying of the services again.
17. Liability of Service Provider
17.1Except in relation to liability for personal injury (including sickness and death) caused by the negligence or wilful default of Service Provider, Service Provider shall have no liability to Customer in respect of any loss or damage (including Consequential Loss) which may be suffered or incurred in respect of goods or services supplied pursuant to this Agreement or in respect of a failure or omission on the part of Service Provider to comply with its obligations under this Agreement.
17.2Subject to clause 17.3, Customer warrants that it has not relied on any representation made by Service Provider 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 by Service Provider.
17.3Customer acknowledges that to the extent Service Provider has made any representation which is not otherwise expressly stated in this Agreement, Customer has been provided with an opportunity to independently verify the accuracy of that representation.
17.4Customer shall at all times indemnify and hold harmless Service Provider and its officers, employees and agents (“those indemnified”) from and against any loss (including reasonable legal costs and expenses) or liability reasonably incurred or suffered by any of those indemnified arising from any proceedings against those indemnified where such loss or liability was caused by:
- a breach by Customer of its obligations under this Agreement; or
- any wilful, unlawful or negligent act or omission of Customer.
17.5Neither Party will be liable to the other Party for any Consequential Loss which may be suffered or incurred under any theory of liability, whether based on breach of contract, breach of statute, tort (including any negligent act or omission) and whether or not the Party has been advised of the possibility of such loss or damage.
17.6In the event that any exclusion or limitation contained in this Agreement shall be held to be invalid for any reason and to the extent that Service Provider becomes liable for loss or damage that may lawfully be limited; such liability will not exceed the amount paid by Customer for the 3 months immediately preceding the month in which the claim arose.
18. General Provisions
18.1Customer may not assign this Agreement, the use of the Service, or any other rights and obligations under this Agreement without the prior written consent of Service Provider.
18.2Service Provider shall have the unrestricted right to assign all or part of its rights and obligations under this Agreement.
18.3Each Party shall bear its own costs arising out of the preparation, negotiations and execution of this Agreement.
18.4A notice, demand, consent, approval or communication given or made under this Agreement (“Notice”):
- must be in legible writing, in English;
- must be duly signed by the issuing Party’s Contract Representative;
- must be delivered by hand or sent by prepaid post, email or facsimile to the address of the other Party as specified in the Reference Schedule;
- will be taken to be duly given or made:
- if hand delivered, when delivered;
- if sent by prepaid post, on the second Business Day after the date of posting (or on the seventh Business Day after the date of posting if posted to or from a place outside Australia);
- if by facsimile or email transmission, on the day of transmission as evidenced by a fax or email transmission record indicating that the transmission has been made without error before 5:00pm on a Business Day, otherwise on the next Business Day.
18.5If any of these terms and conditions (or part of them) is void or unenforceable, it is deemed to be removed and no longer forms part of the Agreement and the remaining terms and conditions or parts of the term or condition of this Agreement continue in full force and effect.
18.6No forbearance, delay or indulgence by a Party in enforcing the provisions of this Agreement shall prejudice or restrict the rights of the Party, nor shall any waiver of those rights operate as a waiver of any subsequent breach.
18.7A Party (“Affected Party”) shall not be liable to the other Party for any delay or failure to perform its obligations pursuant to this Agreement if such delay is due to a Force Majeure Event. The Affected Party shall notify the other Party of a Force Majeure Event and in the event that Service Provider is the Affected Party and cannot provide the Service, Customer shall have the option of suspending the Fees charged for the period of the Force Majeure Event. If a Force Majeure Event continues beyond the period of seven (7) Business Days, the Parties shall in good faith negotiate to vary the terms of this Agreement as necessary and mutually agree to any change, or notification of termination.
18.8This Agreement shall be governed by and construed in accordance with the laws for the time being in force in the State of New South Wales and the Parties agree to submit to the jurisdiction of the courts and tribunals of that State.
18.9Clauses 3 (Service Fees); 10 (Customer Data); 11 (Confidentiality and Privacy); 14 (Proprietary Rights); 15 (Intellectual Property Rights Indemnities); 16 (Warranty and Implied Terms); 17 (Liability of Service Provider); and the obligation of Customer to pay any outstanding fees due under this Agreement shall survive the termination of this Agreement.
18.10This Agreement constitutes the entire agreement between the Parties in connection with its subject matter and supersedes all previous agreements, proposals, purchase orders, representations or understandings, whether oral or written, between the Parties in connection with its subject matter. No alteration or modification of this Agreement will be valid unless made in writing and signed by the Parties.
18.11This Agreement may be executed in a number of counterparts. All counterparts, taken together, constitute one instrument. A party may execute this Agreement by signing any counterpart. The Parties agree that counterparts may be exchanged by electronic mail. Each Party consents to the other Party executing this Agreement by affixing their electronic signature.
