Terms & Conditions

2.1 These terms and conditions apply to the sale of Goods and/or Services by the Company to the Customer and are incorporated into each order for Goods and/or Services by the Customer. These terms and conditions are subject to, and must be read in conjunction with:

1. any agreed Purchase Order;
2. an Invoice; and
3. any other document incorporated by reference to the above documents,

(Contract).

2.2 Where there is inconsistency between terms under the Contract, the inconsistency will be resolved by the following order of priority:

1. these standard terms and conditions;
2. Purchase Order;
3. Invoice; and
4. any other document comprising the Contract.

2.3 For the avoidance of doubt, any terms contained in a document supplied by the Customer, including the Purchase Order, will not form part of the Contract unless agreed by the Company and the Customer in writing.

2.4 Unless otherwise expressly agreed by the parties, the Customer is deemed to have accepted the terms of the Contract, and agrees to be bound by the Contract, upon the Customer placing a Purchase Order in accordance with clause 3.7.

3.1 Company Goods and Services are billed as specified in the Purchase Order. The Company will issue Invoices to the Customer in accordance with the pricing, frequency, and payment terms specified in the Purchase Order and these terms and conditions.

3.2 Each Invoice will specify the Price payable for the relevant Goods and/or Services. Unless otherwise stated in the Purchase Order, all Invoices are payable within 14 days of the Invoice Date.

3.3 The Customer agrees to pay the Company the Price for each Good and/or Service purchased or used, in accordance with the pricing and payment terms set out in the Purchase Order and these terms and conditions. Except as indicated in these terms and conditions or required by law, amounts paid by the Customer are non-refundable.

3.4 If the Customer's use of the Services exceeds the User limit indicated in the Purchase Order, the Company may charge the Customer for the additional use on a pro rata basis. Any such additional amounts will be included on the Invoice or in a separate Invoice.

3.5 The Customer acknowledges that it is under no obligation to place an order or any number of orders over a particular period or at all with the Company.

3.6 If the Company's costs of supplying the Goods and/or Services change prior to the Customer accepting the Purchase Order, the Company is entitled to vary the Price at any time prior to the Customer's acceptance of the Purchase Order by providing written notice to the Customer.

3.7 A Customer wishing to place an order with the Company must submit a written Purchase Order with respect to the Goods and/or Services to be supplied by the Company, and such Purchase Order must specify:

1. the date the order is placed;
2. the Goods and/or Services required;
3. the quantity of the Goods and/or Services ordered; and
4. any other relevant instructions or information.

3.8 The Company may:

1. accept or decline a Purchase Order in whole or in part;
2. if it has reasonable doubts as to the solvency of a Customer, accept a Purchase Order the Company considers necessary and reasonable to protect its legitimate business interests; or
3. if satisfying a Purchase Order in full is untenable for the Company, and the Customer is agreeable, provide any Goods and/or Services to the Customer in instalments as agreed between the Company and the Customer in writing.

3.9 If a Customer requests the Company to reference a Purchase Order, the Customer acknowledges and agrees that any reference to a Purchase Order in a Purchase Order itself or in any Invoice is included solely for Customer's administrative convenience. No such reference, and no delivery of any Goods or Services following receipt of a Purchase Order, will constitute an acknowledgement of, or agreement to, any terms or conditions contained in or attached to that Purchase Order. Nor will any such reference be taken to amend, modify, supersede, or supplement these terms and conditions in any way.

3.10 The Company is deemed to have accepted the Customer's Purchase Order if the Company:

1. provides written confirmation to such effect;
2. does not reject the Purchase Order in whole or in part within 14 days of the Purchase Order being received by the Company; or
3. otherwise delivers the Goods and/or Services in accordance with the Customer's Purchase Order.

4.1 The Company continually changes and improves its Goods and/or Services. The Company may alter the Goods and/or Services at any time without prior notice. The Company will provide the Customer with reasonable prior notice if the Company makes a change to the Services resulting in an overall material decrease in functionality of the Services.

4.2 If the change to the Services is unacceptable to the Customer, the Customer may stop using the Goods and/or Services, cancel their subscription or terminate the Services under these terms and conditions. If the Customer continues to use the Goods and/or Services after any amended Terms become effective, the Customer agrees to be bound by the amended Terms.

4.3 If the Company decides to stop offering some Goods and/or Services or parts of the Goods and/or Services, the Company may terminate their access to such features or Services by providing written notice to the Customer in accordance with clause 12.

4.4 The Company may limit or suspend the Services from time to time at the Company's discretion (for example, to perform scheduled maintenance or in the event of a security emergency). If the Company limits or suspends the Services, the Company will give the Customer reasonable advance notice so that the Customer can plan around it. However, there may be some situations, such as security emergencies, where it may not be practicable for the Company to give the Customer advance notice. The Company will use commercially reasonable efforts to narrow the scope and duration of the suspension or limitation as is needed to resolve the issue that prompted such action.

5.1 Subject to clause 5.6, the Customer may:

1. by written notice to the Company, request any change in the nature, scope or timing of the provision of the Goods and/or Services under the Purchase Order, including without limitation any anticipated or requested:
   1. increase, decrease or omission of any part of the Goods and/or Services; or
   2. change to the character or content of any part of the Goods and/or Services;
2. by providing 30 days prior written notice to the Company, cancel a Purchase Order.

5.2 For the avoidance of doubt, the cancellation rights outlined in clause 5.1(b) do not apply to any written agreement between the Customer and Company. Any such arrangements may only be varied or terminated in accordance with the terms of that separate agreement.

5.3 Where the Customer seeks to vary a Purchase Order in accordance with clause 5.1(a), the Company is entitled to:

1. accept the changes to the Purchase Order upon written notice to the Customer;
2. accept the changes to the Purchase Order and notify the Customer in writing of any changes to the Price of the Goods and/or Services due to the changes to the Purchase Order and, if required, negotiate a variation to the Price with the Customer pursuant to clause 6; or
3. reject the proposed changes and cancel the Purchase Order.

5.4 A variation to a Purchase Order pursuant to clause 5.1 will not take effect unless agreed by the parties in writing.

5.5 Where either:

1. the Customer cancels the Purchase Order in accordance with clause 5.1(b); or
2. the Company cancels the Purchase Order pursuant to clause 5.3(c),

the Customer will be liable to pay or reimburse the Company with respect to any Goods and/or Services delivered or any expenses reasonably incurred by the Company in expectation of delivering the Goods and/or Services in accordance with the Purchase Order (including raw materials or finished Goods specifically produced, imported or acquired by the Company to fulfil the Purchase Order), prior to the Company receiving the Customer's notice of variation or cancellation under clause 5.1.

5.6 Nothing in clause 5.1 will remove or reduce the Customer's liability to the Company under clause 5.5.

5.7 For the avoidance of doubt, once a Purchase Order has been accepted by the Company in accordance with clause 3.10(c), the Customer may only cancel it in accordance with clause 5.1(b). The Customer has no other right to vary or cancel an accepted Purchase Order.

5.8 If the Company has accepted the Customer's Purchase Order but is, for any reason, unable to supply the Customer with all or part of the Services under the accepted Purchase Order, the Company must provide the Customer with prior written notice to that effect.

5.9 The Company will not be liable to the Customer for any Loss arising from or in connection with the Company cancelling a Purchase Order under clause 5.3(c) and no Claim can be made against the Company or its Related Bodies Corporate by the Customer or a third party with respect to any such Loss.

6.1 Subject to this clause 6 and unless otherwise specified, the Price will be specified in the Invoice.

6.2 Unless specified otherwise or agreed in writing, all prices are excluding GST, which is payable in addition to the Price where applicable.

6.3 The Company must notify the Customer of any proposed variation and/or increase to the Price payable by the Customer in writing, including as a result of a change in the market price of the Goods and/or Services, freight and other third party costs, or currency fluctuations at least 14 days prior to the date from which the proposed variation and/or increase to the Price payable by the Customer for the Goods and/or Services will come into effect.

6.4 The Company may change the Price for the Goods and/or Services, and may discontinue or vary the promotion, sale, or special offer, in its sole discretion. Any such change or discontinuance will take effect only at the commencement of the next period of supply specified in the Purchase Order and will not affect the Price payable for the period of supply then in effect.

6.5 The Company will provide Customer with reasonable notice of any increase to the Price that will apply to the next period of supply specified in the Purchase Order.

6.6 If the Customer disagrees with a proposed Price change in relation to Goods and/or Services, as notified by the Company in accordance with clause 6.3:

1. the Customer must notify the Company in writing of the reason for its dispute to the proposed Price change before the changes come into effect in accordance with clause 6.3 (Price Dispute Notice);
2. the Customer and the Company must use their best endeavours to agree on a fair and reasonable Price change for the Goods and/or Services as soon as possible following the provision of the Price Dispute Notice; and
3. if the Customer and the Company are unable to resolve any disagreement between them regarding the Price increase within 30 days of the Customer delivering a Price Dispute Notice to the Company, then:
   1. the parties must invoke the dispute resolution process in clause 19; and
   2. the Customer must pay the increased Price from the date it takes effect and comply with its other obligations under the Contract until the dispute is resolved.

6.7 The Customer agrees that the Price change will not release the Customer from its obligation to pay the entire amount of the charges for the Goods and/or Services for the Term.

6.8 If the Customer does not provide a Price Dispute Notice as required by clause 6.6(a) prior to the proposed Price change, the Customer will be deemed to have accepted the Price increase for the Services.

7.1 Unless otherwise stipulated or agreed by the Company in writing and subject to clause 7.7, payment of the Price must be made in immediately available funds by the due date specified in the Invoice, without set-off, counterclaim or deduction. Time is of the essence in relation to punctual payment.

7.2 In accordance with clause 3.2, if the Purchase Order does not specify a due date for payment, the Customer must pay the Invoice within 14 days of the Invoice Date.

7.3 Unless otherwise stipulated or agreed by the Company in writing, if an amount payable by the Customer is not paid in full by the due date, then the total Price will become immediately due and payable to the Company, irrespective of whether a portion of the Price would have become payable at a later date, and without limiting any other rights of the Company, the Company may:

1. impose interest from the due date until payment of the Price, at the rate fixed from time to time under the Penalty Interest Rates Act 1983 (Vic), calculated daily and compounding monthly; and/or
2. suspend or cease supply of the Goods and/or Services without incurring any associated liability whatsoever to the Customer.

7.4 The Customer will pay, and will indemnify the Company with respect to, all Losses incurred by the Company, its Related Bodies Corporate, advisers, agents and any other person, in respect of any action instituted or considered against the Customer, whether for debt, possession of Goods or otherwise, unless the matters the subject of the action are the subject of a dispute which is resolved in favour of the Customer pursuant to the procedures in clause 18.

7.5 The Customer agrees that the Company may Invoice the Customer for charges relating to any agreed modifications to the Purchase Order.

7.6 If the Customer disputes in good faith whether the whole or part of an Invoice submitted by the Company is payable:

1. the Customer must give written notice to the Company within 10 days of receipt of the Invoice, of the amount disputed and reasons for the dispute;
2. if the Company and the Customer are unable to resolve any dispute between them regarding the amount invoiced within five days of the Company receiving the Customer's notice under clause 7.6(a), either party may invoke the dispute resolution process in clause 19;
3. each party must comply with its other obligations under this Contract until the dispute is resolved; and
4. if the decision made or reached in respect of the dispute is that a lesser amount than the full amount of the Invoice in question is payable by the Customer, the Company must:
   1. if the Customer has paid the Invoice, promptly refund to the Customer the difference between the amount invoiced and that lesser amount; and
   2. if the Customer has not paid the invoice, issue a replacement invoice.

8.1 Any reference in this clause 8 to a term defined or used in the GST Law, unless the context indicates otherwise, is a reference to that term as defined in the GST Law.

8.2 Unless expressly stated otherwise, all amounts stated to be payable by the Customer under any Contract are exclusive of GST.

8.3 If GST is imposed on any supply made under or in accordance with any Contract, the recipient of the taxable supply must pay to the supplier an additional amount equal to the GST payable on or for the taxable supply. Payment of the additional amount will be made at the same time as payment for the taxable supply is required to be made in accordance with the Contract, subject to the provision of a tax invoice by the supplier to the recipient.

9.1 Any claim against the Company relating to damaged or incorrect Goods and/or Services, must be made by the Customer in writing within 72 hours of receipt of the Goods and/or Services. Other than what is required by law (including the Australian Consumer Law), no claim may be made outside this period.

9.2 If no written notice is given by the Customer pursuant to clause 9.1, the Company is entitled to assume the Goods and/or Services were received in good working order and condition.

9.3 If the Customer gives the Company notice under clause 9.1, the Customer must preserve the Goods and/or Services in the state in which they were delivered to the Customer and allow the Company (or its nominated agent) access to the Customer's premises to inspect the Goods and/or Services.

9.4 The Company will, at its option, pay all costs for the return of faulty Goods and/or Services.

10.1 Subject to clause 10.2, the Company retains all legal and beneficial title to any Goods supplied by the Company to a Customer, and the Customer holds the Goods as fiduciary, bailee and agent for the Company.

10.2 Title in Goods supplied by the Company does not pass to the Customer, until:

1. the Customer pays the Company in full all moneys owing or payable by the Customer; and
2. all payments have been cleared.

10.3 The Goods are supplied by the Company on the assumption that the Customer has obtained all necessary licences or permits under all relevant laws and regulations in relation to the Goods.

10.4 Other than what is required by law (including the Australian Consumer Law), the Customer assumes all risk and liability for Loss or injury to persons or to property arising out of the use, installation or possession of any of the Goods supplied by the Company.

10.5 If the Customer experiences an Event of Default before title of Goods passes to the Customer in accordance with clause 10.2, then the Customer's right to resell the Goods or use them in the ordinary course of its business ceases immediately and, without limiting any other right or remedy the Company may have, the Company may:

1. require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and
2. if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored and repossess them and for the purpose of this provision, the Customer hereby irrevocably gives its consent to the Company to enter into the premises to repossess the Goods, and indemnifies the Company from and against all costs, claims, demands or actions by any party arising from such action.

11.1 Subject to this clause 11 and to the extent permitted by law (including under the Australian Consumer Law):

1. the maximum aggregate liability of the Company for all Losses and Claims arising out of this Contract, however arising, is limited to the total Price paid or payable by the Customer to the Company in the 12 months preceding the event giving rise to the Claim;
2. the Company's liability for any Loss arising out of the Contract, including liability for breach of contract, in negligence or in tort or for any other common law or statutory action, will be limited to the extent the Loss was caused directly by the Customer or any of its representatives;
3. neither party is liable to the other party for any action, claim, suit, allegation, demand, loss, liability, damage or cost of whatsoever nature arising out of the Contract for any Consequential Loss, including liability for breach of contract, in negligence or in tort or for any other common law or statutory action, provided that nothing in this clause relieves the Customer from its obligation to pay to the Company the Price payable under the Contract.

11.2 Subject to this clause 11, any written warranty the Company provides to the Customer in this Contract and any rights which cannot be excluded by law (including under the Australian Consumer Law) (Non-Excludable Rights), all warranties, conditions, liabilities or representations (whether express, implied, statutory or otherwise) as to the quality or fitness of the Goods and/or Services or as to the accuracy of information, advice or other services concerning the Goods and/or Services, are expressly excluded.

11.3 This Contract does not exclude, restrict or modify the application of any statutory provision (including a provision of the Australian Consumer Law) where to do so would contravene that statute or cause any part of this Contract to be void.

11.4 The Company's Goods and Services come with guarantees that cannot be excluded under Australian Consumer Law. For major failures with the Services, the Customer is entitled:

1. to cancel the Customer's service contract with the Company; and
2. to receive a refund of the unused portion of the Price already paid, or compensation reflecting the reduced value of the Services.

The Customer is also entitled to choose a refund or replacement for major failures with Goods. If a failure with the Goods and/or Services do not amount to a major failure, the Customer are entitled to have the failure rectified in a reasonable time. If this is not done the Customer is entitled to a refund for the Goods and to cancel the contract for the Services and obtain a refund of any unused portion. The Customer is also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the Goods or Services.

11.5 Subject to clauses 11.2 to 11.4 (inclusive), to the extent permitted by law (including the Australian Consumer Law), the Company's liability for a breach of this Contract or any Non-Excludable Right will be limited, at the Company's option, to any one or more of the following:

1. in the case of Services supplied by the Company:
   1. the supply of the Services again; or
   2. the refund of the Price paid by the Customer for the Services; and
2. in the case of Goods supplied by the Company:
   1. the replacement of the Goods or the supply of equivalent Goods;
   2. the repair of the Goods;
   3. the payment of the cost of replacing the Goods or acquiring equivalent Goods; or
   4. the payment of the cost of having the Goods repaired.

11.6 Every exclusion or exemption from liability and every right, defence and immunity of whatsoever nature applicable to the Company or to which the Company is entitled under this clause 11 is also available and extends to protect the Personnel of the Company while acting in the course of or in connection with his or her employment or engagement, and for these purposes the Company is deemed to be acting as agent or trustee on behalf of and for the benefit of all its Personnel and all such persons are to that extent deemed to be parties to the Contract.

12.1 If the Purchase Order states that the Customer's subscription will not auto-renew, then the Customer's subscription will terminate at the end of the Term for that particular Service with no further action required by the Customer.

12.2 The Customer and the Company agree that this Contract may only be terminated:

1. by written agreement between the Company and the Customer;
2. in accordance with the provisions of clause 11.4 or 15;
3. by either party providing the other party not less than 3 months' written notice; or
4. otherwise in accordance with this clause 12.

12.3 For the avoidance of doubt, clause 12.2(c) does not apply to services supplied under a Services Agreement, which may only be terminated in accordance with termination provisions of that services agreement.

12.4 If a party to this Contract:

1. breaches any term of the Contract (including the obligation of the Customer to pay the Price) and the breaching party does not remedy that breach within 14 days of being provided with written notice by the other party; or
2. experiences an Insolvency Event,

(each an 'Event of Default'), then the non-defaulting party may immediately terminate the Contract.

12.5 Where the Company terminates the Contract following an Event of Default of the Customer, and without limiting the rights or remedies available to the Company at law, the Company is entitled to:

1. demand immediate repayment of the balance of the Price due and payable by the Customer;
2. request the immediate return of any Goods for which the Customer has not paid for; and
3. retake possession of any Goods which are unpaid by the Customer.

12.6 Where the Customer terminates the Contract following an Event of Default of the Company, and without limiting the rights or remedies available to the Customer at law, the Customer is to:

1. where the Goods and/or Services have been supplied by the Company and the Price, or a portion of the Price, has been pre-paid by the Customer, request that the Company promptly refund any portion of the Price for the Goods and/or Services which have not been delivered; and
2. where the Goods and/or Services have been supplied on credit, either:
   1. pay the balance of the Price due and payable by the Customer in respect to Goods which have been sold to, but are unpaid by, the Customer; or
   2. immediately return to the Company any Goods (at the Customer's costs) which have been sold to, but are unpaid by, the Customer, and the Customer is released from any further liability to pay a portion of the Price equal to the value of the returned Goods.

12.7 If the Contract is terminated, the Customer must, within 7 days after the date of the termination, pay the Company all amounts it owes the Company irrespective of whether those amounts have fallen due for payment and whether or not an invoice has been issued by the Company.

12.8 Clauses 1, 10, 11, 13, 16, 19, 21 and 21.2 continue to apply after termination of the Contract.

13.1 Each party warrants that it has the power to enter into the Contract and perform its obligations under the Contract.

13.2 If the party is a trustee of a trust (whether disclosed to the other party or not), the party enters into the Contract in both its capacity as trustee and in its personal capacity, and warrants that it:

1. has the right to be indemnified out of trust assets; and
2. has the power under the trust deed to sign, and enter into, the Contract.

13.3 If the party is a partner in a partnership (whether disclosed to the other party or not) all of the partners are taken to have signed, or entered into, the Contract as well as the Guarantee and Indemnity Deed.

14.1 The Services of the Company include functionality that enables the Customer to export Customer Data in their account at any time during the Term. If the functionality is not operational, the Company may assist the Customer to export any Customer Data that existed in the Customer's account at the time of termination, provided the Customer makes such request before the end of the Customer's Term. However, the Company does not guarantee that all Customer Data can be exported and only Customer Data that is permitted to be transferred to the Customer within the terms of any applicable Confidentiality Notice or other privacy setting will be transferred to the Customer. Upon the Customer's written request, the Company will delete all Customer Data.

14.2 In the course of using the Services, the Customer may transfer to the Company Customer Data containing personal data. The Customer agrees and consents to the use, transfer, processing, and storage of Customer Data in accordance with this terms and conditions and any applicable law.

14.3 The Customer is responsible for safeguarding any passwords or other credentials used to access their account. Administrator or manager accounts may not be shared and may only be used by one individual per account. The Customer is responsible for any activity occurring in the Customer's account (other than activity that the Company is directly responsible for and is not performed in accordance with the Customer's instructions), whether or not the Customer authorised that activity. If the Customer becomes aware of any unauthorised access to, or use of, their account, the Customer should immediately notify the Company.

14.4 The Customer is responsible for maintaining and updating their operating systems, Internet browsers, anti-virus software, or other software that the Customer or their Users use to access and use the Services.

14.5 The Company will retain backup copies of Customer Data made in the ordinary course of business by the Company, for the purpose of enabling appropriate disaster recovery practices. Despite any other term in the Contract, the Company will retain these backups for a period of up to 90 days from the time that each backup copy is generated. Thereafter, the Customer agrees and acknowledges that Customer Data will be irretrievably deleted from backup.

14.6 If the Company uses any third-party service with the Services, the Customer acknowledges that third party service may access or use the Customer Data. The Company will not be responsible for any act or omission of the third party, including such third party's use of Customer Data. The Company does not warrant or support any such third-party service, and the Customer should contact that third party for any issues arising from their use of the third-party service.

15.1 The Company retains sole ownership of any Intellectual Property provided by the Company to the Customer, and the Customer must not replicate or use the Intellectual Property without the prior written consent of the Company.

15.2 The Company makes no representation or warranty to the Customer of any kind, express or implied, that Goods and/or Services will not infringe any intellectual property rights of a third party.

15.3 The Customer must not use or disclose to any third party any Confidential Information disclosed by the Company or its Related Bodies Corporate to the Customer unless otherwise required under law.

15.4 The Customer retains all ownership and Intellectual Property rights to Customer Data. The Company does not claim ownership over any Customer Data. This Contract does not grant the Company any licences or rights to Customer Data except for the following licences below, or as otherwise required for us to provide the Services to the Customer or the Customer's Users.

15.5 For the Term, the Customer grants the Company a worldwide, royalty free licence to use, reproduce, distribute, modify, adapt, create derivative works, or archive Customer Data for the sole purpose of providing the Services to the Customer as contemplated by these terms and conditions. Subject to the receipt of all applicable fees, the Company grants the Customer a limited, non-exclusive, non-transferable, non-assignable and non-sublicensable license to use any Reports which the Customer can (and are authorised to) export through the functionality of the Services for the Customer's internal purposes (in each case subject to applicable Confidentiality Notices).

15.6 The Customer grants the Company a worldwide, royalty free licence to use, reproduce, distribute, modify, adapt, create derivative works, archive, or otherwise use de-identified Customer Data for creating de-identified aggregated data (Data Sets) and the purposes of Service Improvement. Data Sets may be made publicly available and may be used after termination of this Contract provided that such Data Sets cannot directly or indirectly identify the Customer or its Users.

15.7 The Customer acknowledges that, in order to ensure compliance with legal obligations, the Company may be required to review certain content submitted to the Services to determine whether it is illegal or whether it violates this Contract (such as when unlawful conduct or content is reported to us).

15.8 The Company may also prevent access to or refuse to display content that the Company reasonably believes violates the law or this Contract. However, the Company otherwise has no obligations to monitor or review any content submitted to the Services by the Customer or any other person.

15.9 If the Customer provides the Company with any feedback associated with the Services, the Company may use that feedback without any obligation to the Customer provided any feedback we use will not publicly identify the Customer or the Customer's Users.

15.10 The Company may identify the Customer (by name and logo) as a Company customer in promotional materials or during promotional events. If the Customer does not want the Customer's name and/or logo to be used in this way, please contact the Company.

15.11 Nothing in this Contract or from the Customer's use of the Services grants the Customer:

1. ownership in the Services or the content (including Reports) the Customer accesses through the Services (other than Customer Data); and
2. any right to use any Company trademarks or other Intellectual Property contained in the Company brand identity.

15.12 The Company will continue to own all right, title, and interest in and to the Services and the systems and networks used to provide such Services, including all system-generated data (e.g. dashboard data or Reports), modifications, improvements, upgrades, derivative works, and all Intellectual Property in and to any of the foregoing. Except for the express rights granted herein, the Company does not grant the Customer any other licenses, express or implied, to any of their intellectual property including software, services, or products.

15.13 If the Company believes the Services may infringe or may be alleged to infringe a third party's Intellectual Property, then the Company may:

1. obtain the right for the Customer, at the Company's expense, to continue using the Services;
2. provide a non-infringing functionally equivalent replacement; or
3. modify the Services so that they no longer infringe.

15.14 If the Company does not believe that the options outlined in clause 15.13 are commercially reasonable, then the Company may suspend or terminate the Customer's use of the impacted Services and provide the Customer with a pro rata refund of any fees prepaid by the Customer applicable to the period following the termination of such Services.

16.1 Confidential Information does not include information that:

1. is or becomes public through no fault of the Recipient;
2. the Recipient already lawfully knew;
3. was rightfully given to the Recipient by a third party free of any confidentiality duties or obligations; or
4. was independently developed by the Recipient without using the Discloser's Confidential Information.

16.2 The Recipient must:

1. protect the Discloser's Confidential Information using commercially reasonable efforts and no less than the same efforts it uses to protect its own Confidential Information;
2. not disclose the Discloser's Confidential Information, except to affiliates, employees, directors, contractors, agents, and professional advisors of the Recipient who need to know it and who have agreed in writing to keep it confidential;
3. only use the Discloser's Confidential Information to exercise its rights and fulfil its obligations under this Contract; and
4. ensure that its affiliates, employees, directors, contractors, agents and professional advisors only use the Discloser's Confidential Information to exercise its rights and fulfil its obligations under this Contract.

16.3 The Recipient may disclose the Discloser's Confidential Information to the extent required by law or legal process, but only after it, if permitted by law:

1. uses commercially reasonable efforts to notify the Discloser in writing;
2. gives the Discloser the opportunity to challenge the requirement to disclose; and
3. cooperates with the Discloser if the Discloser seeks an appropriate protective order.

16.4 The provisions of this clause will supersede any non-disclosure agreement between the Parties and such agreement will have no further force or effect.

16.5 The Customer agrees that the Company and the third-party sub-processors that are utilised by the Company to assist in providing the Services to the Customer have the right to access the Customer's account and to use, modify, reproduce, distribute, display and disclose Customer Data to the extent necessary to provide or improve or deliver the Services, including, without limitation, in response to the Customer or the Customer's Users' support requests. The Company will be responsible for all acts and omissions of its sub-processors.

16.6 Any sub-processors used by the Company will only be given access to the Customer's account and Customer Data as is reasonably necessary to provide the Services and will be subject to:

1. confidentiality obligations which are substantially consistent with the standards described in this Contract; and
2. their agreement to comply with the data transfer restrictions applicable to personal information as set forth in this Contract.

17.1 Neither the Company nor the Customer will be liable for any failure or delay in performing its obligations under the Contract if that failure or delay is due to a Force Majeure Event.

17.2 If there is a Force Majeure Event affecting the capacity of the Company or the Customer to perform the Contract, the affected party must notify the other party of the event and the likely impact on its performance under the Contract, and the obligations of the Company and the Customer under the Contract (except the Customer's obligation to pay amounts due under the Contract) will be suspended for the duration of the Force Majeure Event.

17.3 If the Force Majeure Event prevails for a continuous period of 60 days, the Company or the Customer may, by providing written notice to the other, terminate the Contract without any liability whatsoever on its part arising from such termination.

18.1 The Customer undertakes to advise the Company within 7 days of any actual or proposed change in:

1. the address of the business and the address at which the Goods will be located (if it differs from the business address);
2. the trading name of the Customer's business;
3. the person(s), the directors, the trustee or the partnership conducting the Customer's business; or
4. the status, or details of, the Customer's registration for GST purposes or ABN or ACN.

18.2 Where such a change referred to in clause 18.1 occurs, the Company may require a new application for a credit account to be made for the Company's approval and the Customer will sign all documents and do all acts and things appropriate to such new application for a credit account (including the provision of new or additional guarantees (if required)).

19.1 If any dispute arises in relation to the Contract, including in relation to its interpretation or any aspect of its performance, no party may commence any form of legal proceedings, unless and until the parties have complied with the procedures set out in this clause 19, except where a party seeks urgent interlocutory relief or the dispute relates to compliance with this clause 19.

19.2 If any dispute arises in relation to the Contract, either party may give written notice to the other party claiming that a dispute has arisen, specifying the nature of the dispute, and request that a meeting be held between one duly authorised representative of each party within 7 days.

19.3 If a party receives a notice of dispute from the other party in accordance with clause 19.2, that party, and the party that gave the notice, must cause a representative to attend at the meeting referred to in that notice, which may be held by contemporaneous linking by telephone or live audio visual transmission (or similar).

19.4 If the parties have not resolved the dispute within 7 days of the meeting referred to in clause 19.3 (or such further period as agreed in writing by them), the parties must mediate the dispute, which must be conducted in Melbourne (or as agreed in writing between the parties), in accordance with the ACICA Mediation Rules (in operation from time to time) by the Australian Centre for International Commercial Arbitration (ACICA), except where they conflict with this clause 19 in which case this clause 19 will prevail.

19.5 If the parties are required by clause 19.4 to mediate the dispute, ACICA will appoint the mediator unless the parties agree on a mediator (Mediator).

19.6 The role of the Mediator is to assist in negotiating a resolution of the dispute. The Mediator may not make a decision that is binding unless the disputing parties otherwise agree in writing.

19.7 The costs of the Mediator must be paid equally by the disputing parties but otherwise each disputing party must pay their own costs of the mediation.

19.8 If the dispute is not resolved within 7 days after referral to the Mediator, any disputing party may take legal proceedings to resolve the dispute.

19.9 For the avoidance of doubt, this clause 19 does not apply to disputes arising out of or in connection with a services agreement between the Company and the Customer.

20.1 Subject to the terms of this clause 20, the Company may amend this Contract, from time to time, acting reasonably.

20.2 Where the Company seeks to vary the Contract pursuant to clause 20.1, the Company must provide at least 14 days written notice of such proposed changes to the Customer, noting the date from which the proposed changes will come into effect.

20.3 If the Customer disagrees with a proposed change to the Contract as notified by the Company in accordance with clause 20.2:

1. the Customer must notify the Company in writing of the reason for its dispute to the proposed change before the changes are to come into effect in accordance with clause 20.2 (Dispute Notice);
2. the Customer and the Company must use their best endeavours to agree on some or all of the proposed changes as soon as possible following the provision of the Dispute Notice; and
3. if the Customer and the Company are unable to resolve any disagreement between them regarding the proposed changes within 14 days of the Customer delivering a Dispute Notice to the Company, then the:
   1. parties must invoke the dispute resolution process set out in clause 19; and
   2. Customer must observe the proposed changes and comply with its other obligations under these terms until the dispute is resolved.

20.4 The Customer agrees that the proposed changes will not release the Customer from performing its obligations under the Contract, including its payment obligations.

20.5 The Contract will be subject to those varied terms on the date specified within the written notice if no objection is raised by the affected Customer in accordance with clause 20.3.

21.1 A notice to be given by a party to another party under these terms and conditions must be in writing and sent to the address previously nominated by that party. All notices between the Company and the Customer are deemed to have been duly delivered if mailed in the ordinary course of post or sent by facsimile or email to the postal address or facsimile number or email address of the Company or the Customer respectively previously nominated by that party. Notices are deemed to have been delivered five days after mailing, or upon completion of a facsimile transmission or email.

22.1 The Customer must use the Services in compliance with, and only as permitted by, their internal company rules and any applicable law. If the Customer's use of the Services requires them to comply with industry-specific regulations applicable to such use, the Customer will be solely responsible for such compliance. The Customer must not use the Services in a way that would subject the Company to any industry-specific regulations. For the avoidance of doubt, the Customer will not include government issued identification numbers, personal financial, health, or medical information. The Customer acknowledges and agrees that the Company is not responsible for any liabilities arising from the Customer's violation of this restriction.

22.2 The Customer is responsible for their conduct and the conduct of their Users. The Customer must ensure that they and their Users do not:

1. misuse the Services by interfering with their normal operation, or attempting to access them using a method other than through the interfaces and instructions we provide;
2. circumvent or attempt to circumvent any limitations that the Company imposes on their account;
3. probe, scan, or test the vulnerability of any Company system or network, unless with prior written authorisation of the Company;
4. decipher, decompile, disassemble, translate, create derivative works, reverse engineer or otherwise attempt to reconstruct, identify or discover any source code, algorithms, underlying ideas or underlying user interface techniques in the Services or any of the software used to provide the Services, or attempt to do so;
5. directly or indirectly identify a User contrary to the terms of any Confidentiality Notice or other privacy setting, or attempt to do so;
6. transmit any viruses, malware, or other types of malicious software, or links to such software, through the Services;
7. engage in abusive or excessive use of the Services, which is usage significantly in excess of average usage patterns that adversely affect the speed, responsiveness, stability, availability, or functionality of the Services for other customers and their users. The Company will use reasonable efforts to notify the Customer of any abusive or excessive usage to provide the Customer with an opportunity to reduce such usage to a level acceptable to the Company;
8. use the Services to infringe the Intellectual Property of others, or to commit any unlawful activity;
9. attempt to circumvent any license, timing or use restrictions that are built into the Services;
10. unless authorised in writing by the Company, lend, resell, lease or sublicense or otherwise use the Services for the benefit of a third party; or
11. use the Company Services to inappropriately contact their Users including in breach of any applicable workplace or privacy laws.

22.3 If a User breaches any subsection of clause 22.2 or otherwise uses the Services in a manner that the Company reasonably believes will cause the Company liability or disrupt others' use of the Services, then the Company may request that the Customer suspend or close the applicable User account until the breach has been cured or the use in such manner has stopped. If the Customer fails to comply with such request, then the Company may suspend or close the applicable User account.

23.1 The Company may amend this Contract from time to time and the most current version will be posted on the Company's website. If an amendment is material, as determined in the Company's reasonable discretion, we will notify the Customer contact by email or when they next log in to their account. Except in the case of an amendment being made to satisfy legal requirements, we will provide you with advance notice of material amendments.

23.2 If an amendment has a material adverse impact on the data privacy or security of the Customer's Customer Data and the Customer does not agree to the amendment, the Customer may terminate the Contract by notifying the Company within 30 days of receiving notice of the amendment or date of publication of the updated version (otherwise, the Customer will have been deemed to have consented to the amendment).

23.3 The terms and conditions of the updated version of this Contract shall apply to all existing Purchase Orders and new Purchase Orders following the date of publication of the updated version.

23.4 Any amendment to this Contract that is not made to the current version displayed on the Company's website must be in writing, signed by the Customer and Company, and must expressly state that it is amending this Contract.

24.1 These terms and conditions and the Contract are governed by the law of the state of Victoria, Australia. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Victoria, Australia and the federal courts of Australia.

24.2 No failure to exercise nor delay in exercising any right, power or remedy by either the Company or the Customer operates as a waiver. A party can only waive its rights under the Contract by providing written notice to the other party of that waiver.

24.3 Subject to clause 20, the Contract may not be amended, modified or varied except in writing signed by both parties.

24.4 If a term of the Contract (including these terms and conditions) is held to be void, voidable, invalid or unenforceable in whole or in part, it must be read down to be enforceable or, if it cannot be read down, it may be severed without affecting the validity and enforceability of the remaining terms.

24.5 The Company reserves the right to sub-contract the performance of any Contract (fully or in part) to any other party, individual or entity it may determine.

24.6 Neither the Customer or the Company may assign or transfer or purport to assign or transfer any of its rights or obligations under or in connection with the Contract to any other person or corporation without the other party's prior written consent.

24.7 Unless otherwise stated:

1. nothing in these terms creates a joint venture, partnership, or the relationship of principal and agent, or employee and employer between the parties;
2. the legal relationship between the Company and the Customer is that of principal and independent contractor; and
3. no party has the authority to bind any other party by any representation, declaration or admission, or to make any contract or commitment on behalf of any other party or to pledge any other party's credit.

24.8 The Customer agrees to:

1. execute and deliver any instruments; and
2. do such other things,

as the Company may at any time reasonably request in connection with the enforcement of its rights under these terms and the Contract.

24.9 Unless otherwise required by law, any document or instrument which are to be signed by the Customer and Company in connection with these terms and the Contract may be:

1. executed electronically in accordance with the Electronic Transactions (Victoria) Act 2000 (Vic); and
2. executed in any number of counterparts and all of those counterparts taken together constitute one and the same instrument. Delivery of an executed counterpart of a signature page of such instruments by facsimile, PDF File (portable document file), DocuSign or other form of electronic execution will be effective as delivery of a manually executed counterpart of that document or instrument.

24.10 The Company and the Customer must both:

1. comply with the Australian Privacy Principles established by the Privacy Act 1988 (Cth) with respect to any personal information supplied by the other party in connection with the Contract; and
2. ensure there is no modern slavery (as defined in the Modern Slavery Act 2018 (Cth)) in its operations and supply chain, or that of its subcontractors and suppliers.