END USER LICENCE AGREEMENT
LEGAL TERMS AND CONDITIONS
The Provider and the Customer agree as follows.
- Agreement
1.1 This agreement, together with your Subscription Order, governs the terms and conditions under which Franchise Lab Pty Ltd ACN 651 807 180 or our authorised agent or reseller (“Provider”, “us”, “we”, “our”) provides the Platform to the Client named in the Subscription Order (“Customer”, “you”, “your”)
1.2 We own, operate and license the Platform, and use it to provide Services. - Definitions and Interpretations
2.1 In this Agreement the following expressions have the following meanings, unless otherwise stated:
“Agreement” has the meaning given to it in the Recitals on page one of this document;
“Authorised User” means those of your employees, agents and contractors who are authorised by you to use the Platform and Services;
“Availability Hours” means the total number of hours in a calendar month when the Services will be made available. This is based upon the total number of hours across all Business Days in the month, excluding any scheduled maintenance windows.
“Business Day” means a day other than a weekend or public (including gazetted) holiday in New South Wales, Australia;
“Candidate” means a prospective Franchisee, that is interacting with the Platform and Service to have their suitability determined by you;
“Charges” means the charges set out in the relevant Subscription Order or as published by us from time to time;
“Commencement Date” means the commencement date specified in the Subscription Order;
“Confidential Information” means information of or provided by a party that is by its nature confidential information, is designated by that party as confidential, or that the other party knows or ought to know is confidential, but does not include information which is or becomes, without a breach of confidentiality, public knowledge;
“Consultants” means any employees, contractors, agents or consultants that we use to provide the Platform and/or perform the Services;
“Customer Data” has the meaning given to it in clause 9.1;
“Developed IP” has the meaning given to it in clause 8.3;
“EULA” means this End User License Agreement;
“Franchise” means franchise business operated by a Franchisor;
“Franchisee” means a person currently operating as a franchisee of the Franchisor that is interacting with the Platform and Service;
“Franchisor” means you the Client, as defined in the relevant Subscription Order;
“Intellectual Property Rights” means all present and future intellectual and industrial property rights throughout the world of whatever nature (whether or not registered or registrable) including but not limited to all rights in respect of technical information, know-how, copyright, trademarks, designs, patents, domain names, business names, logos, drawings, trade secrets, the right to have confidential information kept confidential or other proprietary rights, or any rights to registration of such rights;
“Pause Fee” will mean the Fee required for the Pause Period as determined by us from time to time;
“Pause Period” has the meaning given to it in clause 6.5;
“Personal Information” means the personal information of a person or entity as described under the Privacy Laws that is not depersonalised by the Provider;
“Platform” means the Platform we provide under this Agreement and which includes any associated software, technology, code and all Intellectual Property Rights contained therein;
“Privacy Laws” means the Privacy Act 1988 (Cth), Privacy and Data Protection Act 2014 (Vic) and the General Data Protection Regulation (EU 2016/679) (as applicable);
“Privacy Policy” means our privacy policy available at www.franchiselab.com/privacy;
“Provider IP” has the meaning in clause.
“Subscription Order” means the attached Subscription Order document that provides the terms pursuant to which we provide the Platform and Services to you under this Agreement;
“Related Bodies Corporate” has the meaning given in the Corporations Act 2001 (Cth);
“Services” means the services that we provide to you under this Agreement, including any associated deliverables, as set out in the Subscription Order;
“Term” means the term of this Agreement as defined according to the relevant Subscription Order;
“Tax Invoice” means a document that meets the requirements for a valid tax invoice under the Australian Goods and Services Tax (GST) Act 1999.
“Terms of Use” means our terms of use available at https://franchiselab.com/terms-of-use that regulates use of the Platform; and
“Updates” has the meaning given to it in clause 3.3.
2.2 Any reference in this Agreement to the singular includes the plural, to any gender includes all genders, to any act or statute includes any Act or statute which supersedes, replaces or modifies any earlier Act or statute, to persons includes all bodies and associations both corporate and incorporated and vice versa. Paragraph headings are for reference purposes only and all references to clauses are to clauses in this Agreement unless otherwise specified. - License
3.1 In consideration for the Charges, we grant you a limited, revocable, royalty-free, non-exclusive and non-transferable license (without the right to sublicense) to use the Platform, in executable code form in Australia for the Term and on the terms of this Agreement. You are not permitted to transfer, lease, assign, sell or transfer your rights and/or obligations under this Agreement, unless you have our prior written consent.
3.2 You agree not to, and you will not permit your Authorised Users or any Candidate or Franchisee you refer to the Platform to:
(a) modify the Platform or merge any aspect of the Platform with another program other than as expressly provided under this Agreement;
(b) encumber, transfer, license, sell, rent, lease, assign, distribute, transmit, host, outsource, disclose or otherwise commercially exploit the Platform or make the Platform available to any third party (including, but not limited to, providing Platform login details or passwords, or otherwise provide access to or features of the Platform, to an unauthorised third party) or any party outside of Australia;
(c) copy or use the Platform for any purpose other than as permitted in this EULA;
(d) engage in unlawful behaviour, including unauthorised access to or use of data, services, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures;
(e) engage in any conduct on the Platform that is in breach of this Agreement (or any agreements mentioned therein).
(f) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Platform; or
(g) modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Platform (except to the extent applicable laws specifically prohibit such restriction for interoperability purposes, in which case you agree to first contact us and provide us with an opportunity to create such changes as are needed for interoperability purposes). You may not release the results of any performance or functional evaluation of any of the Platform to any third party without our prior written approval for each such release, unless otherwise agreed by us, in our sole discretion.
3.3 We may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Platform and related services (“Updates“). These may be automatically installed without providing any additional notice or receiving any additional consent. By continuing to use the Platform after an Update, you will be taken to have consented to the Updates. If you do not want such Updates, then your remedy is to stop using the Platform, and terminate your engagement with us in the manner provided in clause 7.
3.4 Any breach of this clause 3 constitutes a breach of this Agreement and we may, at our absolute discretion, terminate or suspend your access to, and/or use of, the Platform or the Services, and/or take further actions against you for breach of this Agreement. - Services
4.1 We will perform the Services in return for payment of the applicable Charges. Subject to clauses 5.5 and 7, upon payment of the Charges, you will be entitled to the Platform and Services until the end of any applicable Term.
4.2 The terms relating to the provision of the Services are set out in the relevant Subscription Order. We may, from time to time, update or adjust the scope of services or terms of the Subscription Order for any future engagement or renewal of the Services. If we do this, we shall provide you with 30 days prior written notice of our intention to amend the terms of a Subscription Order. For the avoidance of doubt, to the degree practicable, we shall not limit or remove any services, or alter any Subscription Order for any period that you have already paid Charges for, unless doing so is otherwise permitted by this Agreement. - Your Obligations
5.1 You acknowledge that our ability to be able to provide the Platform and the Services to you without delay or interruption is dependent on your full and timely cooperation. You will (and will ensure that the Authorised Users will):
(a) co-operate with and assist us in the supply of the Platform and the Services;
(b) promptly provide us with full and accurate information, data and explanations with respect to the Platform and Services as and when requested;
(c) comply with all applicable laws, regulations and industry standards with respect to your activities and obligations under this Agreement;
(d) ensure that your network and systems comply with the relevant specifications and guidelines provided by us from time to time; and
(e) comply with all reasonable directions and guidelines from us as advised in writing from time to time.
5.2 You must procure all necessary rights from third parties, which are from time to time required in order for us to be able to provide the Platform or the Services to you. For the avoidance of doubt, you must obtain the consent to use a Candidate or Franchisee’s personal information before providing it to us for use in the Platform.
5.3 It is your responsibility to ensure that any applicable Subscription Order, invoices or any other written communications we send to you set out the correct information in relation to your business and that you notify us of any changes to this information during the Term.
5.4 You must take your own precautions to ensure that your access to and use of the Platform does not expose your telecommunications equipment and computer systems to any viruses, malicious computer code or other forms of interference which may damage your computer system. We will not be liable for any breaches of the Platform resulting from your failure to maintain reasonable security measures, such as using strong passwords, up-to-date security software, or complying with the terms of this Agreement.
5.5 In the event that you materially breach the Agreement and fail to remedy such breach within 14 days of receipt of written notice from us, we may terminate your account, disable your account or restrict your access to the Platform and Services (temporarily or permanently).
Under these circumstances, you may be prevented from accessing all or parts of the Platform or Services, your account details or any other content associated with your account. We will not be liable to you or any third party if this occurs.
5.6 While we may assist you with the process of assessing a Candidate or Franchisee that has been referred to the Platform, you are responsible for verifying the identity and authenticity of that Candidate or Franchisee when you refer them to the Platform, and during the provision of our Services. You acknowledge that, to the extent permitted by law, we do not warrant the reliability, legitimacy, repute, or credibility of any Candidate or Franchisee, or the data a Candidate or Franchisee provides, nor the capacity, ability or willingness of the Candidate or Franchisee to deliver or transact with you. Each Candidate or Franchisee will be treated as a new user of the Platform even if they have been referred to the Platform by multiple Franchisors. For the avoidance of doubt, you will not be able to identify if a Candidate or Franchisee has previously used the Platform with another Franchisor and will only have exposure to the Candidate or Franchisee’s responses directed to you via the Platform. - Charges and Payment
6.1 You will pay us the Charges to access and use the Platform and the Services in accordance with this Agreement.
6.2 If payment of the Charges is not received by any due date either described in the relevant Subscription Order or on a Tax Invoice provided to you, we will be entitled (without prejudice to any other right or remedy available to us under this Agreement or at law) to:
(a) withhold provision of the Services, or suspend your access to any or all of the Platform of the Services, until payment of the outstanding invoice (including interest) is received by us in full;
(b) charge interest on the outstanding amount at the rate of three per cent (3%) per annum above the base-lending rate of the Reserve Bank of Australia; and
(c) terminate this Agreement pursuant to clause 7. - Term and Termination
7.1 This EULA and the license granted hereunder are effective on the Commencement Date for the Term, at which point it will automatically renew for a further period of time equal to the duration of the Term (“Renewal Term”) and will continue to renew at the conclusion of every equivalent period thereafter, unless this EULA is terminated in accordance with its terms. We will provide you with advanced written notice of the EULA renewing 60 days before the commencement of a Renewal Term.
7.2 For the avoidance of doubt, we will issue you with an upfront invoice at least 30 days before the subsequent period commences, unless this Agreement is terminated in accordance with this clause 7.
7.3 You may terminate this Agreement without cause at any time by providing us with written notice at least 30 days prior to the end of the Term. Following receipt of a valid termination notice, you will still be entitled to access and use the Platform and Services until the conclusion of the Term.
7.4 We may suspend or terminate this Agreement (or at our discretion, the supply to you of the Platform or the Services) immediately if you fail to pay any invoice and such sum remains unpaid for fourteen (14) days following formal written demand for payment of the outstanding invoice.
7.5 Either party may terminate this Agreement immediately by giving written notice to the other party if:
(a) the other party is in breach of this Agreement to a material extent and fails to remedy the breach within fourteen (14) days of being notified of the breach (if it is capable of being remedied); or
(b) the other party is bankrupt, in a voluntary arrangement, in liquidation or receivership or has ceased business or threatened to cease business or is otherwise insolvent.
7.6 To the maximum extent permitted by law, we will not provide you with a refund for the Services provided to you on, or via, our Platform where:
(a) the Services are not provided for because of inability or damage caused through your misuse, accident or abnormal use of the Platform or Services;
(b) we have terminated this Agreement in accordance with clause 7.4 or clause 7.5; or
(c) the Australian Consumer Law or warranty does not apply.
7.7 On the termination or expiry of this Agreement:
(a) Subject to clause 7.7(c) and any applicable Privacy Laws, and following a written request from you, we will return all of your Confidential Information and any other property belonging to you in our possession, control or custody;
(b) following a written request from us, you will return all of our Confidential Information, Provider IP, Developed IP and any other property belong to us in your possession, control or custody; and
(c) we will retain any Candidate IP, Customer Data and corresponding Developed IP relevant to a Candidate in accordance with any legally permissible bases, but as a general position for a period of three (3) months. After this period, we will endeavour to anonymise and de-identify any personal information for our internal uses only. As a Franchisor, you may request access to the Candidate IP and corresponding Development IP within the three (3) months following termination or expiry of the Agreement, though the provision of this access may be subject to a fee to be agreed by us in writing. After the three (3) month period we will not be able to provide you with access to any Candidate IP or any corresponding Developed IP. - Intellectual Property
8.1 YOU ACKNOWLEDGE AND AGREE THAT ALL INTELLECTUAL PROPERTY RIGHTS AND ANY TITLE OR INTEREST IN THE PLATFORM OR SERVICES (“Provider IP”) IS OWNED AND WILL REMAIN OWNED BY US OR THE THIRD PARTIES WHOSE IP WE LICENSE AND THAT YOUR USE OF THE PLATFORM OR SERVICES DOES NOT TRANSFER ANY OWNERSHIP RIGHTS, TITLE OR INTEREST IN AND TO THE PROVIDER IP TO YOU.
8.2 Subject to clauses 8.3 and 8.4, we grant you a personal, non-exclusive, non-transferable and revocable license to permit the Authorised Users to access and use the Platform and the Services (including the Intellectual Property Rights contained therein) throughout Australia during the Term.
8.3 All rights, title or interest in and to any proprietary data provided by a Candidate or Franchisee via the Platform or Services will be owned by that Candidate or Franchisee or their licensors (“Candidate and Franchisee IP”). Your use or access of the Candidate and Franchisee IP via the Platform or the Services does not transfer any ownership or rights, title or interest in and to the Candidate and Franchisee IP. For the avoidance of doubt, any Intellectual Property Rights arising out of the treatment of de-identified or aggregated data collected from use of the Candidate and Franchisee IP automatically vest with us or our licensors in accordance with any applicable Privacy Laws.
8.4 All Intellectual Property Rights discovered, developed or otherwise coming into existence as a result of, for the purposes of, or in connection with, the Platform or the provision of any Services will automatically vest in, and are assigned to, us, including any enhancements, improvements and modifications to the Provider IP as well as any consequential information collected from our use of the Candidate IP (collectively, the “Developed IP”).
8.5 You must not represent to anyone or in any manner whatsoever that you are the proprietor of the Platform, the Provider IP, the Candidate or Franchisee IP and/or the Developed IP. - Use of Your Intellectual Property
9.1 You retain ownership rights to data and content that you provide to us, whether by uploading to the Platform or otherwise (“Customer Data”). For the avoidance of doubt, this includes any information relating to a Candidate or Franchisee that you have provided to us to provide the Platform and Services to Candidates or Franchisees on your behalf. We will assist you in correction and/or revision of the information provided to us upon a request by you to us, in writing.
9.2 You grant us a worldwide, revocable, non-exclusive, non-transferable and royalty free license to access and use the Customer Data for the purpose of performing our obligations under this Agreement. To the extent that any Customer Data includes Personal Information of a Candidate, Franchisee or third-party we will retain such information in accordance with clause 7.7(b) only.
9.3 You acknowledge and agree that:
(a) if you elect to upload any information or Customer Data to the Platform you:
– (i) represent and warrant that you either own the Intellectual Property Rights in that information or CustomerData or have the necessary permission to upload, post, transmit or otherwise make available that information or Customer Data via the Platform; and
– (ii) are solely responsible for that information or Customer Data and that we will not be liable for any loss, expenses, liabilities, costs or damages that are caused by information you provide on the Platform; and
(b) you have procured all necessary rights from third parties, which are from time to time required in order for us to be able to provide the Platform or the Services to you. - Candidate and Franchisee Information
10.1 In providing the Services and utilising the Platform, we may be required to collect the Personal Information and Confidential Information of Candidates or Franchisees, either directly or from third-parties in certain specific circumstances, on your behalf (“Candidate and Franchisee Information“). Candidate and Franchisee Information is collected to provide and develop the Services and Platform only and we will treat Candidate and Franchisee Information in accordance with the Privacy Laws.
10.2 We will not:
(a) disclose any Candidate and Franchisee Information to any third-parties except to specific service providers engaged by use to help provide and develop the Services and Platform or law enforcement agencies, or another party that has a legitimate legal right to access the information;
(b) take any responsibility for the use of Candidate and Franchisee Information based on any inaccurate or misleading instructions provided to us by you. You indemnify us for any loss or damage caused as a direct result of a misuse of the Candidate and Franchisee Information resulting from your materially inaccurate or misleading instructions.
10.3 Terms defined in this clause have the meaning given to them under the Privacy Policy, available at https://franchiselab.com/privacy-policy. Further details relating to the treatment, use and storage of Candidate Information can be found in our Privacy Policy. - Linking to the Platform
11.1 You may link to the Platform, provided that you do so in a way that is fair and legal and does not damage, or take advantage of, our reputation. You must not establish a link in a way that suggests any form of association, approval or endorsement by us where none exists.
11.2 You must not establish a link to the Platform from any website that is not owned by you (except with the website owner’s express permission).
11.3 The Platform must not be framed on any other website.
11.4 We reserve the right to withdraw linking permission under this clause 11 by updating these Terms on the Platform. - Authority of authorised reseller to act as agent
12.1 We have authorised Franchise Relationships Australia Pty Ltd to act as a reseller of the Platform and Services (“Reseller“) outside the terms of the Agreement.
12.2 We may, in our sole discretion, delegate any rights and obligations under this Agreement to the Reseller in order to fulfil our obligations under this Agreement. Notwithstanding such delegation, we shall remain liable for the actions of the Reseller in relation to the fulfilment of our obligations under this Agreement. - Our Obligatons
13.1 We will use reasonable endeavours to provide constant, uninterrupted access to the Platform and the Services for over 95% of the Availability Hours, but with any Platform based product, this cannot be guaranteed. We will not be responsible or liable for any direct or indirect losses or damages suffered or sustained by you as a result of, or in connection with, any interruption or delay in accessing and using the Platform or the Services.
13.2 We will use best industry practice to store Customer Data securely and prevent any unauthorised access to the Customer Data by third-parties. The Customer agrees and acknowledges that the nature of internet is such that We cannot guarantee or warrant the security of any information that is transmitted via the internet.
13.3 Upon receipt of knowledge about any breach of Customer Data by us, we shall notify you of such breach and co-operate with you in the investigation and curing of such breach.
13.4 We will perform maintenance and upgrades on the platform on a regular basis. Maintenance and upgrades will be performed outside of Business Hours except where the security, stability or integrity of the platform warrants these be performed during Business Hours. We will apply best efforts to notify users in advance of a planned Business Hours disruption.
13.5 We will also provide an online support service or email address on the Platform for you to contact between 9am – 5pm AEST/AEDT excluding public holidays in New South Wales to address any problems and errors in the Platform or any Services.
13.6 We will investigate all problems or errors in any Services, provided that you notify us in writing within seven (7) days following delivery of those Services and you give us all necessary information to conduct an investigation into the matter.
13.7 We will use our best reasonable efforts to ensure that the Platform will not knowingly contain any viruses, malware, or other harmful code designed to disrupt, damage, or gain unauthorised access to any systems, data, or information. We agree to implement and maintain reasonable security measures, in accordance with industry standards, to protect against the introduction of malicious code. In the event any malicious code is detected, we will notify you and take reasonable steps to remove such code and restore the integrity of the Platform. This clause does not cover any malicious code introduced by You or third parties not under our control.
13.8 To the maximum extent permitted by law, no further warranty, condition, undertaking or term, express or implied, statutory orotherwise as to the condition, quality, performance or fitness for purpose of the Platform provided hereunder is given or assumed by us other than as required at law. You acknowledge and agree that the Platform and the Services are provided on ‘as is’ basis and that you will make your own investigations into whether or not the Platform and the Services are fit for your purposes.
13.9 We make no representations, warranties or guarantees:
(a) that content available on, or produced by or via, the Platform is accurate, complete, reliable, current, error-free or suitable for any particular purpose. This content is provided on an ‘as is’ basis and you acknowledge and agree that you exercise absolute discretion in choosing how to use this content; or
(b) as to the availability of the Platform or that the Platform and/or the Services are or will be free from viruses, worm, trojan or other malicious code, although we will endeavour to provide reasonable care to this effect. - Liability and Exclusions
14.1 Both parties total liability (whether based on warranty, contract, tort, statute, misrepresentation or otherwise) arising out of, or in connection with, this Agreement, for any one event or a series of related events, will be limited to three (3) times the total Charges paid (excluding GST and expenses) by you to access and use the Platform and the Services (as applicable) during the Term upon which the event(s) occur.
14.2 We will have no liability for any losses suffered or any damage caused by errors or omissions in any information or instructions provided to us by you in connection with the Platform, the Services or any actions taken by us at your direction.
14.3 Neither party shall be liable to the other party for lost profit, lost revenue, incidental, indirect, consequential, special, or punitive damages, except for either party’s (i) indemnification obligations, (ii) confidentiality obligations, (iii) breach of applicable laws, (iv) fraud, gross negligence and/or willful misconduct.
14.4 The parties acknowledge that the limitations of liability contained in this clause 14 are a fair and reasonable allocation of the commercial risk between the parties. - Indemnity
15.1 You agree to indemnify and hold us, our Related Bodies Corporate and our officers, directors, employees and contractors (collectively, the “Indemnified Provider”) harmless from and against any and all claims, actions, demands, proceedings,liabilities, losses, damages, reasonable expenses and costs that may be brought against the Indemnified Provider in connection with this Agreement or which the Indemnified Provider must pay, sustain or incur as a direct or indirect result of or arising out of:
(a) breach by you or any Authorised User of any of your obligations under the Agreement;
(b) loss of, or damage to, any property belonging to you or any Authorised User;;
(c) your breach of any third party’s Intellectual Property Rights; or
(d) breach by you or any Authorised User of any law (including Privacy Laws).
15.2 We agree to indemnify and hold you, your Related Bodies Corporate and your officers, directors, employees and contractors (collectively, the “Indemnified Customer”) harmless from and against any and all claims, actions, demands proceedings, liabilities, losses, damages, expenses and costs that may be brought against the Indemnified Customer or which the Indemnified Customer must pay, sustain or incur as a direct or indirect result of or arising out of:
(a) breach by us of any of our obligations under the Agreement;
(b) loss of, or damage to, any property belonging to us;
(c) our breach of any third party’s Intellectual Property Rights; or
(d) our breach of any law (including Privacy Laws). - Confidentiality
16.1 Each party agrees not to use or disclose confidential information received or disclosed to it by the other party, a Candidate or a Franchisee in the negotiation or operation of this Agreement, save for such use or disclosure necessary and required to perform their respective obligations under this Agreement. Disclosure will be, in any event, only made to the receiving party’s employees, officers, agents or contractors to whom it is necessary to do so and who are directly involved in performing the receiving party’s obligations.
16.2 In making disclosure to persons as permitted under this clause 16, the receiving party will ensure that persons receiving any candidate, Franchisee or disclosing party’s confidential information will comply with the same obligations regarding confidentiality as that of the receiving party.
16.3 Information is not to be regarded as confidential, and the receiving party will have no obligation regarding confidentiality, where that information is already in the public domain or enters the public domain through no fault of the receiving party, is received from a third party without any obligations of confidentiality, is used or disclosed with the prior written consent of the disclosing party, is disclosed in compliance with a legal requirement or is independently developed by the receiving party.
16.4 Any confidential information held by a receiving party will be returned to the disclosing party or destroyed at the written request of the disclosing party. - Privacy
17.2 We will provide you with assistance in responding to privacy-related or other access requests from Candidates, subject to our Privacy Policy, the Terms of Use and this Agreement.
17.3 We will not use Customer Data for any purpose other than for the performance of the Services and as provided for under this Agreement.
17.1 Both parties must, in connection with this Agreement:
(a) ensure that their employees, contractors and agents are aware of and comply with obligations under all applicable Privacy Laws;
(b) at all times comply with obligations under applicable Privacy Laws
(c) take reasonable steps to assist the party to comply with obligations under applicable Privacy Laws as may be notified from time to time. - Non-Solicitation
18.1 Neither party will attempt to employ, either directly or indirectly or as consultants, any of the other party’s employees or Consultants during the term of this Agreement without that party’s prior written consent. Upon breach of this clause, the aggrieved party will be entitled to terminate this Agreement in accordance with clause 7. - Situations or events outside our reasonable control
19.1 There are certain situations or events that may occur which will not be within our reasonable control. Where this occurs, we will notify you of these circumstances and attempt to recommence providing the Platform and/or the Services (as applicable) as soon as we are able. In such circumstances, there may be a delay before we can start or continue performing the Platform and/or the Services. - Notices
20.1 Any notice required to be given pursuant to this Agreement will, unless otherwise stated, be in writing and be sent to the other party at the email address specified in this Agreement (or to such other address as either party may from time to time notify the other in accordance with this clause).
20.2 A notice given under clause 20.1 will be deemed to have been delivered 24 hours after the email is sent. - Dispute Resolution
The parties must, before resorting to court proceedings (except for interlocutory or interim relief), initially refer any dispute under or relating to this Agreement to a nominated representative of each party to endeavour to resolve the dispute within 20 days. If the dispute is not resolved within 20 days, then either party may, in its absolute discretion, refer the dispute to mediation, held by an independent mediator mutually agreed by the parties or otherwise appointed by a suitably qualified dispute resolution professional appointed by a representative of the Resolution Institute. If a party has submitted the dispute to mediation and a resolution has not been obtained within 20 days, then either party may, in its absolute discretion, initiate court proceedings.
21.1 Notwithstanding the existence of a dispute, each party must continue to perform its obligations under this Agreement.
21.2 This clause 21 survives the termination or expiry of this Agreement. - General
22.1 Variations to this Agreement will only be effective if in writing and signed by authorised representatives of both parties.
22.2 Neither party may, without prior written consent by the other party (which will not be unreasonably withheld) or unless permitted under this Agreement, assign, transfer, charge, sub-contract or deal in any other manner with all or any of the rights or obligations under this Agreement.
22.3 If either party chooses to waive or ignore a breach of the Agreement, this will not prevent that party from taking action in respect of the same type of breach at a future date.
22.4 Nothing in this Agreement is intended to create or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in this Agreement. Neither we nor you will have, nor represent that it has, any authority to make any commitments of this kind on the other party’s behalf.
22.5 This Agreement, and the relationship between the parties contemplated by it, is not intended to be exclusive.
22.6 If any provision of this Agreement is held invalid or unenforceable, such provision will be deemed deleted from this Agreement and replaced by a valid and enforceable provision which so far as possible achieves the parties’ intent in agreeing to the original provision. The remaining provisions of this Agreement will continue in full force and effect.
22.7 This Agreement is governed by the laws of New South Wales, Australia and the parties submit to the non-exclusive jurisdiction of the courts exercising jurisdiction there.
22.8 This Agreement may be executed electronically and in any number of counterparts. All counterparts together will be taken to constitute one instrument.
22.9 This Agreement constitutes the entire agreement between the parties in respect of the subject matter of this Agreement and supersedes and replaces any prior written or oral agreements, representations or understandings. The parties confirm that they have not relied on any representation that is not expressly incorporated into this Agreement. To the extent of any inconsistency between this Agreement and the general Terms of Use, the terms of this Agreement are to prevail.
Last updated: 1st October 2024
