Terms and Conditions

This End-User Licence Agreement is a legal agreement between you (you or the Licensee) and Navexa Services Pty Ltd (ACN 639 386 539) (we/us or the Licensor). Please read this agreement carefully because it governs your use of the Software and Support and Maintenance for the Software. If you are agreeing to this agreement not as an individual but on behalf of a company, government or other entity for which you are acting, then you means the entity and you are binding the entity to this agreement. We may modify this agreement from time to time, subject to clause 16.

As part of this agreement, your use of the Software is also subject to our Privacy Policy (found at https://www.navexa.io/privacy) which is incorporated by reference into this agreement, provided that, if any provision thereof conflicts with any provision of this agreement, this agreement will prevail.

By clicking “I agree” (or similar button or checkbox) or by ordering, downloading, installing, accessing or using the Software, you indicate that you are of sufficient legal age in your jurisdiction or residence to use or access the Software and to enter into this agreement and you agree to be bound by this agreement. If you do not agree to this agreement, do not use or access the Software. This agreement does not grant you any other rights other than those expressly contained herein.

Contents

Definitions and interpretation
Licence
Restrictions on use
Privacy
Duration of the Licence and renewals
Royalty-free
Revocation and termination
Consequences of termination
Support and Maintenance
Warranties
Disclaimers and limitation of liability
Indemnities
Intellectual property rights
IP Ownership Claims
Confidentiality
Assignment and sub-licensing
Changes to this agreement
Notices
General

1. Definitions and interpretation

Definitions

1.1 The following definitions apply in this agreement unless the context requires otherwise:

Authorised Users means the specific individuals whom you designate to use the Software. Authorised Users may be your or your affiliates’ employees, representatives, consultants, contractors, agents or other third parties who are acting for your or your affiliates’ benefit or on your or your affiliates’ behalf.
Business Day means a day (other than a Saturday, Sunday or public holiday) when banks in Melbourne, Victoria are open for business.
Change of Control means, in respect of a particular entity, a person who Controls that entity ceasing to do so or another person acquiring Control of it.
Claim means any claim, complaint, demand, proceeding, suit, litigation, action, cause of action or other legal recourse (whether in contract, tort, under statute or otherwise).
Commencement Date means the date on which the Software was first made available to you (by any means, whether tangible (such as CD or DVD) or intangible (such as email, internet download or online login)).
Confidential Information means all information (however recorded or preserved) disclosed or provided (whether in writing, orally or by any other means and whether directly or indirectly) by one party to the other before, on or after the date of this agreement in connection with this agreement or the Software where such information is identified as confidential at or before the time of its disclosure or ought reasonably be considered confidential based on its content or nature or the manner of its disclosure and, for the avoidance of doubt, includes the existence and terms of this agreement and all User Data.
Control has the meaning given in Section 50AA of the Corporations Act.
Corporations Act means the Corporations Act 2001 (Cth).
Disclosing Party means, in respect of any particular Confidential Information, the party that discloses that Confidential Information (whether directly or indirectly) to the other party.
Dispose means, in relation to any right, benefit or property, to sell, assign, transfer, alienate, rent, lease, distribute, sublicence alienate or create a trust or Encumbrance over or in respect of that right, benefit or property.
Documentation means all information (however recorded or preserved) relating to the Software (including all Source Code and Object Code, manuals, notes, user guides, functional and technical drawings, specifications, data, reports, designs, modification manuals, flow charts and listings that are designed to assist or supplement the development, understanding or use of the Software).
Encumbrance means any mortgage, charge (fixed or floating), pledge, lien, hypothecation, guarantee, trust, right of set-off or other third-party right or interest (legal or equitable) including any assignment by way of security, reservation of title or other security interest of any kind, howsoever created or arising, or any other agreement or arrangement (including a sale and repurchase agreement) having similar effect.
Force Majeure Event means any:
- natural disaster (such as flood, earthquake, windstorm, etc);
- outbreak or escalation of hostilities (whether or not war has been declared) or any other unlawful act against public order or authority;
- industrial dispute;
- government restraint;
- unavailability, shortage, breakage or failure of essential equipment, communication channels, facilities, machinery or electricity supply (not caused by the relevant party);
- shut-down or corruption of, or interruption to, the internet or network servers (not caused by the relevant party); or
- other event that is not within the reasonable control of the parties and which, by its nature, could not have been foreseen by the relevant party or, if it could have been foreseen, was unavoidable.
Governmental Agency means any government or governmental, semi-governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity whether foreign, federal, state, territorial or local.
Hosted Servers means servers owned and/or used by us for the purposes of hosting the Software and/or User Data.
Improvements means, in respect of the Software and/or any Documentation relating thereto, any developments, enhancements, modifications, derivatives, updates or other improvements thereof, including any customisations that are made at your request or upon your direction, even if such customisations incorporate know-how, ideas, requests or suggestions made or provided by you.
Insolvency Event means, in respect of a party:
- where the party is an individual, that party commits an act of bankruptcy or is declared bankrupt or insolvent or that party’s estate otherwise becomes liable to be dealt with under any law relating to bankruptcy or insolvency;
- where the party is a company, a resolution is passed or court order made for the winding up of that party or an administrator is appointed to that party pursuant to any relevant law;
- a receiver or manager or receiver and manager is appointed to the assets or undertaking of the party or any part thereof; or
- the party is otherwise unable to pay its debts as and when they fall due.
IP Ownership Claim has the meaning given in clause 1.
IP Rights means patents, rights to inventions, copyright and related rights, trademarks and service marks, trade names and domain names, rights in get-up, rights to goodwill or to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how, trade secrets and marketing secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Licence means the licence to use the Software and Documentation provided by us to you pursuant to clause 2.
Licensor Warranties means the representations and warranties given by us to you set out in clause 10.
Losses means any loss, damage, debt, cost, charge, expense, fine, outgoing, penalty, diminution in value, deficiency or other liability of any kind or character (including legal and other professional fees and expenses on a full indemnity basis) that a party pays, suffers or incurs or is liable for, including all:
- liabilities on account of Tax;
- interest and other amounts payable to third parties;
- legal and other professional fees and expenses (on a full indemnity basis) and other costs incurred in connection with investigating, defending or settling any Claim, whether or not resulting in any liability; and
- all amounts paid in settlement of any Claim.
Object Code means the executable version of a computer program.
Output Data means the data produced by the Software which uses, incorporates, analyses, combines, deconstructs and/or reorders any User Data, including that User Data, to the extent it forms part of the Output Data.
Plan Terms means the pricing and inclusions for the Licence as specified in the Website at the time of your initial purchase.
Recipient means, in respect of any particular Confidential Information, the party that receives that Confidential Information (whether directly or indirectly) from the other party.
Representatives means, in respect of a person, its employees, consultants, agents and advisors and, in respect of a body corporate, includes its officers.
Software means the software described as follows, including the Documentation and all updates and upgrades of that software and Documentation:
The "Navexa" software platform that provides investment portfolio tracking tools through a web-based interface.
Source Code means a computer program expressed in a source language or form that can be interpreted or compiled and then executed by a computer as commands, together with all documentation and tools reasonably required to enable a person having commercially available computer programming skills to read, understand and modify the computer program.
Support and Maintenance means the support and maintenance services to be provided by us under clause 9.
Tax means any tax, levy, impost, deduction, charge, rate, compulsory loan, withholding or duty by whatever name called, levied, imposed or assessed under any statute, ordinance or law by any Governmental Agency, including any:
- profits tax, property tax, land tax, interest tax, income tax, tax related to capital gains, tax related to the franking of dividends, bank account debits tax, fringe benefits tax, sales tax, value-added tax, goods and services tax, payroll tax, superannuation guarantee charge or withholding tax;
- stamp, transaction or registration duty or similar charge imposed by any Governmental Agency; and
- any interest, penalty, charge, fine or fee or other amount of any kind assessed, charged or imposed on or in respect of the above.
Trademarks means the trademarks and service marks of the Licensor that are used or displayed in the Software and/or the Website.
Treasury Laws Amendment means the Treasury Laws Amendment (2017 Enterprise Incentives No. 2) Act 2017 (Cth).
User Data means any data, content, code, video, images or other materials of any type that you submit, upload, transmit or otherwise make available to or through the Software.
Website means our website located at https://www.navexa.io/ and pages within that domain and any of its subdomains, including https://www.navexa.io/pricing.

Interpretation

1.2 The following rules of interpretation apply in this agreement unless the context requires otherwise:

(a) headings in this agreement are for convenience only and do not affect its interpretation or construction;

(b) no rule of construction applies to the disadvantage of a party because this agreement is prepared by (or on behalf of) that party;

(c) where any word or phrase is defined, any other part of speech or other grammatical form of that word or phrase has a cognate meaning;

(d) a reference to a document (including this agreement) is a reference to that document (including any schedules and annexures) as amended, consolidated, supplemented, novated or replaced;

(e) references to recitals, clauses, subclauses, paragraphs, annexures or schedules are references to recitals, clauses, subclauses, paragraphs, annexures and schedules of or to this agreement;

(f) in each schedule to this agreement, a reference to a paragraph is a reference to a paragraph in that schedule;

(g) a reference to any statute, proclamation, rule, code, regulation or ordinance includes any amendment, consolidation, modification, re-enactment or reprint of it or any statute, proclamation, rule, code, regulation or ordinance replacing it;

(h) an expression importing a natural person includes any individual, corporation or other body corporate, partnership, trust or association and any Governmental Agency and that person's personal representatives, successors, permitted assigns, substitutes, executors and administrators;

(i) a reference to writing includes any communication sent by post, facsimile or email;

(j) a reference to time refers to the time in Melbourne, Victoria and time is of the essence;

(k) all monetary amounts are in Australian currency;

(l) the word “month” means calendar month and the word “year” means 12 calendar months;

(m) the meaning of general words is not limited by specific examples introduced by “include”, “includes”, "including", "for example", "in particular", “such as” or similar expressions;

(n) a reference to a “party” is a reference to a party to this agreement and a reference to a “third party” is a reference to a person that is not a party to this agreement;

(o) a reference to the termination of this agreement includes a reference to the expiry or revocation of the Licence in accordance with the terms of this agreement;

(p) a reference to a liability includes a reference to a present, prospective, future or contingent liability;

(q) a reference to any thing is a reference to the whole and each part of it;

(r) a reference to a group of persons is a reference to all of them collectively and to each of them individually;

(s) words in the singular include the plural and vice versa; and

(t) a reference to one gender includes a reference to the other genders.

2. Licence

Hosted service

2.1 You acknowledge and agree that the Software will be provided to you as a hosted service, rather than as a standalone product installed on your computer equipment and that accordingly:

(a) you will have access to the Software only through a web browser interface;

(b) to the extent that functionality of the Software is divided into designated modules, you will have access only to the modules that you are entitled to use;

(c) access to the Software depends on your having valid and current access permissions that are recognised by the Hosted Servers; and

(d) all User Data will be stored on the Hosted Servers, rather than on your computer equipment.

Grant of Licence

2.2 Subject to the provisions of this agreement, with effect on and from the Commencement Date, we hereby grant to you a non-exclusive, non-transferable, non-sublicensable, licence to use the Software worldwide, but only for your own personal, non-commercial use in accordance with the terms of this agreement.

Plan Terms

2.3 This agreement sets out our standard licence terms for the Software. The particular pricing and inclusions of your Licence are set out in your Plan Terms. To the extent of any inconsistency between the terms of this standard agreement and your Plan Terms, the Plan Terms will prevail.

3. Restrictions on use

3.1 You must:

(a) ensure that only one Authorised User can access and use the Software;

(b) only disclose your account access details to your Representatives on a need-to-know basis;

(i) are made aware of the terms of this agreement; and

(ii) do not do, or omit to do, anything which, if done or omitted to be done by you, would constitute a breach of this agreement by you,

and you acknowledge and agree that you will be responsible for, and liable to us in respect of, the actions and omissions of any and all of your Representatives in relation to the Software as if they were your own actions or omissions;

(d) contact us immediately if you have any reason to believe that any of your passwords have been compromised or used without your authority;

(e) keep your account access details secure and confidential and change your passwords whenever directed to do so by us;

(f) where directed, provide us with details of any other professional parties linked to your account;

(g) keep your account details and other personal information, including your email address, updated and provide us with notice of any changes to that information so that we can contact you as needed in connection with your account; and

(h) keep your internet privacy and virus detection software up-to-date.

3.2 You must not:

(a) provide access to the Software to a third party or otherwise Dispose of your access to the Software, whether in whole or in part, to any person without our prior written consent under clause 16;

(b) use the Software:

(i) in any way other than pursuant to the Licence granted to you under clause 2;

(ii) in any way that could damage our reputation or the goodwill or IP Rights associated with the Software;

(iii) for competitive analysis or to build competitive products; or

(iv) to share inappropriate content or material (involving, for example, nudity, bestiality, pornography, offensive language, graphic violence, or criminal activity);

(c) use any software or services in conjunction with the Software that modifies or reroutes, or attempts to modify or reroute, the Software;

(d) authorise any third party to access and/or use the Software on your behalf using any automated process such as a bot or spider or periodic caching of information stored by the Software;

(e) reverse engineer, decompile, disassemble, decrypt, hack, emulate, exploit, adapt, modify, translate, frame or reformat any part of the Software or otherwise seek to obtain or derive any of the Source Code or any underlying ideas, algorithms or file formats of, or any components used in, the Software by any means whatsoever, or attempt to do any of the foregoing;

(f) modify or remove any copyright or proprietary notices pertaining to the Software;

(g) disclose your passwords to any third party;

(h) circumvent any restrictions on access to, or availability of, the Software;

(i) attempt to access or control the Software or the Hosted Servers except through the browser interfaces to which we have given you access;

(j) engage in activity that is harmful to you, the Software or others (eg, transmitting viruses, stalking, posting terrorist or violent extremist content, communicating hate speech or advocating violence against others);

(k) infringe upon the rights of others (eg, unauthorised sharing of copyrighted material); or

(l) engage in activity that violates the privacy of others.

4. Privacy

4.1 You acknowledge that your use of the Software is subject to our Privacy Policy. We reserve the right to monitor, collect and store your communications with us (whether by email, facsimile or any other form of transmission) for the purposes of our business needs, including quality control and security.

4.2 In relation to any Personal Information that is included in any User Data, all parties must comply with the Privacy Act and any guidelines issued from time to time by the Commonwealth Privacy Commissioner.

5. Duration of the Licence and renewals

The Licence and Support and Maintenance will:

(a) commence on the Commencement Date; and

(b) unless otherwise specified in the Plan Terms:

(i) continue in force for 12 months; and

(ii) thereafter, automatically renew for further successive periods of 12 months,

unless terminated or revoked earlier in accordance with clause 7.

6. Royalty-free

The Licence is granted to you on a royalty-free basis.

7. Revocation and termination

Suspension of access

7.1 We may, with or without notice, suspend your access to all or part of the Software:

(a) for the purposes of any scheduled or unscheduled maintenance periods that we decide at our discretion to implement; and/or

(b) if you breach this agreement or do, or allow to be done, anything that may have the effect of jeopardising the operation of the Software for other users.

Mutual termination rights

7.2 Each party may terminate this agreement with immediate effect by written notice to the other party if:

(a) the other party materially breaches this agreement where:

(i) such breach is irremediable; or

(ii) if remediable, the other party fails to remedy the breach within 14 days of written notice by the terminating party;

(b) an Insolvency Event occurs in respect of the other party; or

8. Consequences of termination

8.1 You acknowledge and agree that, following termination of this agreement in any circumstances, you will only have further access to your User Data, if you renew your licence and once again access your User Data by paying the Fees, before they are deleted or destroyed within 10 Business Days after the termination of this agreement.

8.2 If this agreement is terminated or expires for any reason, then, in addition, and without prejudice, to any other rights or remedies:

(a) the parties are immediately released from their obligations under this agreement, other than under clauses 4 (Privacy), 7 (Revocation and termination), 10 (Warranties), 11 (Disclaimer of warranties and limitation of liability), 12 (Indemnities), 13 (Intellectual property rights), 14 (IP Ownership Claims), 15 (Confidentiality), 19 (General) and this clause 8, which shall survive any termination of this agreement;

(b) your right to use the Software and the Trademarks immediately ceases, the licence granted to you under clause 2.2 immediately terminates and you must immediately remove all Software and Trademarks from your computer systems and records; and

Accrued rights

8.3 Termination of this agreement will not affect any rights or liabilities that the parties have accrued under it prior to such termination.

9. Support and Maintenance

During the term of your licence, we will exercise commercially reasonable efforts to:

(a) promptly correct any failure of the Software to perform according to its specifications; and

(b) keep the Software current via updates, upgrades, new releases or other enhancements as they become available from time to time.

10. Warranties

Licensor Warranties

10.1 We represent and warrant to you that:

(a) we own or have a licence to use and sub-licence all IP Rights in the Software that are necessary in order to validly grant to you the licence under clause 2.2; and

(b) we will take reasonable commercial efforts to ensure that the Software, in the form provided to you, will be free of any viruses, malware, or other harmful code.

Licensee Warranties

10.2 You represent and warrant that:

(a) you have the legal power and authority to execute, deliver and perform your obligations under this agreement and the transactions contemplated by this agreement, and no limit on your powers will be exceeded as a result of the transactions contemplated by this agreement;

(b) you have taken all necessary actions, and obtained all required consents, to enable you to execute, deliver and perform your obligations under this agreement, and any such authorisations are in full force and effect;

(d) the execution, delivery and performance of this agreement by you does not and will not violate, breach, or result in the contravention of:

(i) any law, resolution or authorisation;

(ii) any document that is binding upon you or any of your assets; or

(iii) if applicable, your constitution or other constituent documents.

11. Disclaimers and limitation of liability

Disclaimer of warranties

11.1 To the maximum extent permitted by law, we expressly disclaim all representations, warranties and guarantees (whether implied, statutory or otherwise) in relation to the Software, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement, other than the Licensor Warranties.

11.2 The Software and Support and Maintenance are provided strictly on an ‘as is’ basis and, to the maximum extent permitted by law, we make no representation, warranty or guarantee as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of the Software and in particular we do not represent, warrant or guarantee that:

(a) your use of the Software will be secure, timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data;

(b) the Software will meet your requirements or expectations;

(d) the Software and the servers that make them available will be free of viruses or other harmful components, except as expressly set forth in clause 10.1(b).

11.3 If you misuse the Software or breach the restrictions contained in clause 3, all representations, warranties and guarantees (whether implied, statutory or otherwise) in relation to the Software will be void.

Disclaimer in relation to Output Data

11.4 The Output Data is provided based on the User Data provided by you and, to the maximum extent permitted by law, we do not accept any responsibility for the accuracy of the Output Data.

11.5 You agree that Output Data is not to be relied upon for the purposes of any decision making.

11.6 We are not financial, accounting, tax or other professional advisers, and the Output Data does not consider your personal or financial circumstances, goals, strategies or particular tax profile, and the Output Data does not constitute financial, accounting or tax advice. Before making any decisions, lodgements, filings, submissions, resolutions or any other determinations based on the Output Data, you agree that you should consider obtaining your own independent accounting, financial and/or tax advice from a duly qualified professional.

Exclusion of liability

11.7 To the maximum extent permitted by law, we exclude all liability to you or any other person for any Losses arising directly or indirectly out of, or in connection with, any use of, or reliance upon, the Software by you or any other person (provided that nothing in this clause 11.7 absolves us of our obligations as expressly set out in this agreement).

Waiver and release

11.8 You hereby irrevocably release us from, waive the right to bring, and covenant not to bring, any Claim that you have, or would otherwise have had, against us arising directly or indirectly out of, or in connection with, any use of, or reliance upon, the Software by you or any other person and acknowledge and agree that this waiver and release may be pleaded as a bar and complete defence to any such Claims (provided that nothing in this clause 11.8 absolves us of our obligations as expressly set out in this agreement).

Remedies limited

11.9 To the maximum extent permitted by law, we expressly limit our liability for breach of any non-excludable condition or warranty implied by virtue of any legislation to the following remedies (the choice of which is to be at our sole discretion):

(a) the supply of the services again; and/or

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

Force Majeure Event

11.10 To the maximum extent permitted by law, and without limiting any other provision of this agreement, we exclude liability for any delay in performing any of our obligations under this agreement where such delay is caused by a Force Majeure Event, and we shall be entitled to a reasonable extension of time for the performance of such obligations.

12. Indemnities

You will indemnify and hold us harmless against all Losses that may be suffered or incurred by us arising directly or indirectly out of, or in connection with:

(a) any breach of this agreement by you;

(b) your negligent acts or omissions; and/or

(c) any Claim brought, or threatened to be brought, by a third party against us alleging that your use of the Software constitutes an infringement of any IP Rights of the third party.

13. Intellectual property rights

Licensor retains ownership

13.1 You acknowledge and agree that:

(a) this agreement does not transfer or assign any IP Rights to you;

(b) we own and retain all IP Rights in the Software and Documentation including any and all Improvements that may be created or developed by you; and

(c) you have no IP Rights in any part of the Software or Documentation, including any Improvements thereof, other than the rights temporarily granted to you pursuant to clause 2.2 and you must not take any step to invalidate or prejudice our title thereto.

Ownership of User Data

13.2 We acknowledge and agree that you own and retain all IP Rights in the User Data submitted, uploaded, transmitted, generated or otherwise made available to or through the Software. Solely to the extent necessary to provide the Software to you, you grant us a worldwide, limited-term licence to access, use, process, copy, distribute, perform, export, and display your User Data.

Trademarks

13.3 The Trademarks are unregistered trademarks owned by us and/or our licensors or affiliates. You may not use any of the Trademarks without our prior written consent. You must comply with our reasonable usage guidelines and directions with respect to the Trademarks as notified to you from time to time.

Feedback

13.4 We welcome your comments, feedback, suggestions, information and other communications regarding the Software and Support and Maintenance – however, please note that:

(a) any such feedback will be and remain our exclusive property and you will relinquish any right, title or interest in such feedback immediately upon it being sent to us;

(b) we will be entitled to use, exploit, improve, make, copy, disclose, display or perform publicly, distribute, improve and modify any such feedback for any purpose whatsoever without restriction; and

14. IP Ownership Claims

14.1 You must promptly notify us of any actual or suspected infringement of, or attack or challenge to the ownership or registration of, any of our IP Rights in the Software that comes to your attention (each an IP Ownership Claim).

14.2 We will have absolute discretion to decide what action to take in respect of any IP Ownership Claim and sole conduct of any related legal proceedings (including any legal proceedings conducted in our name or in the joint names of you and us). Accordingly, you must:

(a) not bring any legal proceedings in respect of any IP Ownership Claim without our prior written consent; and

(b) cooperate fully with us, and take all steps requested by us in our discretion, in defending any IP Ownership Claim, provided that we will be responsible for the cost of any related legal proceedings and entitled to any damages, account of profits and/or awards of costs recovered in respect thereof,

and you must ensure that any and all of your assignees or sub-licensees do the same.

15. Confidentiality

Confidentiality obligations

15.1 Subject to clauses 15.2, 15.3 and 15.5, the Recipient must:

(a) keep the Confidential Information of the Disclosing Party confidential and not disclose or make available that Confidential Information in whole or in part to any third party;

(b) not use or exploit that Confidential Information in any way except for the purposes of complying with its obligations and exercising its rights under this agreement; and

(c) implement and maintain effective security measures to prevent unauthorised use and disclosure of that Confidential Information whilst it is in the Recipient's possession or control.

Disclosure to authorised Representatives

15.2 The Recipient may disclose the Confidential Information of the Disclosing Party to the Recipient’s Representatives but only to the extent that they have an actual need to know the Confidential Information in order for the Recipient to properly perform its obligations and exercise its rights under this agreement and provided that the Recipient:

(a) must ensure that all such Representatives:

(i) comply with the obligations in this agreement as if each of them was a party to this agreement in the place of the Recipient; and

(ii) do not do, or omit to do, anything which, if done or omitted to be done by the Recipient, would constitute a breach of this agreement by the Recipient; and

(b) will be responsible for, and liable to the Disclosing Party in respect of, the actions and omissions of any and all of its Representatives in relation to that Confidential Information as if they were its own actions or omission.

Other exceptions

15.3 Subject to clause 15.4, the obligations in clause 15.1 do not apply to any Confidential Information which (as shown by appropriate documentation and other evidence in the Recipient’s possession):

(a) either:

(i) is or becomes generally available to the public;

(ii) was already known to the Recipient or its Representatives on a non-confidential basis prior to the time of its first disclosure (whether direct or indirect) by the Disclosing Party to the Recipient; or

(iii) is received by the Recipient (whether directly or indirectly) from a third party after that time,

unless it became so generally available, known or received (as applicable) as a direct or indirect result of an unlawful act or breach of confidentiality about which the Recipient knew or ought reasonably (after due enquiry) to have known;

(b) is required by law or court order to be disclosed, provided that the Recipient must:

(i) promptly notify the Disclosing Party in writing in advance of any such disclosure, if reasonably practicable; and

(ii) reasonably assist the Disclosing Party in obtaining confidential treatment for, or avoiding or minimising such disclosure of, the relevant Confidential Information to the extent reasonably requested by the Disclosing Party;

(c) is independently developed by the Recipient or its Representatives without any direct or indirect use of, reference to, or reliance on any Confidential Information of the Disclosing Party; or

(d) subject to clause 15.5, is authorised for release or use by the written pre-approval of the Disclosing Party but only to the extent of such written pre-approval.

15.4 The exceptions in clause 15.3 do not apply to any specific Confidential Information merely because it is included in more generally non-confidential information, nor to any specific combination of Confidential Information merely because individual elements, but not the combination, are included in non-confidential information.

Announcements

15.5 At any time during the term of this agreement, either party may publicly disclose (including via a statement on its website or in a press release or other public announcement) the fact that you have a subscription to use the Software, and that fact alone, without needing any consent of the other party. For the avoidance of doubt, any further public statement regarding this agreement or the Software may not be made without the written pre-approval of the other party under clause 15.3(d) or pursuant to another exception in clause 15.3.

Destruction of User Data

15.6 Promptly upon request by you at any time and for any reason, we will delete all or any part of your User Data that are in our possession or control. You acknowledge that any User Data so deleted will be permanently erased and will thereafter not be recoverable or capable of being reproduced.

16. Assignment and sub-licensing

16.1 You must not Dispose of your access to the Software, the Licence, the benefit of this agreement or any rights or obligations hereunder, whether in whole or in part, to any person without our prior written consent, which we may withhold or delay at our absolute discretion. We may provide any such consent subject to such conditions as we choose at our absolute discretion to impose. For the purposes of this clause 16.1, a Change of Control in respect of you will be deemed to constitute a Disposal of your rights under this agreement requiring our prior written consent in accordance with this clause 16.1.

Responsibility for actions of assignees and sub-licensees

16.2 You must ensure that any and all of your assignees and/or sub-licensees:

(a) comply with the obligations in this agreement as if each of them was a party to this agreement in the place of you; and

(b) do not do, or omit to do, anything which, if done or omitted to be done by you, would constitute a breach of this agreement by you,

and you will be responsible for, and liable to us in respect of, the actions and/or omissions of any and all of your assignees and sub-licensees in relation to the Software as if they were your actions and/or omissions.

17. Changes to this agreement

We may modify the terms and conditions of this agreement from time to time, with notice given to you by email, through the Software or through our Website. Such modifications will become effective as soon as notice is given. Your continued use of the Software following notice of such modifications shall be deemed to be your acceptance of any such modifications to this agreement. If you do not agree to any such modifications, you must immediately stop using the Software and destroy all copies of the Software in your possession or control.

18. Notices

18.1 We will send you notices via email or regular mail. We may also display notices in the Software and/or the Website.

18.2 A notice is deemed to have been received:

(a) if delivered personally, at the time of delivery;

(b) if delivered by commercial courier, at the time of signature of the courier’s receipt;

(d) if sent by airmail, five days after the date of posting;

(e) if sent by email, 4 hours after the sent time (as recorded on the sender’s email server), unless the sender receives a notice from the party’s email server or internet service provider that the message has not been delivered to the; or

(f) if displayed in the Software and/or the Website, at the time the notice is posted in the Software and/or the Website,

except that, if such deemed receipt is not within business hours (meaning 9:00 am to 5:30 pm on a Business Day), the notice will be deemed to have been received at the next commencement of business hours in the place of deemed receipt.

18.3 To prove service, it is sufficient to prove that:

(a) in the case of post – that the envelope containing the notice was properly addressed and posted;

(b) in the case of fax – the notice was transmitted to the fax number of the party;

(d) in the case of the Software and/or the Website – the notice was posted on the Software and/or the Website.

19. General

Further assurances

19.1 Each party must (at its own expense, unless otherwise provided in this agreement) promptly execute and deliver all such documents, and do all such things, as any other party may from time to time reasonably require for the purpose of giving full effect to the provisions of this agreement.

Relationship of the parties

19.2 This agreement does not create any partnership, joint venture or agency relationship between the parties. No party has the authority to bind any other party.

Agents and third-party purchasers

19.3 If you are acquiring the Software on behalf of another person or entity, you represent and warrant that you have the authority to bind the party or entity for which you are acquiring the Software to the terms and conditions of this agreement.

Entire agreement

19.4 This agreement contains the entire understanding between the parties in relation to its subject matter and supersedes any previous arrangement, understanding or agreement relating to its subject matter. There are no express or implied conditions, warranties, promises, representations or obligations, written or oral, in relation to this agreement other than those expressly stated in it or necessarily implied by statute.

Severability

19.5 If a provision of this agreement is invalid or unenforceable in a jurisdiction:

(a) it is to be read down or severed in that jurisdiction to the extent of the invalidity or unenforceability; and

(b) that fact does not affect the validity or enforceability of that provision in another jurisdiction, or the remaining provisions.

No waiver

19.6 No failure, delay, relaxation or indulgence by a party in exercising any power or right conferred upon it under this agreement will operate as a waiver of that power or right. No single or partial exercise of any power or right precludes any other or future exercise of it, or the exercise of any other power or right under this agreement.

Ipso facto legislation

19.7 If any provision of this agreement is otherwise unenforceable by virtue of the operation of the Treasury Laws Amendment, upon the occurrence of an Insolvency Event in respect of a particular party, notwithstanding any other provision of this agreement, to the maximum extent permitted by law:

(a) time is of the essence in respect of all obligations of that party under this agreement (whether falling due for performance before, upon or after the occurrence of that Insolvency Event); and

(b) any breach of this agreement by that party (whether occurring before, upon or after the occurrence of that Insolvency Event), however minor, will (alone or, severally, in combination with the occurrence of that Insolvency Event) be deemed to be a material breach of this agreement,

and, if any such material breach has occurred or occurs, the parties acknowledge and agree that such provision will instead be enforceable by virtue of the occurrence of that material breach.

Governing law and jurisdiction

19.8 This agreement and any disputes or claims arising out of or in connection with its subject matter or formation (including non-contractual disputes or claims) are governed by, and shall be construed in accordance with, the laws of Victoria, Australia.

19.9 The parties irrevocably agree that the courts of Victoria, Australia have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, this agreement or its subject matter or formation (including non-contractual disputes or claims).

Your concerns

19.10 Should you have any questions concerning the Software, Support and Maintenance and/or this agreement, please contact us at [email protected].