2.1 Access to Platform
2.2 Access restrictions and monitoring
During the Term, the Customer, in using the Platform, must:
2.3 Use restrictions
The Customer must not do, attempt to do, or assist any Third Party to do, any of the following:
3.1 Service obligations and exclusions
3.2 Remedial action
3.3 Support services
3.4 General maintenance
The Supplier will use reasonable endeavours to make the Platform accessible 24 hours a day, 7 days a week, except for:
3.5 Modification and discontinuance of the Service
6.1 Payment of Subscription Fees
6.2 Fee increases
6.3 Outstanding amounts
7.2 Licence to permit access
7.3 Access permissions
7.4 Usernames and passwords
8.1 Obligation not to disclose Confidential Information
If there is any uncertainty as to whether any information is Confidential Information, that information must be treated as Confidential Information of the Supplier.
This clause 8 applies as long as the information remains Confidential Information.
9.1 Licence for Customer Data
9.2 Personal Information and other sensitive data
The Customer warrants that, in relation to any Customer Data comprising Personal Information or otherwise sensitive data:
10.1 Non-excludable Obligations
10.2 Exclusion of liability
Except in relation to Non-excludable Obligations:
10.3 No warranties or guarantees
Except in relation to Non-excludable Obligations:
13.1 Termination by the Customer
13.2 Termination by the Supplier
The Supplier may terminate this Agreement by giving notice with immediate effect if:
13.3 Termination for a Force Majeure Event
Either party may terminate this Agreement by giving notice with immediate effect if a Force Majeure Event continues for more than 30 consecutive days.
13.4 Effect of termination
17.1 Electronic communication
The parties consent to giving and receiving notices electronically, and this Agreement may be executed and delivered electronically, in accordance with the Electronic Transactions (Victoria) Act 2000 (Vic).
17.2 No restraints
This Agreement will not prevent the Supplier from:
17.3 Approvals and consent
Except as set out in this Agreement, a party may:
17.4 No waiver
A waiver of a right, power or remedy must be signed by the party giving it and cannot be implied by conduct, delay or failure to act.
If any part of this Agreement is or becomes invalid or unenforceable under any Relevant Law, it is severed in the relevant jurisdiction but only to the extent it is invalid or unenforceable.
17.7 No merger
On completion or termination of this Agreement, the rights and obligations of the parties set out in this Agreement will not merge and survive after termination or completion.
17.8 Relationship of the parties
Unless otherwise provided in this Agreement, no party is authorised to bind another party and nothing in this Agreement is to be construed as creating an employment, agency, partnership, fiduciary or joint venture relationship between any of the parties.
17.9 Remedies cumulative
Except as provided in this Agreement and permitted by any Relevant Law, the rights, powers and remedies provided in this Agreement are cumulative with and not exclusive to the rights, powers or remedies provided by any Relevant Law independently of this Agreement.
17.10 Entire agreement
This Agreement constitutes the entire agreement between the parties in relation to, and supersedes any prior conduct, arrangement, agreement or understanding of, its subject matter.
Each party must pay its own costs for the negotiation, preparation, execution and performance of this Agreement, unless otherwise set out in this Agreement.
17.12 Governing law and jurisdiction
Additional Service Proposal has the meaning given in clause 4(b).
Additional Services means services outside the then current scope of the Services.
Approval means any approval of a Government Agency, permit, licence, authorisation, registration or similar required under any Relevant Law in connection with this Agreement.
Australian Consumer Law means the Competition and Consumer Act 2010 (Cth) Schedule
Authorised User means:
Business Day means a day other than a Saturday, Sunday, or gazetted public holiday in Melbourne, Victoria.
Centre Licence has the meaning in clause 7.2(a).
Claim means any claim, demand, remedy, suit, action, proceeding, right of action, however arising.
Commencement Date means the date the Customer accepts the terms of this Agreement by submitting the Order Form to the Supplier.
Confidential Information means all information of a confidential, commercially sensitive or valuable nature, including Intellectual Property of a party, financial, sales, customer, employee or supplier information, processes, statements, trade secrets and marketing plans data, other than information that is public or information previously disclosed to the receiving party on a non-confidential basis.
Consequential Loss means any of the following:
Corporations Act means the Corporations Act 2001 (Cth).
Credentials has the meaning in clause 7.4(a).
Customer means the person referred to as the customer in the Order Form.
Customer Data means all data, content, works, materials and metadata:
Documentation means the manuals, user guides, videos and other documents, including training materials made available to the Customer by the Supplier relating to the Services, including updates, replacements, revisions and additions to such documentation, provided or made available by the Supplier from time to time.
Feature Release means a release of the Platform which adds features or functionality to, or otherwise amends or improves, the Platform, but which does not constitute a Maintenance Release or a New Module.
Force Majeure Event means an act, event, omission or accident beyond a party’s reasonable control, including strikes, lock-outs or other industrial disputes, failure of a utility service or transport or telecommunications network, act of God, fire, flood, storm, earthquake, other physical natural disaster or extreme weather conditions, or any other weather conditions which would be expected to place at risk the health or safety of the employees of a party or any other person, sabotage, war, riot, civil commotion, acts of terrorism or hostilities, a quarantine, epidemic, pandemic, outbreak or recurrence of a contagious disease or virus (including COVID-19), or any derivative or mutation of such viruses or disease, or the threat or perceived threat of any of these, computer hacking, malicious damage, compliance with any law or governmental order, rule, regulation or direction, a state of emergency that has been declared by an authority, accident, breakdown of plant or machinery, default of hosting or data centre providers or other suppliers or sub-contractors and shortage of supplies, equipment and materials.
Government Agency means any governmental, judicial or statutory body with authority or jurisdiction over this Agreement or a party.
GST has the meaning given in the GST Act.
GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Insolvency Event means in relation to a party, any of the following events or circumstances:
in each case, unless the event or circumstance occurs as part of a solvent reconstruction, amalgamation, scheme, compromise, arrangement, merger or consolidation approved by the other party, not to be unreasonably withheld.
Intellectual Property means the business names, copyright, patents, trade marks, trade names, designs and similar industrial, commercial and intellectual property and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields anywhere in the world, regardless of the form and whether or not registered or registrable.
Loss means any liability, loss, injury, illness, damage, cost or expense, including legal costs on a full indemnity basis and Consequential Loss.
Maintenance Release means a release of the Platform which fixes bugs, resolves issues and improves system performance, but which does not constitute a Feature Release or a New Module.
Malware means any virus, worm, trojan, malicious software or code, or similar harmful materials, that is intentionally designed to cause damage, adversely affect, or gain unauthorised access to the network, computer system, software, or electronic data.
New Module means a self-contained grouping of functionality that represents new and material functionality not previously contained within the current version of the Platform and which is being commercially offered by the Supplier as an option that Customers may purchase for an additional fee..
Normal Business Hours means 8am to 5pm each Business Day.
Order Form means the Platform subscription order form accessible via the Supplier’s website, or otherwise labelled, referred to or notified by the Supplier as such.
Personal Information has the meaning given in the Privacy Act 1988 (Cth).
Personnel means, in relation to a party, its directors, officers, employees, contractors, agents and authorised representatives.
Privacy Act means the Privacy Act 1988 (Cth).
Privacy Laws means all privacy and data protection laws and regulations relating to privacy, data security, cybersecurity and the collection, storage, use and disclosure of Personal Information in any relevant jurisdiction, including the Privacy Act.
Related Body Corporate has the meaning in the Corporations Act.
Relevant Law means any law, regulation, mandatory guideline or standard, ordinance, court ruling or requirement or direction of a Government Agency, or similar, in any jurisdiction in which any part of this Agreement is performed, or governing the Services or a party, at any time.
Representative means, in respect of a person, any director, officer, employee, agent, contractor, adviser or Related Body Corporate of or to that person, or any director, officer, employee, agent, contractor or adviser of or to a Related Body Corporate of that person.
Subscription Fees means the subscription fees specified in the Order Form, unless otherwise agreed between the parties.
Subscription Term means the subscription term specified in the Order Form, unless otherwise agreed between the parties, and includes any Trial Period.
Supplier means Xap Technologies Pty Ltd (ACN 169 623 009).
Term has the meaning in clause 1.
Third Party means a party other than a party to this Agreement.
hird Party Products means any software, product, service or material (including any related Intellectual Property) provided by a Third Party.
Trial Period has the meaning in clause 6.1(b).
In the interpretation of this Agreement, unless stated otherwise: