Terms and conditions

Capitalised terms used are defined in this Agreement, including this clause 1. Unless the context otherwise requires:

1. Definitions

Agreement means, and will be interpreted in the following order of precedence:

(a)these Terms of Service;

(b)each Site Order; and

(c)any document incorporated by reference, including the Company's Fair Use Policy.

AI Service means the Company's online artificial intelligence services.

Australia Consumer Law means the Australian Consumer Law (being Schedule 2 to the Competition and Consumer Act 2010 (Cth)).

Background Material means, for a party, any material in which the Intellectual Property Rights are owned by, licensed to or developed by or on behalf of that party which existed prior to the date of this Agreement or that was created independently by or on behalf of that party of this Agreement, but does not include the Services.

Bare Metal Service means the Company's online compute server service, and associated storage allotment dedicated to the Customer.

Business Day means a day on which banks are open for business in the Jurisdiction, but is not a Saturday or Sunday or public holiday.

Claim includes any claim, demand, remedy, suit, injury, damage, loss, cost, liability, action proceeding, right of action or claim for compensation under this Agreement whether arising under this Agreement, common law, equity or any statute.

Cloud GPU Service means the Company's online cloud-based graphics processing unit service.

Company means Resetdata Pty Ltd (ACN 651 985 483).

Commercial Details means the details and particulars in the Site Order.

Customer means the person obtaining the Service under this Agreement, as identified in the relevant Site Order.

Data means the Customer's data that is provided or supplied by or on behalf of the Customer that is hosted and processed by a Service under this Agreement.

Dispute Notice has the meaning given to it in clause 18.

Fair Use Policy means the Company's fair use policy that governs the Customer's use of the Services, as set out in the Company's Website, as amended by the Company from time to time.

Fees means the fees and charges for a Service, as set out in a Site Order, any order accepted by the Company and this Agreement.

Force Majeure Event means any event outside the reasonable control of the party which prevents the performance by that party of any of its obligations under this Agreement, and which event:

(a) was not caused or contributed to by that party;

(b)could not have been prevented by reasonable precautions or remedied by reasonable expenditure by the party which is seeking to rely on the event; and

(c)could not reasonably be circumvented through alternate sources,
including power outages and shortages, natural disasters, adverse weather conditions, an act of God, acts of government, riots, wars, strikes, lockouts, pandemics and epidemics.

Insolvency Event means any one or more of the following events occurring in respect of a person:

(a)a resolution is passed for the winding up of that person (other than for the purposes of reconstruction or amalgamation, which, in the case of a party, is on terms which have been previously approved in writing by the other party);

(b)a liquidator, provisional liquidator or receiver or receiver and manager, voluntary administrator, or administrator of a deed of company arrangement is appointed to all or any part of the property of that person;

(c)a receiver, receiver and manager, voluntary administrator or an administrator of a deed of company arrangement, is appointed to, or a mortgagee takes possession of, all or any part of the business or assets of that person;

(d)that person makes any composition or arrangement or assignment with or for the benefit of its creditors;

(e)that person or any creditor appoints a voluntary administrator or a resolution is passed for that person to execute a deed of company arrangement;

(f)that person ceases, or threatens to cease to carry on its business;

(g)that person becomes unable to pay its debts as and when they become due; or

(h)any event analogous or equivalent to the events described in paragraphs (a) to (g) occurs in respect of that person.

Intellectual Property Rights means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trade marks, service marks, designs, patents, circuit layouts, plant varieties, business and domain names, database rights, confidential information, know how, inventions and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields existing anywhere in the world, whether or not registered or capable of registration, and any goodwill associated with such activity and any applications, renewals and extensions of such rights.

Jurisdiction means New South Wales.

Malicious Code means any virus, Trojan horse, worm, logic bomb or other malicious code that infects, manipulates, modifies, denies, corrupts or inhibits the operation of a Service.

Material Breach means a material breach of this Agreement, and includes, whether remedied or otherwise:
(a) two separate breaches of this Agreement;
(b) three separate breaches of the Fair Use Policy; or
(c) three breaches of this Agreement in any two consecutive month period.

Output is defined in clause 4(d).

Personnel includes:
(a) directors,
(b) officers,
(c) employees,
(d) agents,
(e) contractors, and
(f) other representatives.

Privacy Policy means the Company's privacy policy available at the Company's Website.

Site Order means each order for a Service placed by the Customer through:
(a) the Company's online ordering platform, or
(b) such other order as otherwise accepted by the Company.

Service means each of the following:
(a) Baremetal Service;
(b) Virtual Machine Service;
(c) Cloud GPU Service;
(d) AI Service; and
(e) any other service identified in the relevant Site Order.

Service Level means the service level in Schedule 1 to this Agreement.

Virtual Machine Service means the Company's online computer or computer server service.

Website means the Company's website located at https://www.resetdata.ai or such other website as notified by the Company from time to time.

2. Interpretation

In this Agreement, unless the context requires otherwise:
(a) the singular includes the plural and vice versa;

(b) the headings are used for convenience only and do not affect the interpretation of this Agreement;

(d) a reference to a document includes the document as modified from time to time and any document replacing it;

(e) a reference to a party is to a party to this Agreement and a reference to a party to a document includes the party's executors, administrators, successors and permitted assigns and substitutes;

(f) if something is to be or may be done on a day that is not a Business Day then it must be done on the next Business Day;

(g) the word "person" includes a natural person, partnership, body corporate, association, governmental or local authority, agency and any other body or entity whether incorporated or not;

(h) the word "month" means calendar month and the word "year" means 12 months;

(i) the words "in writing" include any communication sent by letter, facsimile transmission or email or any other form of communication capable of being read by the recipient;

(j) a reference to a thing includes a part of that thing;

(k) a reference to all or any part of a statute, rule, regulation or ordinance (statute) includes that statute as amended, consolidated, re-enacted or replaced from time to time;

(l) wherever "include", "for example" or any form of those words or similar expressions is used, it must be construed as if it were followed by "(without being limited to)";

(m) money amounts are stated in Australian currency unless otherwise specified;

(n) a reference to time is to the time in the Jurisdiction;

(o) any agreement, representation, warranty or indemnity in favour of two or more parties (whether those parties are included in the same defined term or not) is for the benefit of them jointly and severally; and

(p) any agreement, representation, warranty or indemnity by two or more parties (whether those parties are included in the same defined term or not) binds them jointly and severally.

3. Obtaining a Service and variations

(a) The Customer may obtain a Service by placing a Site Order for that Service. On acceptance by the Company of such Site Order, the Company will provide the Customer with the Services set out in that Site Order in accordance with this Agreement (including the Commercial Details in that Site Order).

(b) If more than one Service is ordered through the Site Order, the Customer acknowledges and accepts that this Agreement will apply to each Service as a separate and independent contract on acceptance by the Company of such Site Order.

4. Provision of Services

(a) The Company will use commercially reasonable efforts to provide, and the Customer agrees to acquire, the Services on the terms of this Agreement.

(b) The Company:

(i) will use reasonable care in providing the Services, but it does not guarantee that such Services will be free from fault, interruption or external influence;

(ii) will use suitably qualified personnel and provide the Services under this Agreement;

(iii) will endeavour to meet the applicable Service Level;

(iv) may monitor the Customer's use of the Services; and

(v) may modify, add, replace or update a Service, or any part of it at any time, but the Company will not remove or materially reduce any functionality from a Service without first informing the Customer of such change. If the Company removes or materially reduces the overall functionality of a Service, the Company may cancel the charged Service without incurring any fees.

(i) will provide the Company with all information reasonably requested by the Company to enable the Company to provide the requested Services;

(ii) agrees that nothing in this Agreement provides the Customer with any ownership rights in and to the Services (including the underlying platforms, facilities, infrastructure and systems used by the Company to provide the Services);

(iii) is solely responsible for:

(A) its Data, including the use of the Data; and

(B) ensuring that the Data complies with all applicable laws;

(iv) must ensure that its Personnel comply with this Agreement; and

(v) will comply with the Fair Use Policy.

(d) The Customer acknowledges and agrees that:

(i) outputs from a Service that incorporates or utilises artificial intelligence tools, systems and models, including the AI Service, (Outputs) may not be accurate at all times;

(ii) it must evaluate, assess and determine the accuracy and suitability of any such Outputs for the Customer's purposes; and

(iii) it is solely responsible for all decisions or otherwise that it makes, whether or not such decisions (including business, or other important decisions) pursuant to its use of any such Output.

5. Customer obligations

1. The Customer:

(i) must only use the Services in accordance with this Agreement, including any restrictions and guidelines set out in the Site Order;

(ii) is responsible for obtaining all required facilities, equipment, software and network services to enable it to access and use a Service;

(iii) must not provide, resell or otherwise make a Service available to any other third parties;

(iv) must use commercially reasonable efforts to prevent unauthorised access to or use of a Service, and promptly notify the Company of any unauthorised access or use that it is, or becomes, aware of;

(v) is responsible for the Data, including its accuracy, quality and compliance with all relevant laws and regulations;

(vi) must ensure that it has regular backups of all its systems, facilities and Data;

(vii) must not interfere with or disrupt the integrity or performance of a Service, including attempting to access or disrupt the underlying platforms used by the Company to provide the Service;

(viii) must comply with all applicable laws, and must not use any Service for fraudulent or otherwise unlawful purposes or for purposes which would infringe the rights (including Intellectual Property Rights) of another person, or attempt to gain unauthorised access to any Service or its related systems or networks;

(ix) must not, directly or indirectly, reverse engineer, decompile or otherwise discover the source code or underlying components of a Service, including the Company's systems, algorithms, and models (including large language models), unless otherwise permitted by law;

(x) must not identify, represent, warrant or otherwise indicate that the outputs of a Service is generated by a human when such outputs were not, including in respect of the AI Service;

(xi) must not introduce to a Service, or use a Service to store or transmit Malicious Code; and

(xii) must comply with all reasonable directions provided by the Company with respect to any Service and at the Company's request and provide reasonable assistance and information to assist the Company to investigate any issues relating to a Service or any suspected breach of the Agreement.

2. The Customer is responsible for:

(i) all use of the Services by its Personnel; and

(ii) all actions taken by a user accessing a Service using the login or other user details of a user to access and use a Service, whether authorised or otherwise.

3. The Customer must comply with all third party terms that apply to the Services, as notified by the Company to the Customer from time to time or as otherwise provided to the Customer at the relevant time (for example, during a sign-up process)

6. Fees and charges

6.1. Fees and charges

(a) The Company may invoice the Services for, and the Customer will pay the Company, the Fees set out in the Commercial Details in a Site Order or otherwise in this Agreement.

(b) If a Site Order specifies a Service term or other minimum term for a Service, then the Customer must pay an early termination fee if the Customer terminates that Service before the expiry of the initial or minimum term for any reason other than for the Company's Material Breach. Unless otherwise indicated in a Site Order, the early termination fee is the amount equal to 75% of the monthly fee payable for the terminated Service multiplied by the number of months (or part thereof) from the date of termination to the expiry of the initial or minimum term.

(d) If the Customer is required by law to withhold or deduct an amount from any amount payable to the Company, then the Customer will:

(i) pay the amount required to be withheld or deducted to the relevant revenue or collection authority within the time allowed for such payment;

(ii) provide the receipts to the Company; and

(iii) pay such additional amounts as are necessary to ensure that after making the deduction or withholding, the Company receives the full amount required to be paid before giving effect to such deduction.

6.2. Payment

(a) The Customer must pay the Fees to the Company within 30 days of the date of the Company's invoice or as otherwise stated in the Commercial Details.

(b) The Customer acknowledges and agrees that any monthly Fee applies to each month or part thereof.

(c) The Customer may dispute any amount in an invoice by giving the Company notice within ten Business Days of the date of that invoice. If so, then the Customer must:

a. pay the portion of the amount stated in the invoice which is not in dispute in accordance with the terms of payment set out in this Agreement; and

b. give the Company its reasons for disputing the remainder of the invoice.

6.3. Fee Review

(a) The Company may review and vary a Fee on 30 days' notice to the Customer if the relevant Service (or any part thereof) is provided by the Company to the Customer on a resale basis, and the relevant third party service provider has revised its Fees and other fees for that Service (or any component or part thereof).

(b) Subject to paragraph (1) above, the Company may review and vary a Fee on 30 days' notice to the Customer once each calendar year.

(c) The parties agree that any variation pursuant to paragraphs (1) and (2) above takes effect on the date specified in such notice or, if no date is so specified, in the month following the end of the relevant notice period.

6.4. GST

(a) Definitions and Interpretation

For the purposes of this clause:

(i) GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth);

(ii) words and phrases that have a defined meaning in the GST Act have the same meaning when used in this clause;

(iii) unless otherwise expressly stated in this Agreement, all consideration to be provided under this Agreement is exclusive of GST; and

(iv) each periodic or progressive component of a supply to which section 156-5(1) of the GST Act applies will be treated as if it were a separate supply.

(b) Payment of GST

(i) If GST is payable, or notionally payable, on a supply made under or in connection with this document, the party providing the consideration for the supply must pay to the supplier an additional amount equal to the amount of GST payable on that supply (GST Amount).

(ii) The GST Amount is payable at the same time as the GST-exclusive consideration for the supply, or the first part of the GST-exclusive consideration for the supply (as the case may be), is payable or is to be provided.

(iii) This clause 6.4 does not apply to the extent that the consideration for the supply is expressly stated to include GST or the supply is subject to a reverse-charge.

If an adjustment event arises for a supply made under or in connection with this Agreement, the GST Amount must be recalculated to reflect that adjustment, the supplier or the recipient (as the case may be) must make any payments necessary to reflect the adjustment and the supplier must issue an adjustment note.

(d) Reimbursement

(i) Any payment, reimbursement, indemnity or similar payment that is required to be under this Agreement that is calculated by reference to an amount paid by another party will be reduced by the amount of any input tax credits which the other party (or the representative member of any GST group of which the other party is a member) is entitled.

(ii) If the reduced payment is consideration for a taxable supply, clause 6.4(b) will apply to the reduced payment.

6.5. Direct Debit

The Customer acknowledges, accepts and authorises the Company to direct debit any Fee payable or any other fee under this Agreement in accordance with Schedule 2. The Company will not be liable for any fee or other payment in connection with a direct debit.
The Company may, from time to time, charge payment processing Fees (which are Fees under this Agreement) for direct debit payments made through certain payment methods (for example, credit card payments). These payment processing Fees are set out on resetdata.ai or otherwise notified to the Customer from time to time. The Customer will pay all such payment processing and other fees associated with a direct debit, if any.

7. Cross connection

(a) The Company may charge, and the Customer is liable for, any cross connection Fee in connection with the Services.

(b) The parties agree that the cross connection Fees will be charged for each connection, and the amount of each cross connection Fee may be different depending on, without limitation, volume of data being retrieved or accessed.

8. Specific Terms for each Service

8.1. IP addresses

If any of the Services require internet protocol addresses (IP addresses), the Customer acknowledges that these IP addresses are only rented out and that the Customer and the Company are not the registered proprietors. Rather, the third-party provider of such IP addresses remain as the registered proprietors.

8.2. Baremetal Service

(a) The Customer will have an exclusive right to use the physical server or part of the physical server in accordance with the Site Order with respect to the Baremetal Service.

(b) The Customer’s right in clause 8.2(1) is transferable to another party only if the other party expressly agrees in writing to be bound and comply with this Agreement.

(c) The Company remains the registered proprietor of the servers at all times, including after the expiry of this Agreement.

(d) The Customer acknowledges and accepts that they are required to purchase any and all software licences or other requirements for the operation of the servers or anything else in connection with the Baremetal Services.

(e) The Company does not have any obligation and will not pay any amount with respect to clause 8.2(4).

(f) The Company will not be liable for any loss of actual or anticipated income or profits, loss of contracts or business, loss of information of any kind, loss of reputation or goodwill or special, indirect or consequential loss or damage of any kind, however arising in connection with the third party Baremetal Service.

8.3. Virtual Machine Service

(a) The Customer will have a non-exclusive and non-transferable right to use the Virtual Machine Service.

(b) The Company may use third parties to provide the Virtual Machine Service.

(c) The Company will not be liable for any loss of actual or anticipated income or profits, loss of contracts or business, loss of information of any kind, loss of reputation or goodwill or special, indirect or consequential loss or damage of any kind, however arising in connection with the third party Virtual Machine Service.

8.4. Cloud GPU Service

(a) The Customer will have a non-exclusive and non-transferable right to use the Cloud GPU Service.

(b) The Company will not be liable for any loss of actual or anticipated income or profits, loss of contracts or business, loss of information of any kind, loss of reputation or goodwill or special, indirect or consequential loss or damage of any kind, however arising in connection with the third party Cloud GPU Service.

8.5. Scheduled Downtime

The Company may make any repairs, modifications, additions and upgrades to a Service, including engaging in system maintenance, as it deems necessary or desirable (Scheduled Downtime), provided that:

(a) the repairs, modifications, additions or upgrades do not substantially change (other than through improvements) the functionality of the Service;

(b) the Company takes reasonable steps to advise Customer in advance of any Scheduled Downtime; and

8.6. Emergency Maintenance

(a) The Company may limit or suspend a Service from time to time for urgent or emergency maintenance and repairs to that Service at any time (Emergency Maintenance).

(b) The Company will endeavour to give as much prior notice of such Emergency Maintenance if it is reasonably practicable to do so.

9. Service Levels

(a) A Service Level is a target for the purposes of this Agreement. The Company will use commercially reasonable endeavours to meet a Service Level.

(b) Unless otherwise indicated in Schedule 1 to this Agreement, the time taken for Scheduled Downtime and Emergency Maintenance is excluded from the calculation of a Service Level.

(c) The Company is solely responsible for measuring, calculating and reporting on its performance against a Service Level.

(d) If the Company fails to meet a Service Level, and a service rebate is specified in Schedule 1 of this Agreement for such failure, then the Customer may claim the service rebate by notifying the Company within 60 days of such Service Level failure. A service rebate is the Customer's sole and exclusive remedy, and the Company's only liability, with respect to the Company's failure to meet the applicable Service Level failure.

(e) The rebate will be in the form of a credit to the Customer’s account and will not be a cash reimbursement.

10. Marketplace Terms of Service

10.1. Marketplace

The marketplace is an online marketplace (Marketplace) for cloud applications, plug-ins and extensions for use with the relevant Service (each, an "App").

10.2. Scope

(a) ResetData publishes a listing for Apps that are available on the Marketplace.

(b) The Customer may obtain a subscription to an App by placing an order with the Company. Each order placed by the Customer through the Marketplace, and accepted by the Company, is taken to be incorporated into, and is governed by, the terms of this Agreement.

10.3. Fees

The parties acknowledge that Fees may apply to certain Apps, and agree that such Fees will be specified in the listing for the relevant App.

10.4. Customer obligations

(a) The Customer must promptly notify the Company of any unauthorized use of, or access to, the Marketplace.

(b) The Customer will not, and will not allow its Personnel and users to:

(i) copy, modify, or create a derivative work of the Marketplace or an App;

(ii) reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract any or all of the source code of, the Marketplace or an App (except to the extent such restriction is expressly prohibited by applicable law); or

(iii) access or use the Marketplace in a manner intended to avoid fees or to circumvent any other applicable limits or quotas.

10.5. Licence

If the Supplier provides an App to the Customer through the Marketplace pursuant to this clause 10, then each such App is taken to form part of the relevant Service to which that App relates.

10.6. Termination of subscription

(a) Either party may terminate a subscription to an App on 90 days' notice, or such other notice period notified to the Customer at the relevant time the Customer obtains the App, to the other party of such termination.

(b) The Company may terminate a subscription to an App on notice to the Customer (which may be immediate) if, in the reasonable opinion of the Company, the Customer has breached or is in breach of this Agreement.

(c) If a subscription to an App is terminated, the Customer must cease using that App, and must pay all applicable Fees for that App until the date of termination (including any early termination fees). The Customer is not entitled to receive, and the Company is not liable to provide, any refunds for pre-paid subscription Fees for a terminated App.

11. Termination Rights

(a) The Company may terminate this Agreement immediately on notice to the Customer if:

(i) the Customer commits a Material Breach;

(ii) the Customer breaches this Agreement, and such breach is not capable of remedy;

(iii) the Customer breaches this Agreement and, if such breach is capable of remedy, the Customer fails to remedy such breach within fourteen (14) days of the Company's notice to do so; or

(iv) an Insolvency Event occurs or arises in respect of the Customer.

(b) If this Agreement expires or is terminated (for any reason), or if a Service is terminated (for any reason):

(i) the Customer must pay all Fees, including early termination fees, for the terminated Services;

(ii) the Customer is not entitled to receive, and the Company is not liable to provide, any refunds for pre-paid Fees for a terminated Service;

(iii) the Customer must cease accessing and using the terminated Service;

(iv) the Customer is responsible for obtaining its Data from the terminated Services; and

(v) the Company may delete the Customer's Data from the terminated Service after 90 days of the date of termination.

(c) This clause 11 and clauses 14, 16, 17, 18, 19, 20 and any indemnity and other provision of this Agreement which by their nature survive expiration or termination, will survive expiration or termination of this Agreement.

12. Suspension

(a) Without qualifying or limiting the Company’s rights under clause 11, the Company may suspend a Service if any of the events in clause 11(1) occurs (as determined by the Company, acting reasonably).

(b) The Company may limit, suspend, or cancel a Service, on notice to the Customer if it reasonably believes:

(i) the supply or use of a Service is, or is likely to become unlawful;

(ii) the provision of a Service is likely to cause death, personal injury, or damage to property;

(iii) the Customer has failed to comply with the Company's Fair Use Policy; or

(iv) the Customer adversely interferes with (or threatens to interfere with) the systems, facilities, and network used by the Company to provide that Service.

(c) If the Company suspends or limits a Service pursuant to paragraph (2) above, and the parties agree that such Service will be reactivated, then the Customer is liable for and must pay the applicable Fees and any other reasonable costs associated with or in connection with the suspension and reactivation of the Services, as notified by the Company to the Customer at the relevant time.

13. Information

13.1. Personal Information & Privacy

The Company will collect, use and disclose personal information of the Customer in accordance with the Company’s Privacy Policy.

13.2. Information Generally

(a) The Customer is solely responsible for obtaining all authorisations, consents and licenses in relation or in connection with any Data and Materials provided and disclosed to the Company.

(b) The Customer is solely responsible and liable with respect to any Claim in connection with the Data provided and disclosed to the Company.

(i) to the best of its knowledge, there is no Malicious Code in any Data provided and disclosed to the Company; and

(ii) it has all necessary rights, approvals and consents, including Intellectual Property Rights, to provide and disclose the Data and information to the Company; and

(A) pornographic material;

(B) spam;

(D) offensive, abusive or sexually obscene content;

(E) libellous or defamatory content; and

(F) data that is discriminatory in respect of any individual or group.

13.3. Information at the end of the Agreement

At the expiry of this Agreement or earlier termination for any reason, any and all Data provided to the Company as part of the Services will be immediately erased.

13.4. Back up of Data

The Company is not obliged to back up any Data in respect of any Services, unless the Customer obtains a backup Service (if available). The Customer further acknowledges that no Data provided to the Company will be stored or backed up in a secondary manner.

If the Customer obtains a backup Service, then the Company is only responsible for backing up the specified Data in accordance with the terms of that backup Service (as provided to the Customer at the time the Customer obtains that backup Service, and as amended by the Company on notice to the Customer from time to time).
The Company may charge, and the Customer agrees to pay, the relevant Fees for the backup Service in accordance with this Agreement (including the Commercial Details of the Site Order).

13.5. Security of Data

(a) The Company employs its own firewalls and third party cybersecurity systems. The Customer is required to have its own firewall and cybersecurity at its end.

(b) If there are specific security measures required by the Customer, then the Customer must immediately notify the Company so that these can be considered and employed only if the Company expressly agrees.

14. Intellectual Property

(a) The Customer acknowledges and agrees that all Intellectual Property Rights of whatever nature in the Services (including the product of any Services), as at the date of this Agreement and as modified and updated from time to time, are, as between the parties, owned by, and will at all times remain owned by, the Company.
Nothing in this Agreement will be construed as transferring any such ownership rights to the Customer or any third party.

(b) Nothing in this Agreement affects the ownership of a party's Background Material.
Each party grants the other party a non-exclusive, non-transferable, royalty free license to use the Background Materials provided by the first party to the other solely for the purposes, and to the extent necessary, for the other party to perform its obligations and exercise its rights under this Agreement.

(c) The Customer must immediately notify the Company if it becomes aware that any Service infringes, or may infringe, the Intellectual Property Rights of any third party.

(d) If the Customer suggests any new features, improvements, or corrections to a Service, it assigns all Intellectual Property Rights in and relating to such suggestion to the Company.

(e) The Company may use the Data provided or otherwise made available by or on behalf of the Customer as required to provide the Services, including to process such Data as part of the relevant Service.

(f) The Customer must not, whether directly or indirectly:

(i) reverse engineer a Service;

(ii) build a competitive product or Service;

(iii) make derivative works based upon a Service;

(iv) remove, modify or obscure any copyright, trade mark or other proprietary rights that appear on a Service; or

(iv) "frame", "mirror" or otherwise copy any features, functions or graphics of any Service.

15. Warranties

15.1. General

(a) The parties warrant that they have the full legal capacity, authority, and power to enter into and perform their obligations under the Agreement.

(b) To the full extent permitted by law, all conditions and warranties which would otherwise be implied in this Agreement are excluded.

(c) Other than as expressly set out in this Agreement, the Company makes no warranties as to the Services. The Customer acknowledges that it has not relied on any representation made by the Company which has not been stated expressly in this Agreement.

15.2. Australian Consumer Law

(a) Where the Customer is a consumer for the purpose of the Australian Consumer Law, then Customer is entitled to consumer guarantees conferred by the Australian Consumer Law.
For the Services, the consumer guarantees include a guarantee that any Services provided by the Company to the Customer will be:

(i) provided with due care and skill;

(ii) fit for the purpose specified by the Customer; and

(iii) provided within a reasonable time, where no time has been agreed.

(b) If a consumer guarantee applies to the provision of a Service pursuant to the Australian Consumer Law, and the Service is not of the kind ordinarily acquired for personal, domestic or household use or consumption, then Service Provider limits its liability for any breach of such consumer guarantee that applies to its Service, as provided under section 64A of the Australian Consumer Law, to (at its option):

(i) the re-supply of the Services; or

(ii) the payment of the cost of having the Services re-supplied.

16. Liability

(a) To the maximum extent permitted by law, and subject to clause 16(4), the Company excludes all liability for:

(i) Outputs;

(ii) loss or corruption of data;

(iii) loss of actual or anticipated income or profits;

(iv) loss of contracts or business;

(v) loss of information of any kind provided to the Company;

(vi) loss of reputation or goodwill; or

(vii) special, indirect or consequential loss or damage of any kind, howsoever arising in connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty, breach of privacy laws (including the Privacy Act) or otherwise under this Agreement.

(b) Nothing in this Agreement operates to limit or exclude any rights under Australian Consumer Law or a party's liability for:

(i) bodily injury or death;

(ii) damage to real property and tangible personal property caused by that party's breach of this Agreement or its negligent act or omission;

(iii) fraudulent acts or omissions;

(iv) the Customer's breach or infringement of any Intellectual Property Rights of any person; or

(v) any Fees payable under this Agreement.

(c) The liability of a party in connection with this Agreement (including under an indemnity) will be reduced to the extent that it is caused, or contributed to, by a breach or default under this Agreement by the other party.

(d) Subject to paragraph (2) above, the Company's maximum aggregate liability under or in connection with this Agreement, however arising (including contract, tort, negligence, law or otherwise), is limited to:

(i) where the claims relate to a Service, the Fees paid by the Customer to the Company for the Service that is the subject of those claims; and

(ii) subject to paragraph (i) above, the Fees paid by the Customer to the Company in the first six months of this Agreement.

17. Indemnity

The Customer indemnifies the Company against all liability, losses and damages arising from or in connection with:

(a) any third party claim against the Company as a result of a breach of this Agreement by the Customer or the Customer's use of the Services;

(b) any breach of a third party's Intellectual Property Rights by the Company or its personnel, contractors and representatives; and

(c) any third party claim against the Company arising out of any information or Data provided or disclosed to the Company by the Customer, except to the extent that such loss, liability or damage is caused or contributed to by the Company’s negligence or default.
This clause survives the expiry or termination (for any reason) of this Agreement between the parties.

18. Dispute Resolution

(a) If a dispute arises between the parties in relation to the operation or interpretation of this Agreement, the parties will use their best endeavors to settle the dispute in good faith in accordance with the provisions of this clause 18.

(b) If a dispute arises between the parties, a party may give written notice to the other party that the dispute exists (Dispute Notice) setting out:

(i) the nature of the dispute;

(ii) how the dispute arose;

(iii) the solution sought; and

(iv) the name and contact details of the representative with the appropriate authority to negotiate the dispute on behalf of the party giving the Dispute Notice.

(c) Within 5 Business Days of receipt of the Dispute Notice, the recipient must designate a representative with similar authority. The representatives must promptly discuss the dispute, following whatever investigation each considers appropriate.

(d) If the dispute is not resolved within 5 Business Days of such discussions, if the parties fail to resolve the dispute, the parties may agree a mediator, or request that the Australian Disputes Centre (ADC) appoint a mediator under its “Guidelines for Commercial Mediation”, to assist in resolving the dispute.
The parties will use reasonable efforts to resolve the dispute in accordance with the ADC’s “Guidelines for Commercial Mediation”.

(e) It is a condition precedent to the right of either party to commence arbitration or litigation (other than for interlocutory relief) that it has first offered to submit the dispute to mediation.

(f) The parties agree to bear their own costs concerning any mediation and the costs of the mediator will be borne equally between the parties.

(g) During the period the dispute is ongoing each party must continue to perform its obligations under this Agreement.

19. Notification Regime

A notice or other communication pursuant to or in connection with this Agreement will:

(a) be in writing addressed to the address of the recipient shown in the Site Order or to such other address as it may have notified the sender in writing;

(b) be signed by an authorised representative of the sender or those persons specified in the Site Order; and

(i) in the case of mail: on the third Business Day after the date of posting;

(ii) in the case of delivery by hand: on delivery (but if such delivery is later than 5pm on a Business Day, it will be deemed to have been duly given at the commencement of business on the next Business Day); or

(iii) in the case of delivery by email: when the email is sent to that person’s email address, unless the sender receives a communication that the email is undeliverable or not delivered.

20. General

20.1. Amendments to this Agreement

The Company may amend this Agreement from time to time, provided that it provides the Customer with not less than 30 days' notice of such amendment.

If the amendments are materially detrimental to the Customer, then the Customer may cancel the relevant Service on written notice to the Company, and no early termination fees will apply to such termination.

Any amended terms will apply from the specified notice period, and the Customer is taken to have consented to such amended terms if it continues to use the affected Service after that date.

20.2. Internet Usage

(a) The Customer accepts that when using the Service, the Customer:

(i) is responsible for any and all material that is accessed, or becomes accessible, through or in connection with the internet;

(ii) is responsible for any and all electronic communication that takes place through the Service; or

(iii) must comply with any rules, policies, regulations, by-laws, or other regulatory instruments of any third party whose content or service the Customer accesses through the Service.

(b) For the avoidance of doubt, none of the Services provide internet connectivity and the Customer is solely responsible for any internet connection required.

20.3. Regulatory Requests

(a) The Company may be directed by a regulatory or other law enforcement body to remove material from the Services or prevent access to any material or Data otherwise held in connection with a Service by any other person.

(b) The Company may also be required, or requested, to remove material from the Services that infringe a third party’s Intellectual Property Rights.

20.4. Force Majeure

Where any failure or delay in the performance of obligations under this Agreement is caused, directly or indirectly, by a Force Majeure Event, excluding the Customer's obligation to pay Fees:

(a) the party affected by the Force Majeure Event (Affected Party) must as soon as practicable give the other party notice of that fact;

(b) the Affected Party is not liable for that failure or delay, provided that the Affected Party will use all commercially reasonable efforts to avoid or remove such causes of non-performance and both parties will proceed whenever such causes are removed or cease;

(c) the affected obligations of the Affected Party under this Agreement are suspended, to the extent to which they are affected by the relevant Force Majeure Event, for the duration of the Force Majeure Event; and

(d) if the Force Majeure Event continues for more than ninety (90) consecutive days and while it continues, any party other than the Affected Party may, at its sole discretion, terminate this Agreement on notice to the Affected Party and all other parties (if any).

20.5. Waiver

No forbearance, delay or indulgence by a party in enforcing the provisions of this Agreement will prejudice or restrict the rights of that party, nor will any waiver of those rights operate as a waiver of any subsequent breach.

20.6. Entire Agreement

This Agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to the Services.

Subject to clause 20.1, no addition to or modification of any provision of this Agreement will be binding upon the parties unless made by written instrument signed by a duly authorised representative of the party.

20.7. Severability

Should any part of this Agreement be or become invalid, that part must be read down to the minimum extent necessary to achieve its validity, if applicable, or will be severed from this Agreement.
Such invalidity will not affect the validity of the remaining provisions of the Agreement.

20.8. No Assignment

The Customer must not assign, novate or otherwise transfer the benefit of this Agreement without the Company's prior written consent (which may be given at its discretion).
The Company may assign, novate or otherwise transfer the whole or part of this Agreement to any person without the Customer's prior consent.

20.9. Further Assurances

A party, at its own expense and within a reasonable time of being requested by another party to do so, must do all things and execute all documents that are reasonably necessary to give full effect to these Terms.

20.10. Governing Law

This Agreement will be governed by and construed in accordance with the laws for the time being in force in the Jurisdiction and the parties agree to submit to the Jurisdiction of the courts and tribunals of that Jurisdiction.