Sonnant Terms & Conditions

1. Definitions and Interpretation

1.1 Definitions

 

            Aggregated Data means data that has been aggregated in a manner that does not reveal any Personal Information and cannot reasonably be used to identify the Customer or an Authorised User as the source of such data.

           Agreement means this document, each Order Form and all documents and policies referred to in this document.

           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 2.

           Authorised User means any Personnel of the Customer authorised to access the Platform under the Customer’s User Licence.

           Back-Up Policy means the document that defines the policies and procedures for the Supplier to backup, archive and recover  Customer Data, the Documentation and the Platform.

           Business Day means a day other than a Saturday, Sunday, or gazetted public holiday in Melbourne, Victoria, Australia.

           Claim means any claim, demand, remedy, suit, action, proceeding, right of action, however arising.

           Commencement Date means the date both parties have agreed to enter into this Agreement, being the date the Customer registers for an account on the Platform.

           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:

            (a)          incidental, special, remote or unforeseeable loss or damage;

            (b)          loss of revenue, profit, income, bargain, opportunity, use, production, business, contract, goodwill, or anticipated savings, loss, damage or corruption of data, loss caused by business interruption, or the cost of obtaining new financing or maintaining existing financing;

            (c)          costs incurred to prevent or reduce loss or damage which otherwise may be incurred or suffered by a Third Party; or

            (d)          loss or damage set out above in paragraphs (a) to (c) that is incurred or suffered by or to a Third Party.

            Corporations Act means the Corporations Act 2001 (Cth).

            Credentials has the meaning in clause 7.3(c).

            Customer means the person referred to as the customer in the Order Form.

            Customer Data means all data, content, works and materials (whether audio, video or otherwise) uploaded or submitted to the Platform by the Customer or an Authorised User.

            Derivative Data means all newly created data (including any voice to text transcription, content and metadata) discovered, developed or otherwise coming into existence as a result of, for the purposes of, or in connection with, the Services or the Platform.

 

            Documentation means the manuals, user guides and other documents 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 on the Platform or through the Sonnant web page.  

 

            Dormant Customer Account means a Customer account that remains dormant or inactive for 90 days or more.

 

            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:

(a)          a step taken to enter into an arrangement between the party and its creditors;

(b)          a step taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a provisional liquidator, a liquidator, an administrator or other like person of the whole or part of that party's assets, operations or business;

(c)          the party cannot pay its debts as they become due; or

(d)          it ceases to carry on business or indicates it is likely to cease carrying on a business or a material part of its business.

 

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.

             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.

 

             Normal Business Hours means 9am to 5pm each Business Day.

             Order Form means the online order form accessible at https://www.sonnant.com/signup

             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.

 

             Platform means:

(a)          the downloadable and non-downloadable software operated by the Supplier and promoted by reference to the name ‘Sonnant’ or any other name updated from time to time, and used to provide a complete digitalised content media experience, based on content learning principles, through the provision of Artificial Intelligence (AI) and Machine Learning (ML) led and manual transcription, ML processing, search, captioning and translation capabilities to video and audio content;

(b)          the application (for example, front-end assets and back-end source code), database, system and server software, and all Intellectual Property contained in the software referred to in (a) above; and

(c)          any pre-release or beta functionality delivered through the Platform.

             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.

 

             Privacy Policy means the Supplier's privacy policy, available at [insert hyperlink] or such other web address notified by the 

             Supplier to the Customer from time to time, which is incorporated into this Agreement.

 

             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.

   

             Services means:

(a) granting access to the Platform and the Documentation to the Customer in accordance with this Agreement; and 

(b) any incidental services provided by the Supplier as it deems necessary to provide.

             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.

 

             Supplier means Sonnant Pty Ltd (ACN 622 867 636).

 

             Tax means any tax, levy, charge, impost, duty, fee, deduction, goods and services tax, compulsory loan or withholding, which  is assessed, levied, imposed or collected by any Government Agency, including any interest, fine, penalty, charge, fee or any other amount imposed on or in respect of any of the above, including GST.

 

             Term has the meaning in clause 2.

             Third Party means a party other than a party to this Agreement.

 

             Third Party Products means any software, product, service or material (including any related Intellectual Property) provided by a Third Party.

             User Licence has the meaning in clause 7.2(a).

 

1.2 Interpretation

             In the interpretation of this Agreement, unless stated otherwise:

       (a) a reference to a party is to a party to this Agreement;

       (b) a reference to a person includes a natural person or legal entity;

       (c) a reference to time is a reference to time in Melbourne, Victoria;

       (d) a reference to AUD, $A, dollar or $ is to Australian currency;

       (e) if an obligation must be performed or an event must occur on a day that is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day;

       (f) words such as 'including' or 'for example' do not limit the preceding words;

       (g) all grammatical forms of defined terms have a corresponding meaning;

       (h) a provision of this Agreement must not be construed against a party on the basis that party was responsible for preparing it; and

       (i) the main body of this Agreement will prevail to the extent of any inconsistency with any other part of this Agreement.

2. Term

            This Agreement commences on the Commencement Date and continues for the Subscription Term unless terminated in accordance with this Agreement (Term).

 

3. Customer obligations

3.1 Access to Platform

The Customer must provide information to the Supplier that is true, accurate and not misleading or deceptive. If such information changes, the Customer must promptly notify the Supplier at info@sonnant.com, or an alternate email address notified by the Supplier for this purpose.

At all times during the Term, the Customer must (at its cost):

(i)           obtain and maintain all hardware, software and communications equipment necessary for it and each Authorised User to access and use the Platform, and ensure that they comply with:

(A)         applicable specifications and guidelines set out in the Documentation; and

(B)         all reasonable security standards and any requirements otherwise communicated to the Customer from time to time;

(ii)          provide the Supplier with all necessary co-operation and access to its systems, data and Personnel as may be required by the Supplier to provide the Services;

(iii)         comply with all Relevant Laws;

(iv)         comply with all reasonable directions, policies and guidelines of the Supplier as notified from time to time;

(v)          perform all of its obligations in a timely and efficient manner;

(vi)         ensure that the Authorised Users use the Platform strictly in accordance with this Agreement. Any act or omission of an Authorised User is deemed an act or omission of the Customer; and

(vii)        immediately remove or exclude any Personal Information or sensitive data if requested by the owner, or the subject, of the  Personal Information or sensitive data, or if otherwise requested to do so by the Australian Information Commissioner and Privacy Commissioner.

3.2 Access restrictions

             During the Term, the Customer must not use the Platform to access, store, distribute or transmit:

(a)          any Malware; or

(b)          any material, data or content that:

(i)           is unlawful, unethical, harmful, threatening, defamatory, obscene, political, infringing, harassing or racially or ethnically offensive or a contravention of the rights of any Third Party;

(ii)          facilitates illegal activity;

(iii)         causes damage or injury to any person or property; or

(iv)         corrupts, degrades or disrupts the operation or functionality of the Platform.

3.3         Use restrictions

The Customer must not, and must not attempt to and must not assist any Third Party to:

(a)          adapt, alter, copy, create derivative works from, disassemble, display, distribute, download, duplicate, frame, mirror, modify, reduce to human readable form, republish, reverse compile, reverse engineer or transmit all or any portion of the Platform by any means;

(b)          infringe the Supplier's Intellectual Property;

(c)          build a product, service or platform which competes with the Platform;

(d)          assign, license, transfer any rights in, or otherwise commercially exploit, the Platform; or

(e)          engage in illegal behaviour or any the following:

(i)           unauthorised access to or use of data, services, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorisation of the owner of the system or network;

(ii)          interference with service to any user, host or network, including mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks;

(iii)         use of an Internet account or computer without the owner’s authorisation; and

(iv)         collect information by deceit, including Internet scamming, password robbery, phishing, security hole scanning and port scanning.

3.4 Special terms applicable to Customer Beta Program

(a) Fair Use.   During the Sonnant Beta program (“Beta”), you will receive unlimited fair use ("Fair Use") (Fair Use is subject to our unfettered discretion) of the Services.  We reserve the right to monitor usage, and if we determine over-use of the Services (high volume or archival use) , Sonnant may throttle or otherwise limit your use of the Services.

(b) Feedback.   During the Beta term, we will seek your feedback on problems you encounter and other feature of the Services that would be valuable to you.   You may provide this feedback through the Support menu item.

(c) End of Beta.   Sonnant will advise you at least 7 days before the Beta program ends.     At the completion of Beta, your account will be converted to a Free Trial account, providing an additional free 60 minutes of transcription.   You will then have the option of using the Service on a pay-as-you-go or subscriber basis.   Otherwise, your content will remain available in the Platform until your account becomes a Dormant Customer Account and will be handled as described in the remainder of these terms.

4. Supplier obligations

4.1. Service obligations and exclusions

(a)          During the Term, the Supplier must provide the Services to the Customer.

(b)          The obligation under clause 4.1(a) will not apply in the event of:

(i)           any non-conformance which is caused, or contributed to, by use of the Platform contrary to the Supplier's instructions or the terms of this Agreement;

(ii)          modification or alteration of the Platform by any party other than the Supplier;

(iii)         the unsuitability or malfunction of the Customer’s network, systems, computer hardware or software; or

(iv)         a Force Majeure Event.

4.2 Remedial action

(a)          In the event the Supplier fails to provide the Services in accordance with clause 4.1 and following notice from the Customer, the Supplier will use reasonable endeavours to:

(i)           correct any such non-conformance; or

(ii)          provide the Customer with an alternative means of accomplishing the desired outcome.

(b)          Notwithstanding the foregoing and subject to requirements of any Relevant Laws, the Supplier:

(i)           does not warrant that the Customer's use of the Platform will be uninterrupted, Malware free, including virus-free, or error-free, nor that the Services and the information obtained by the Customer through the Services, will meet its requirements, and the Customer must make its own assessment of the Platform’s fitness for purpose;

(ii)          is not responsible for any delays, delivery failures, or any other Loss resulting from the transfer of data or metadata over communications networks and facilities and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities or networks; and

(iii)         is not responsible for the reliability, accuracy or currency of any information or Customer Data and Derivative Data. The Customer is solely responsible for uploading or submitting to the Platform the most up-to-date information or Customer Data and Derivative Data. 

4.3 Support services

          The Supplier will provide the Customer with the Supplier's standard customer support services during Normal Business Hours in accordance with the Supplier's Support Services and Maintenance Policy in effect at the time those customer support services are provided.

4.4 General maintenance

         The Supplier will use reasonable endeavours to make the Platform accessible 24 hours a day, 7 days a week, except for:

        (a) planned maintenance carried out each Sunday between 2am and 6am AEST, or otherwise at times advised in advance by the  Supplier; and

(b) unscheduled maintenance which may need to be performed from time to time. The Supplier will, where practicable, use reasonable endeavours to conduct any unscheduled maintenance outside of Normal Business Hours.

4.5 Modification and discontinuance of the Service

(a)          The Supplier may add, modify or discontinue any functionality, feature or any other aspect of the Services, including in relation to the Platform, at its discretion and without further notice.

(b)          Where it is a material adverse change in the core functionality of the Services, then the Supplier may, at its sole discretion, notify the Customer by sending a notification via the Platform or to the Customer’s email address.

(c)          The Supplier will not be liable for any modification, suspension or discontinuation of any functionality, feature or any other aspect of the Services.

5. Third party providers

(a)          The Customer's access to the Platform may enable the Customer to use, access or otherwise integrate with Third Party Products.

(b)          The Supplier makes no representations and will have no liability or obligation whatsoever in relation to the Third Party Products.

(c)          The Supplier does not endorse, sponsor or approve any Third Party Products made available via the Platform. It is the Customer's sole responsibility to determine that specific products or services, introduced or used by the Customer, or by an Authorised User, meets the needs of its business or requirements and are suitable for the purposes for which they are used.

(d)          Any rights the Customer may have to access Third Party Products will be limited to the:

(i)           extent of the Supplier's ability to license such rights to the Customer; or

(ii)          relevant Third Party Product usage terms or licence.

6.Payment

6.1 Payment of Subscription Fees

(a)          In consideration for the Supplier's provision of the Services during the Term, the Customer must pay the Subscription Fees (and any other fees) in advance at or prior to the commencement of the Subscription Term, by the payment method agreed between the parties in the Order Form.

(b)          If GST or any equivalent value added tax (as applicable) is imposed on a supply made under, or in connection with, this Agreement, the recipient of the supply must pay the supplier an amount equal to the GST or any equivalent value added tax (as applicable) payable on the supply in addition to, and at the same time as, any consideration for the supply.

6.2 Fee increases

(a)          The Supplier may increase the Subscription Fees (and any other fees) at any time upon 30 days’ notice to the Customer, such increase to take effect following expiry of the then current Subscription Term.

(b)          If the Customer does not agree to a fee increase, the Customer may terminate this Agreement by notice to the Supplier no later than 14 days after the date the Customer received notice of the fee increases.  

6.3 Outstanding amounts

(a)          If the Customer fails to pay the Supplier the Subscription Fees (and any other fees) or any amount owing under this Agreement by the due date, without limiting any other remedies available to the Supplier, the Supplier may, in its discretion:

(i)           charge interest at the rate of 10% per annum, accruing daily and compounding monthly;

(ii)          immediately suspend the Services (without liability to the Customer) until all overdue amounts are paid in full; and / or

(iii)         terminate this Agreement.

(b)          The charging of interest is not a consent to late payment.

(c)          The Customer must pay the Supplier all costs incurred in recovering any outstanding amounts owing under this Agreement.

7. Intellectual Property and User Licences

7.1 General

(a)          Nothing in this Agreement assigns, transfers or grants any right, title or interest in or to a party's Intellectual Property, other than as expressly stated in this Agreement.

(b)          The Customer acknowledges and agrees that, notwithstanding anything else, all Intellectual Property subsisting in, or otherwise underlying, the Platform, the Documentation and the Aggregated Data, is owned by the Supplier.

(c)          The Customer must not submit, publish or upload any Customer Data and Derivative Data onto the Platform unless the Customer has the right to do so.

(d)          The Customer grants the Supplier permission to use and publish its name, logos and trade marks, together with reference to the fact that the Customer is a customer of the Supplier, in any medium whatsoever.

7.2 Licence to permit access by Authorised Users

(a)          The Supplier grants the Customer a non-exclusive, personal, non-transferable and non-sub-licensable licence to permit Authorised Users (subject to clause 7.2(b)) to access and use the:

(i) Platform; and

(ii) Documentation,

during the Term solely for the Customer's internal and ordinary business purposes (User Licence).

(b)          The quantity of User Licences granted to the Customer must be specified in the Order Form or otherwise agreed between the parties.

7.3 Usernames and passwords

(a)          Following registration of a new account, the Supplier will provide the Customer with a temporary password for the Authorised User who will take on the role as the Customer’s system administrator. This temporary password will be required to be changed on first login.

(b)          Additional Authorised User accounts may be created via the system administrator account. Temporary passwords created by the system administrator will also have to be changed on first login.

(c)          The username and passwords for all accounts (Credentials) must not be shared with any other person for any reason.

(d)          The Customer acknowledges that it is solely responsible for:

(i)           maintaining the confidentiality of the Credentials; and

(ii)          all access and use of the Platform that results from any person using the Credentials.

(e)          The Customer must implement security measures to ensure that no unauthorised person may gain access to the Platform using the Credentials or otherwise.

7.4 Access permissions

             The Customer:

(a)          is solely responsible for setting and maintaining appropriate access and publication permissions for each Authorised User; and

(b)          may revoke or change an Authorised User’s access and publication permissions at any time and for any reason via the Customer’s administrator account.

7.5 Audit

(a)          The Supplier or its Personnel may audit the Platform to verify the Customer's compliance with this Agreement.

(b)          If such audit reveals that any Credentials have been provided to any person who is not an Authorised User, then, without prejudice to the Supplier's other rights, the Customer must promptly disable such Credentials and the Supplier may terminate that User Licence.

8. Confidential Information

8.1. Obligation not to disclose Confidential Information

(a)          The Customer must keep the Confidential Information of the Supplier confidential, and not disclose it except:

(i)           to its Representatives for the purpose of performing its obligations under this Agreement;

(ii)          as required by law or a regulatory body (including a relevant stock exchange), court or governmental or administrative authority, subject to clause 8.2; 

(iii)         as permitted or required by the Supplier; or

(iv)         to its professional advisers engaged to provide legal, taxation or accounting advice, and to the extent necessary.

(b)         The Customer must comply with any direction of the Supplier to return, destroy or permanently delete all copies of the 

            Confidential Information (to the extent reasonably practicable), at any time, at the Customer's expense.

8.2 Disclosure

(a)          Any disclosure made under clause 8.1(a)(i) or 8.1(a)(iv) must be on terms no less restrictive than this Agreement.

(b)          The Customer must notify the Supplier prior to disclosing any information pursuant to clause 8.1(a)(ii), and provide the Supplier the opportunity to challenge the requirement or redact information not required to be disclosed.

8.3 Uncertainty

If there is any uncertainty as to whether any information is Confidential Information, that information must be treated as Confidential Information of the Supplier.

8.4 Survival

This clause 8 applies as long as the information remains Confidential Information.

9. Data

9.1 Licence for Customer Data and Derivative Data

(a)          The Customer retains or will be assigned ownership of the Customer Data and Derivative Data and will have sole responsibility for their legality, reliability, integrity, accuracy and quality.

(b)          The Customer grants the Supplier a worldwide, non-exclusive, royalty-free, perpetual, transferable licence to:

(i)           use, disclose, reproduce, store, distribute, publish, export, adapt, edit, translate and create Aggregated Data;

(ii)          use, disclose, reproduce, store, distribute, publish, export, adapt, edit, translate and produce derivative works from or copy Customer Data and Derivative Data,

 

for any lawful purpose, including for the purpose of:

 

(iii)         enabling the Supplier to perform its obligations and exercise its rights under this Agreement (including any maintenance calibration, diagnostic and troubleshooting); 

(iv)         using usage patterns, trends, and other statistical or behavioural data derived from use of the Platform for the purposes of providing, operating, maintaining, or improving the Services or any of the Supplier products and services;

(v)          sharing Customer Data and Derivative Data with a Third Party for the purposes of performing or improving the Services or providing insights and suggestions; and

(vi)         monitoring the performance of the Platform.

9.2 Back-Up Policy

(a)          The Supplier will back up Customer Data in accordance with good industry practice for data storage management.

(b)          The Supplier will not be responsible for any loss, destruction, alteration, corruption or disclosure of any Customer Data and Derivative Data caused, or contributed to, by an act or omission of the Customer or any Third Party.

9.3 Personal Information and other sensitive data

             The Customer warrants that, in relation to any Customer Data and Derivative Data comprising Personal Information or otherwise sensitive data:

(a)          it has been collected in accordance with its own privacy policy and applicable Privacy Laws; and

(b)          it has obtained all necessary Approvals and consents to grant the Supplier the licence in clause 9.1(b), or to make such information available to the Supplier for its use.

10. Liability

10.1 Non-excludable Obligations

(a)          To the extent that the Customer acquires goods or services from the Supplier as a consumer within the meaning of the Australian Consumer Law, the Customer may have certain rights and remedies (including rights in relation to consumer guarantees) that cannot be excluded, restricted or modified by agreement. 

(b)          Nothing in this Agreement operates to exclude, restrict or modify the application of any condition, warranty or provision implied by law, the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law or any other statute where to do so would:

(i)           contravene that statute; or

(ii)          cause any term of this Agreement to be void,

(Non-excludable Obligation).

10.2 Exclusion of liability

              Except in relation to Non-excludable Obligations:

(a)          the Supplier will not be liable to the Customer or any other person for any Consequential Loss for breach, or otherwise suffered as a result, of this Agreement; and

(b)          the aggregate maximum liability of the Supplier (including legal costs incurred in defending a Claim) arising from, or in connection with, this Agreement is limited to the Subscription Fees received by the Supplier in the 6 months preceding the Claim or event.

10.3 No warranties or guarantees

              Except in relation to Non-excludable Obligations:

(a)          all conditions, warranties, guarantees, rights, remedies, liabilities or other terms that may be implied or imposed by custom or law are expressly excluded under this Agreement; and

(b)          the Supplier makes no representations, warranties or guarantees in relation to the availability, continuity, reliability, accuracy, currency or security of the Platform.

11. Indemnity

             The Customer indemnifies, and must continue to indemnify, the Supplier against any liability incurred by the Supplier in respect of damage to property, death or personal injury or any Loss, arising from or in connection with the Customer, its Related Bodies Corporate or any Personnel of those entities doing any of the following:

(a)          breaching this Agreement;

(b)          breaching any Relevant Law;

(c)          infringing any Third Party's Intellectual Property;

(d)          uploading or transmitting the Customer Data and Derivative Data;

(e)          supplying any incomplete, false or misleading information; or

(f)           engaging in wilful misconduct, fraud, an unlawful act or omission or negligence,

             and any costs (including legal costs), claims, demands and expenses arising out of, or in connection with, any liability referred to in this clause 11.

12. Non-solicitation

(a)          During the Non-solicitation Term, the Customer and its Related Bodies Corporate must not hire, solicit or induce, or assist any Third Party in soliciting or inducing, any of the Supplier's employees to leave their employ.

(b)          For these purposes, Non-solicitation Term means 1 or more of the following periods, after the Term:

(i)           6 months, or if such period is unenforceable;

(ii)          3 months.

(c)          The Customer acknowledges that the restraint set out in this clause 12 is reasonable and necessary for the protection of the Supplier's proprietary and legitimate commercial interests.

(d)          The parties further agree that if any of the restraints are held to be void, but would otherwise be valid if part of their wording were deleted, the restriction will still apply, but with whatever deletion is necessary to make the restriction valid or effective.

13. Termination

13.1 Termination

(a)          Either party may terminate this Agreement or an Order Form (without any liability) at any time by giving the other party at least 30 days’ notice, with such termination to take effect at the end of the following billing cycle.

(b)          Where the Supplier terminates under clause 13.1(a), the Supplier shall refund the pro rata portion of any Subscription Fee that may have been paid by the Customer for the portion of the Service not provided to the Customer at the effective date of termination.

(c)          Either party may terminate this Agreement by giving notice  with immediate effect if the other party:

(i)           commits a breach of any of its material obligations under this Agreement that is not capable of remedy;

(ii)          commits a breach of any of its material obligations under this Agreement, and if the breach is capable of remedy, does not remedy that breach within 14 days after receipt of notice of the breach or any further time allowed by the non-defaulting party; or

(iii)         suffers an Insolvency Event (and the Corporations Act does not prevent the party from terminating).

(d)          Either party may terminate this Agreement by giving notice with immediate effect if a Force Majeure Event continues for more than 30 consecutive days.

(e)          With regards to Customers on any free (or entry level / basic) plan, the Supplier may terminate this Agreement (without any liability) at any time by giving the Customer at least 14 days’ notice, if the Customer account is, or has been, a Dormant Customer Account..

(f)           In relation to a Dormant Customer Account, the fact that the Supplier has not elected to terminate this Agreement in accordance with clause 13.1(e) does not imply or constitute a waiver of its rights, including the right to terminate at any time in the future.

13.2 Effect of termination

              Upon termination of this Agreement for any reason:

(a)          all licences and rights of access granted under this Agreement will immediately terminate;

(b)          the Customer must pay within 7 days any outstanding Subscription Fees and any other amounts due to the Supplier under this

             Agreement;

(c)          the Customer must immediately destroy, delete or return to the Supplier (at the Supplier's election) all Confidential Information in

             its possession, custody or control and, in the case of destruction, certify to the Supplier that it has done so; and

(d)          the Supplier may destroy, delete or dispose of any Customer Data and Derivative Data in its possession unless the Supplier receives, no later than 10 days after the effective date of the termination of this Agreement, a written request for the delivery to the Customer of the then most recent back-up of Customer Data and Derivative Data. The Supplier will use reasonable endeavours to deliver the back-up to the Customer within 30 days of its receipt of such request, provided that the Customer has, at that time, paid all Subscription Fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer will pay all reasonable expenses incurred by the Supplier in returning the Customer Data and Derivative Data.

14. Dispute resolution

(a)          Before commencing court or tribunal proceedings (except for interlocutory or interim relief), the parties must refer any dispute under or relating to this Agreement to a nominated representative of each party to endeavour to resolve the dispute within 30 days.

(b)          If the dispute is not resolved with this period, either party may initiate court or tribunal proceedings.

(c)          Each party must continue to perform its obligations under this Agreement during the dispute.

(d)          This clause may be used as a bar to legal proceedings commenced in connection with this Agreement in the event the dispute resolution process stipulated in this clause has not been followed.

15. Force Majeure Event

The Supplier will have no liability to the Customer or anyone else if the Supplier is prevented from, or delayed in, performing its obligations under this Agreement by a Force Majeure Event.

16. Notices

A notice, agreement, consent, direction, waiver, or similar given or required under this Agreement:

(a)          must be in writing, in English and signed by, or sent by email from, a person authorised by the sender;

(b)          must be delivered to the receiving party in person, by email or registered post to the receiving party's address for notices as agreed by the parties, or in the case of the Customer as otherwise set out in the Order Form; and

(c)          is deemed to be received by the receiving party:

(i)           if delivered in person, on delivery;

(ii)          if sent by email, when successfully transmitted, unless received after 5pm on a Business Day or any time on a non-Business Day, in which case, it is deemed received at 9am the next Business Day; or

(iii)         if posted, 5 Business Days (or 8 Business Days, if posted outside Australia) after the date of posting to the receiving party.

17. General

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).

No restraints

            This Agreement will not prevent the Supplier from:

(a)          entering into the same or similar agreements with Third Parties; or

(b)          independently developing, using, selling or licensing documentation, products and/or services which are the same or similar to

            those provided under this Agreement.

Approvals and consent

            Except as set out in this Agreement, a party may:

(a)          give or withhold approval or consent at that party’s discretion; and

(b)          give approval or consent subject to conditions.

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.

Assignment

(a)          The Customer may not assign or deal with this Agreement except with the prior consent of the Supplier. The Supplier is not required to give consent or justify the withholding of consent.

(b)          The Supplier may deal with any of its rights or obligations under this Agreement without the Customer's consent.

Severability 

             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.

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.

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.

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.

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.

Costs

          Each party must pay its own costs for the negotiation, preparation, execution and performance of this Agreement, unless otherwise set out in this Agreement.

Governing law and jurisdiction

(a)          This Agreement is governed by the laws in force in Victoria, Australia.

(b)          Each party irrevocably submits to the exclusive jurisdiction of courts exercising jurisdiction in Victoria, Australia and waives any right to claim that those courts are an inconvenient forum.

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