TERMS AND CONDITIONS
Inspection Manager is a software Application designed to assist, facilitate, and support people working in the Real Estate Industry.
These Terms set out the conditions on which Acutech Group Pty Limited of Suite A, Level 6, 140 William Street, Woolloomooloo NSW 2011 who is the approved Licensor (“Licensor”) of Inspection Manager agrees to provide access to Inspection Manager.
To install, log in, access, use or otherwise interact with the Inspection Manager Application (“Application”), it is a requirement that you read and agree to these Terms of Service as defined below. These Terms constitute an agreement and use of the Application is governed by its terms.
In consideration of accessing Inspection Manager, you acknowledge that you have read and agree to be bound by these Terms. If you do not agree, you must not download or use Inspection Manager. By using Inspection Manager, you warranty that you have read these Terms and agree to be bound.
|Application||means the Inspection Manager Application and the data accessible via the Application provided by the Licensor.|
|Australian Commercial Dispute Center
refers to the Mediation service located at 1 Castlereagh St, Sydney NSW 2000.
refers to the Users of the Licence granted access by the Licensee under this Agreement. Users can entail any branch or related department of the Licensee.
means a day on which banks are open for business in New South Wales, Australia, excluding a Saturday, Sunday or public holiday.
means the trade names, trade marks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as secured by such party from time to time.
means any documentation or information whether provided on paper, electronically, verbally, or otherwise and whether marked as confidential or otherwise, that relates to a party to this Agreement and that party’s personal, financial or business affairs or this Agreement. Confidential Information includes but is not limited to intellectual property, the product of any research, customer lists, financial information, and business plans.
means the Corporations Act 2001 (Cth).
means any and all data, including Analytical Data, results, conclusions, reports, and other information generated by or for the user resulting from the Application.
means a Party who is in Default as a result of a failure to fully and faithfully perform any obligations or duties under this Agreement.
means any dispute which arises out of or relates to:
|Event of Default||
means the other party is in serious breach of any of its material obligations under this Agreement and such breach is incapable of remedy or, if such breach is capable of remedy, the other party does not rectify such breach within 14 days after receiving a notice to do so.
means any government or any governmental, semi-governmental, administrative, fiscal, or judicial body, department, commission, authority, tribunal, agency or entity.
means A New Tax System (Goods and Services Tax) Act 1999 (Cth).
means the hosting services set out in the Schedule
means the happening of any of these events:
(a)the person dies or becomes mentally or physically incapable of managing his or her affairs or an order is applied for or made to place the assets and affairs of the person under administration pursuant to any law relating to mental health or under any administration;
(b)an order of bankruptcy or sequestration of the person’s estate; or
(c)a trustee in bankruptcy is appointed to the person’s estate or any agent (by whatever name called) is appointed in respect of that person or any of his or her assets.
In relation to a corporation:
(a)an order is made that the corporation is to be wound up;
(b)a liquidator, provisional liquidator, trustee, administrator, controller, receiver or receiver and manager is appointed in relation to the corporation or any of its assets or any action is taken for the appointment of such person;
(c)except to reconstruct or amalgamate while solvent pursuant to a Permitted Reconstruction, the corporation resolves to wind itself up or otherwise dissolves itself, or gives notice of intention to do so; or
(d)being unable or deemed unable to pay its debts as when they fall due under the Corporations Act or any other applicable law.being unable or deemed unable to pay its debts as when they fall due under the Corporations Act or any other applicable law.
|Intellectual Property Rights||
includes each of the following in Australia and throughout the world and for the duration of the rights:
(a)any patents, innovation patents, utility models, copyrights, registered or unregistered trade marks or service marks, trade names, brand names, domain names, indications of source or appellations of origin, eligible layout rights, plant variety rights, registered designs and commercial names and designations;
(b)any invention, discovery, trade secret, know-how, computer software and confidential, scientific, technical and product information;
(c)any other rights resulting from intellectual activity in the industrial, scientific, literary and artistic fields whether industrial, commercial, agricultural or extractive and whether dealing with manufactured or natural products.
(d)any other rights resulting from intellectual activity in the industrial, scientific, literary and artistic fields whether industrial, commercial, agricultural or extractive and whether dealing with manufactured or natural products.
(e)Any letters patent, deed of grant, certificate or document of title for any thing referred to in paragraphs (a), (b) or (c) of this definition and any medium in which any thing referred to in those paragraphs is stored or embodied.
(a)Commonwealth, State, Territory or local government legislation, including regulations, by laws, declarations, ministerial directions and other subordinate legislation;
(c)Government Agency requirement or authorisation (including conditions in respect of any authorisation); or
(d)mandatory code of conduct, writ, order, injunction, judgment, contract, agreement or deed.
means Acutech Group Pty Limited of Suite A, Level 6, 140 William Street, Woolloomooloo NSW 2011.
means the license fee referred in the Schedule.
means all data and information relating to the Licensee and the Licensee’s operations, facilities, clients, personnel, assets and programs in whatever form that information may exist and whether entered, stored, generated by or processed through the Application.
means persons who are actively concerned with the terms of this document and the use of the Application
means information or an opinion however stored, whether recorded in a material form or not, whether true or not true, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.
means the party receiving any Proprietary Information, whether such party is an individual or Company and whether such disclosure is received directly or through the Receiving Party’s employees or agents.
means a related body corporate as defined in the Corporations Act.
means for the purposes of the Licensee managing inspections and any information and data relating to those inspections.
has the same meaning as in the GST Act.
means a smart phone or similar device including iPhone, iPad or any device using the Android platform (a mobile operating system for mobile devices).
includes any document or record treated by the Commissioner of Taxation as a tax invoice or as a document entitling a recipient to an input tax credit.
|Terms of service||
is the rules by which one must agree to abide in order to use the Application and is governed by this Agreement and any other documents provided by the Licensor.
means to access, input information and operate the Application via the Licensor’s hosted system.
is an individual authorised by the Licensee to Use the Application.
means the Licensee.
The following rules of interpretation apply:
(a) A reference to a party includes, as the context requires, the party’s respective executors, administrators, successors and permitted assigns.
(b) A reference to a person includes any other entity recognised by law.
(c) Headings and indexes are only included for ease of reference and do not affect interpretation.
(d) A reference to any legislation or legislative provision includes any modifying, consolidating or replacing legislation or legislative provisions from time to time, and includes all regulations, rules and other statutory instruments issued under the legislation.
(e) A reference to a document (including these terms) is to that document as varied, novated, ratified or replaced from time to time.
(f) References to parties, clauses, schedules, annexures or exhibits are references to parties, clauses, schedules, annexures or exhibits to this Agreement unless otherwise stated.
(g) References to months and years mean calendar months and years.
(h) Words denoting the singular number include the plural, and vice versa.
(i) Words denoting one gender include the other gender or neuter, as the context requires.
(j) Where any word or phrase is given a defined meaning any other grammatical form of that word or phrase has a corresponding meaning.
(k) No rule of construction or interpretation applies to the disadvantage of a party because that party prepared this Agreement.
(l) A reference to “$” or “dollar” is to Australian currency.
(m) If the day on which any act, matter or thing is to be done under or pursuant to this Agreement is not a Business Day, that act, matter or thing may be done on the next Business Day.
All parties to this Agreement warranty to any and all other parties:
(a)Legally binding obligation: This Agreement constitutes a valid and legally binding obligation of the party in accordance with its Terms.
(b) Execution, delivery and performance: The execution, delivery and performance of this Agreement do not violate any existing law or regulation. Each party warranties that they are not in violation of any existing agreement, document or condition to which they are a party or which is binding upon the User or any of its assets.
(c) Authorisation: All consents, licences, approvals and authorisations of every Government Authority or third party required to be obtained by the User in connection with the execution, delivery and performance of this Agreement and the transactions contemplated by this Agreement have been obtained or effected and are valid and subsisting, and that the party has complied with each of them.
(d) No Event of Default: No event has occurred which constitutes an Event of Default or a potential Event of Default.
(e) Laws: The party has complied with all statutes and regulations relevant to it and the businesses carried on by it.
(f) Corporate power: The User has the power, and has taken all corporate and other action required, to enter into this Agreement and to authorise the execution and delivery of this Agreement and the performance of its obligations under this Agreement.
The Licence granted by this Agreement will become effective upon installation of the Application and will continue in effect until terminated in accordance with this Agreement.
The Licensor may at any time terminate the licence granted by this Agreement on 28 days’ notice.
5. GRANT OF LICENSE
On receipt of the Licence Fee, the Licensor grants to the Licensee a non-exclusive, non-transferable, royalty-free licence to Use the Application during the Term for the Specified Purpose only.
The Licensor may without prior notice to the Licensee limit or suspend access to the Application where the Licensor reasonably suspects that the Licensee is :
(a)using the Application for an unlawful or improper purpose; or
(b)in breach of this Agreement.
6. LICENSEE’S DATA
(a) The Licensee acknowledges and agrees that the Licensor will host and store the Licensee’s Data.
7. RESTRICTIONS AND CONDITIONS
7.1 Licence restrictions
The Licensee warranties and covenants that it will not:
(a)sell, market, transfer, lease, licence, rent, lend or otherwise dispose of, copy, reproduce, translate, adapt, vary, alter, merge, reproduce or otherwise duplicate all or any part of the Application without the express written consent of the Licensor;
(b)copy, reproduce, translate, adapt, vary, alter, merge or otherwise duplicate all or any part of the Application without the express written consent of the Licensor;
(c)reverse engineer, decompile, disassemble, reconfigure or otherwise attempt to discover the source code of the whole or any part of the Application;
(d)modify or alter the Application or merge all or any part of the Application with other software or applications;
(e)provide Hosting Services either directly or indirectly to any third party; or
(e)exploit Hosting Services other than as permitted under this Agreement.
The Licensee must comply with any access restrictions, security procedures and operational requirements that the Licensor may notify to the Licensee as may be required from time to time in relation to the Application or Hosting Services.
8. LICENSEE'S OBLIGATIONS AND ACKNOWLEDGEMENTS
The Licensee’s obligations are as follows:
(a)The Licensee must only use the Application in accordance with the terms of the Licence and as set out within this Agreement.
(b)The Licensee accepts responsibility for the acts or omissions of each User and any Authorised Representatives as if those acts or omissions were the Licensee’s acts or omissions.
(c)The Licensee indemnifies the Licensor against losses or damages suffered by the Licensor arising from any act or omission by a User or Authorised Representative that, if it was an act or omission of the Licensee, would be a breach of this Agreement.
(d)The Licensee is responsible for authorising access by any Users within the limits of the Licence, and for ensuring that there is no unauthorised use of the application. Any use of the Licence by an Authorised Representative of the Licensee will result in responsibility being attributed to the Licensee in ensuring that there that there is no unauthorised use of the application.
(e)The Licensee acknowledges that a Licence under this Agreement allows for more than one user per Supported Device.
(f)The Licensee must not and must not authorise any third party to:
(i)use the Application for any illegal, fraudulent or inappropriate purpose; and/or
(ii)reproduce, copy, download, scrape, store, publish, transmit, transfer, communicate, distribute, disseminate, sell, lend or otherwise use the Application or any part of it other than permitted under this Agreement; and/or
(iii)modify or make any alterations, additions or amendments to any part of the Application; and/or
(iv)make the application available to any person other than an authorised User; and/or
(v)reverse engineer, decompile, disassemble or otherwise attempt to discern the source code of the components of the Application or reproduce all or any portion of the components; and/or
(vi)remove, alter, circumvent or tamper with any trade marks, copyright notices, copyright protection devices, disclaimers or other legal notices; and/or
(vii)combine the whole or any part of the Application with any other software, data or material; and/or
(viii)store or use any part of the data accessible via the Application in an archival database or other searchable database.
(g)The Licensee must use bests efforts to take all reasonable steps to safeguard the Application.
(h)The Licensee must notify the Licensor immediately if the Licensee suspects that the Application is being used in an unauthorised manner.
The Licensee acknowledges and agrees to each of the following:
(a)the Licensor has the right to copy, use, manipulate or otherwise deal with any and all data (including Licensee’s Data) provided to it by the Licensee as part of the Licensee’s use of the Application, and the Licensee warrants that the Licensor’s use of the data pursuant to this clause does not infringe the rights of any third party and does not infringe any law; and
(b)the Application may be subject to technical limitations; and
(c)the Application and Hosting Services are not goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption; and
(d)the Application is provided on an as is and as available basis and the Licensor makes no warranties or guarantees in respect to the ability to ensure that the Application is at all times accessible for the Licensee’s data, content or the Application; and
(e)the Licensor expressly assumes no responsibility for, without limitation, backing up the Licensee’s Data or damage to the Licensee’s Data; and
(f)due to the nature of the Application, the Licensor does not promise that access to the Application will be continuous or fault-free; but will use its best endeavours to ensure continuity of service; and
(g)The Licensee is responsible for:
(i)the confidentiality and use of any User ID, log in, passwords, access numbers and account numbers (where applicable); and
(ii)all electronic communications and other information entered through or under the Application.
The Licensee must pay the Licensor the Licence Fee as consideration for the rights granted in this Agreement in accordance with the terms of this Agreement.
9.2Payment of monthly fees
Where the Licence fee is payable on a monthly basis, the Licence fee is payable on the first day of each month of the Term, one month in advance.
9.3Change of fees
The Licensor may during the Term of this Agreement amend the Licence Fee by providing the Licensee with 1 month’s prior written notice.
10. GOODS AND SERVICES TAX
10.1Exclusive of GST
All amounts agreed to be paid under this Agreement, being the consideration for the supply expressed in this Agreement, are exclusive of GST.
10.2Payment of GST
If the Licensor becomes liable for GST in respect of a supply made under this Agreement, the Licensee must pay to the Licensor an amount equivalent to the Licensor’s GST liability, at the same time as the payment is made involving the Licensor in GST liability.
If the Licensor is entitled to an input tax credit in relation to any amount recoverable from the Licensee under this clause the amount payable by the Licensee must be reduced by the amount of the input tax credit that the Licensee has received or claims and is entitled to receive.
In respect of each payment by the Licensee under this Agreement, the Licensor must deliver a tax invoice to the recipient.
11. SCOPE OF PARTIES’ OBLIGATIONS
Each party must:
(a)perform its obligations under this Agreement;
(b)bear its own costs of the obligations in relation to the administration of this Agreement;
(c)fully inform itself, examine any documents or information made available or identified by the other party and satisfy itself as to the correctness and sufficiency of the information which is necessary in order to perform its obligations under this Agreement;
(d)control and rectify defaults caused by that party which may arise under this Agreement; and
(e)manage those risks which are that party’s responsibility under this Agreement.
Any party may terminate this Agreement by giving notice to the other party if either of the following occurs:
Any accrued rights and remedies of a party survive termination or expiry of this Agreement.
If this Agreement is terminated under this Clause each of the following applies:
(a)the party issuing the notice of termination (Terminating Party) must use its reasonable endeavours to mitigate any damage flowing from the termination;
(b)the party receiving the notice of termination (Defaulting Party) must pay to the Terminating Party its costs, expenses, loss and damage flowing from the termination within 30 days of receiving a statement setting out the Terminating Party’s costs, expenses, loss and damage. For the avoidance of doubt, the Terminating Party may issue more than one statement; or
(c)the Defaulting Party must pay interest on all amounts outstanding under this Agreement, including any amount payable under this clause above, calculated daily at the applicable rate set out in the Supreme Court Rules 1970.
The parties acknowledge and agree that the provisions contained in this clause and do not merge on termination of this Agreement and continue in full force and effect.
13. REPRESENTATIONS AND WARRANTIES
The Licensor represents and warrants to the Licensee that as far as the Licensor is aware:
(a)it has the right to grant to the Licensee granted in Clause 5; and
(b)use of the Application by the Licensee in accordance with this Agreement will not infringe the intellectual property rights of any entity.
13.2Notice of breach
A party must notify the other party as soon as reasonably practicable after becoming aware of any breach of a representation or warranty.
14. LICENSEE’S INDEMNITY
The Licensee indemnifies the Licensor against any claim, action, damage, loss, liability, cost, charge, expense, outgoing or payment which the Licensor pays, suffers, incurs or is liable for in connection with:
(a) a breach of this Agreement or any negligent or otherwise wrongful act or omission of the Licensee or its Users, representatives, agents or employees;
(b) a claim brought or threatened against the Licensor by a third party that the use by the Licensee of the Application or the Hosting Services (other than in accordance with this Agreement) which infringes the Intellectual Property Rights of that third party;
(c) use by the Licensee of the Application for purposes other than the Specified Purpose;
(d) any of the Licensee’s Data electronically transmitted to the Licensor and any of the Licensee’s Data that is processed or generated by the Hosting Services; or
(e) any person accessing or using the Application or Hosting Services in breach of this Agreement.
15. LIMITATION OF LIABILITY OF THE LICENSOR
The User acknowledges that the aggregate liability of the Licensor in respect of any claim for loss or damage sustained by the Licensee or any third party under or in connection with this Agreement (whether such liability arises under statute, in contract or in tort including actions arising out for negligence, or otherwise) is limited to the total amount of the Licence Fees paid in the calendar year of the event giving rise to the claim.
The Licensor is not liable for any indirect, special or consequential loss or damage of any kind (including, without limitation, loss of profits, anticipated savings or business) sustained by the Licensee or any third party with respect to, arising from, or in connection with this Agreement.
Apart from any guarantee, condition or warranty implied by law which may not be excluded, restricted or modified, and any express representation or warranty in this Agreement, the Licensor makes no representations or warranties in relation to any goods or services provided under this Agreement.
Subject to this Clause the Licensor’s liability for any breach of a guarantee, condition or warranty implied by law which cannot be excluded is limited, in the case of goods, to any one or more of the following (at the Licensor’s option):
(a)replacing the goods or supplying equivalent goods;
(b)repairing the goods;
(c)paying the cost of replacing the goods or supplying equivalent goods; or
(d)paying the cost of repair the goods.
(e)in the case of services, to any one or more of the following (at the Licensor’s option):
(i)Supplying the services again; or
(ii)Paying the cost of supplying the services again.
(f)The operation of clause 15(e) is subject to the Australian Consumer Law.
16. INTELLECTUAL PROPERTY
16.1Rights and obligations
The Licensee acknowledge that the Licensor owns all right, title and interest in and to the Application, including without limitation all Intellectual Property Rights, and the Licensor Rights are protected by intellectual property laws.
The Licensee must not use any robot, spider, other automated device, or manual process to monitor any content from, hosted by or that is otherwise available using the Application.
The Licensor Rights include rights to the Application developed and provided by the Licensor, all software associated with the Application and the Brand Features (see below).
The Licensor Rights do not include third-party content (such as the Licensee’s Data) used as part of use of the Application.
16.2 Brand Features
Any use of the Licensor’s Brand Features by the Licensee must be only in connection with the Application and in compliance with the Agreement.
The Licensee must not alter any Brand Features or copyright notices that are posted by the Licensor on or in connection with the Application.
17.1 Each party must keep confidential and not use the Confidential Information provided to that party (Receiving Party) by or on behalf of another party (Disclosing Party) for any purpose other than a purpose required or contemplated by this Agreement. The Receiving Party must not disclose the Disclosing Party’s Confidential Information to any person except in any of the following circumstances:
(a)The prior written permission of the Disclosing Party has been obtained (which the Disclosing Party is not bound to give) and the Receiving Party has fully observed any conditions or limitations required as part of that grant of permission.
(b)The Disclosing Party discloses the Confidential Information on a ‘need to know’ basis to officers, employees, agents, contractors, and advisers engaged by the Receiving Party in good faith, and who have agreed to obligations in relation to that Confidential Information that are the same as the obligations of the Receiving Party.
(c)Subject to complying with this clause, the disclosure is required according to law.
The Receiving Party must keep all Confidential Information in a secure manner (as appropriate having regard to the medium in which that Confidential Information is recorded) to protect the Confidential Information from being accessed by unauthorised persons.
17.3Procedure for disclosure to 3rd party
If the Receiving Party is required to disclose Confidential Information pursuant to this agreement, the Receiving Party must, immediately on having notice of the requirement to disclose, give notice to the Disclosing Party. The Disclosing Party may, at its cost, obtain legal advice as to the extent to which the Receiving Party must disclose any of the Confidential Information, and any steps that that the Receiving Party may take to limit disclosure or protect the confidentiality of the Confidential Information. The Disclosing Party provide a copy of that legal advice to the Receiving Party. If so, the Receiving Party must act in accordance with that legal advice.
In relation to any Confidential Information disclosed by the Receiving Party to another person (whether permitted under this Agreement or otherwise) the following applies:
(a)The Receiving Party must ensure that the other person observes the obligations of this Agreement as if that other person is a party to this Agreement;
(b)The Receiving Party must use best endeavours to take reasonably appropriate legal action (whether seeking injunctions, claiming compensation, or otherwise, as appropriate) against any person who breaches the obligations referred to in this agreement.
The Receiving Party indemnifies the Disclosing Party for any losses, damages, expenses and costs that may be incurred by the Disclosing Party as a result of any breach by any person to whom disclosure is made pursuant to this Clause.
17.5Return of Confidential Information
On written demand by the Disclosing Party, the Receiving Party must, within a reasonable time do each of the following:
(a)return to the Disclosing Party all original documents and other materials relating to Confidential Information in the Receiving Party’s possession;
(b)destroy all copies of any materials containing Confidential Information in the Receiving Party’s possession or control.
Each party acknowledges that unauthorised use or disclosure of the Confidential Information may cause the Disclosing Party damage that cannot be adequately compensated by damages. Accordingly, each party agrees that in addition to any other rights or remedies the Disclosing Party may have, the Disclosing Party has the right to seek and obtain immediate injunctive relief from any actual or threatened breaches of this clause by the Receiving Party.
The obligations under this clause continues regardless of the continuation of any other business or other relationship between the parties.
The parties acknowledge that disclosure of any Confidential Information by the Disclosing Party to the Receiving Party constitutes adequate consideration for the obligations undertaken by the Receiving Party under this Agreement.
18.1Licensee’s warranty to the Licensor
The Licensee warrants to the Licensor each of the following:
(a) any Personal Information that the Licensee discloses to the Licensor as part of the use of the Application or otherwise has been collected in accordance with the law;
(b) the individual to whom the Personal Information relates has been made aware of the identity of the Licensor and of the other matters of which the Licensee is required to inform the person about whom it collects information;
(c) the disclosure of that Personal Information to, and its use by, the Licensor is authorised by or under the law.
In relation to any Personal Information disclosed to the Licensor by the Licensee, the Licensor must do each of the following:
(a) not disclose, store, transfer or handle the Personal Information except in accordance with the law;
(b) take all reasonable steps to ensure that the Personal Information is protected from misuse or loss, and from unauthorised access, modification or disclosure;
(c) take all reasonable steps to destroy or permanently de-identify Personal Information that is no longer needed for the purposes of this Agreement;
(d) co-operate with any reasonable request or direction of the Licensee makes which relates to the protection of any Personal Information or the exercise of the functions of the Privacy Commissioner;
(e) ensure that access to the Personal Information is limited to those of its employees and contractors who are required to access that information for the purposes of this Agreement.
(f) Comply with any reasonable direction of the Licensee in relation to a complaint concerning privacy received by a party.
19. DISPUTE RESOLUTION
If a Dispute arises between any parties in relation to this Agreement the following procedure applies:
(a)A party may give another party a notice of the Dispute, and the Dispute must be dealt with in accordance with the procedure set out in this Clause
(b)A party must not commence legal proceedings (except proceedings seeking interlocutory relief) in respect of a Dispute unless the Dispute has been referred for resolution in accordance with this clause.
(c)A party must not oppose any application for a stay of any legal proceedings that may be issued in respect of a Dispute pending the completion or termination of the procedure set out in this clause.
19.2Initial Period for Resolution
If a Dispute is notified pursuant to this clause, the Dispute must immediately be referred to the parties’ respective senior management. Those representatives must endeavour to resolve the Dispute as soon as possible and in any event within five (5) Business Days (or other period as agreed).
19.3Referral to Mediation
Unless otherwise agreed by the parties, any Dispute that cannot be settled by negotiation between the parties or their representatives in accordance with Clause 19 must be submitted to mediation. A Dispute submitted to mediation must be dealt with in the following manner:
(a)The parties in dispute agree to endeavour in good faith to settle the Dispute by mediation administered by the Australian Commercial Disputes Centre (“ACDC”) before having recourse to litigation.
(b)The mediation must be conducted in accordance with ACDC Mediation Guidelines that exist as at the date of the Dispute which set out the procedures to be adopted, the process of selection of the mediator and the costs involved and the terms of those guidelines are incorporated in this Agreement.
(c)The mediator assists the parties to resolve the dispute.
(d)All parties may be represented by a qualified legal practitioner at the mediation.
(e)Any determination of the mediator is not to be binding on the parties.
Notwithstanding the existence of a Dispute (including the referral of the Dispute to mediation), each party must continue to perform its obligations under this Agreement.
The parties must hold confidential, unless otherwise required by law or at the direction of a court of competent jurisdiction, all information relating to the subject matter of the Dispute that is disclosed during or for the purposes of dispute resolution. The parties acknowledge that the purpose of any exchange of information or documents or the making of any offer of settlement pursuant to this procedure is to attempt to settle the Dispute between the parties. No party may use any information or documents obtained through the dispute resolution process for any purpose other than an attempt to settle a Dispute between the parties.
20.1Method of Communication
All notices, requests, applications and consents required or permitted to be given by one party to another party must be in writing, addressed as set out in this Clause.
Delivery of a notice is effected by either of the following methods:
(a)Delivered to that party’s address as set out below.
(b)Transmitted by facsimile or email transmission to that party’s address.
20.2Time of Receipt
A notice, request, application or consent given to a party under clause 21.1 is deemed to have been received in the following circumstances:
(a)If delivered to a party’s address on a Business Day, on the day of delivery, otherwise on the next Business Day.
(b)If delivered by prepaid post in Australia, on the second Business Day after the date of posting.
(c)If transmitted by facsimile and a correct and complete transmission report is received, if the transmission report is received on a Business Day, at the time the transmission report is received, otherwise at the commencement of the next Business Day.
(d)if transmitted by email, at the time the transmission is completed if the sender of the email does not receive a failure of delivery notice.
20.3Address, facsimile and email of Parties
For the purpose of Clause 21, the address, facsimile and email of a party is the address, facsimile and email as notified by that party to the other party from time to time.
20.4Authorised Representative Communication
Any notice, request or any other communication from any Authorised Representative of the Licensee is to be to directed toward the Licensee and not the Licensor. This does not extend to the requirement of any application or technical support which only the Licensor can provide.
(a)Any consent or approval referred to in, or required under, this Agreement from any party may be given or withheld, or given subject to any conditions, as that party in its absolute discretion thinks fit.
(b)Any consent or approval referred to in, or required under, this Agreement from any party may not be unreasonably withheld, or given subject to any unreasonable conditions.
21.1Governing law and jurisdiction
The law in force in New South Wales governs this Agreement. The parties submit to the non-exclusive jurisdiction of the courts of New South Wales and any courts that may hear appeals from those courts in respect of any proceedings in connection with this Agreement.
Each party irrevocably waives any objection it may now or in the future have to the venue of any proceedings, and any claim it may now or in the future have that any proceedings have been brought in an inconvenient forum where that venue falls within New South Wales.
21.2Joint and several liability
Every covenant or provision in this Agreement applying to or binding, or a right conferred on, more than one person binds or benefits them jointly and each of them severally.
Subject to any other clause, this Agreement may only be amended or supplemented in writing signed by the parties.
This Agreement may be executed in any number of counterparts and all those counterparts taken together constitute one and the same instrument. Execution of facsimile counterparts, and facsimile copies of executed counterparts, is sufficient for this purpose.
The Licensee must not assign or novate any right or obligation under this Agreement without the other Licensor’s prior written consent.
The non-exercise of or delay in exercising any power or right of a party does not operate as a waiver of that power or right, nor does any single exercise of a power or right preclude any other or further exercise of it or the exercise of any other power or right. A power or right may only be waived in writing, signed by the party to be bound by the waiver.
Each party must do, sign and deliver and must procure that each of its employees and agents does, signs, and delivers, all acts, things and documents reasonably required of it by notice from another party to effectively carry out and give full effect to this Agreement and the rights and obligations of the parties under it.
This Agreement and any annexures is the entire agreement of the parties on the subject matter. The only enforceable obligations and liabilities of the parties in relation to the subject matter are those that arise out of this Agreement.
All representations, communications and prior agreements in relation to the subject matter are merged in and superseded by this Agreement.
If any part of this Agreement is void or unenforceable in any jurisdiction, then for the purposes of that jurisdiction if possible, that part is to be read down to be valid and enforceable.
If any part of this Agreement is void and severable, but does not go to the essence of the Agreement, that part will be severed from this Agreement and the rest of this Agreement continues to have full force and effect to give effect to the intentions of the parties.
Each party must bear their respective costs and expenses, including legal costs, in obtaining relevant approvals and consents, negotiations and the execution of this Agreement, and all other necessary documents in relation to the transaction.
Unless provided for in any other manner, the time for a party to comply with an obligation is of the essence.
21.12Independent Legal Advice
Each party to this Agreement acknowledges that they have been given an opportunity to seek independent legal advice with respect to the terms of this Agreement prior to its execution and have been advised to do and understands the terms, rights and obligations under this Agreement.
The Licensor will provide Use of the Application 24 hours a day, 7 days a week, 52 weeks of the year basis, subject to any pre arranged scheduled or emergency downtime and subject to network availability. Reasonable notice will be provided to the Licensee if the Licensor schedules any downtime.
Monthly Licence fees:
In relation to fees for the usage of the Application, our pricing policy incorporates two fee structures respectively in accordance with date of sign up to our product.
If you licensed the Application prior to the March 1 2018. You are entitled to 12 months under the following licensing fees from the end of your free trial:
|Plan Name||Portfolio Size||No. of Devices||Allowed Storage||IM Essentials (incGST)||IM Premium (incGST)|
|Read Only||N/A||0||N/A||10% of plan price||10% of plan price|
All contract terms are 12 months unless otherwise specified on the application form signed by the client at time of signup.
Cancellation fees are calculated as being the monthly fee multiplied by the remaining time left in the contracted term. If the contracted term expires, 30 days’ notice is required for cancellation and is payable. If Continued access to your Inspection Manager Data is required, Read Only Access is available on a month to month billing arrangement, at 10% of your plan price.