1 Parties and agreement

1.1 This Agreement is between you, the person or entity using the SaaS Services (you or your) and Curio Group Pty Ltd ABN 74 602 918 301, its successors and assignees (we, us or our) and collectively the Parties.

1.2 This Agreement forms the agreement under which we provide you with the SaaS Services. Please read this Agreement carefully. If you have any questions, please contact us using the contact details before accessing the Site.

2 SaaS Services

2.1 You have requested the SaaS Services. We will supply the SaaS Services to you as set out in this Agreement.

2.2 This Agreement is made up of these terms and conditions and any other terms set out on the Site (Agreement).

3 Acceptance

3.1 You accept this Agreement by:

(a) confirming by email that you accept this Agreement;

(b) confirming that you accept this Agreement via the platforms or applications through which we provide this Agreement to you, including the Site;

(c) making part or full payment of the Fees; or

(d) clicking a box indicating acceptance.

3.2 By accepting this Agreement, you warrant to us that:

(a) you have reviewed this Agreement, including our Privacy Policy, available on the Site and you understands them and will use the SaaS Services in accordance with them;

(b) you have the legal capacity to enter into a legally binding agreement;

(c) you have the authority to act on behalf of any person or entity for whom you are using the SaaS Services and you are deemed to have agreed to this Agreement on behalf of any entity for whom you use the SaaS Services; and

(d) you have all hardware, software and services which are necessary to access and use the SaaS Services.

4 Term

This Agreement commences on the date on which we provide you with an Account until the date on which your Account is terminated in accordance with this Agreement (Agreement Term).

5 Restrictions and responsibilities

5.1 Except as otherwise permitted by the Copyright Act 1968 (Cth) or agreed to in writing by Curio Group Pty Ltd, you must not reverse compile, disassemble, remove, release, disclose, reveal, copy, extract, modify or otherwise reverse engineer all or any part of the SaaS Services or any software, documentation or data related to the SaaS Services.

5.2 With respect to any SaaS Services that is distributed or provided to you for use on your premises or devices, we hereby grants you a non-exclusive, non-transferable, non-sub-licensable license to use the SaaS Services during the Term only in connection with the SaaS Services.

5.3 You represent, covenant, and warrant that you will use the SaaS Services only in compliance with our standard published policies then in effect (the “Policy”) and all applicable laws and regulations.

5.4 You hereby agree to indemnify and hold harmless Curio Group Pty Ltd against any damages, losses, liabilities, settlements and expenses (including without limitation costs and legal fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from you’s use of SaaS Services. Although we havwe no obligation to monitor your use of the SaaS Services, we may do so and may prohibit any use of the SaaS Services it believes may be (or alleged to be) in violation of the foregoing.

5.5 You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the SaaS Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). You shall also be responsible for maintaining the security of the Equipment, your account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of your account or the Equipment with or without your knowledge or consent.

6 Accounts

6.1 We may create an account for you (Account), in order for you and your Authorised Users to access and use the SaaS Services. You must ensure that any information you provide to us, or we request from you as part of the creation process is complete and accurate.

6.2 You are the Account owner and regardless of any change in any contact details, you will remain responsible for your Account as set out in this Agreement. If you wish to change the Account owner, you must provide us with a written request to transfer the ownership of the Account to the incoming party, which must also include the incoming party’s written consent to take over full responsibility for the Account in a form acceptable to us.

6.3 We will provide you with certain Account details (such as usernames and passwords) when we create an Account for you. It is your responsibility to keep your Account details confidential. You are responsible for all activity on your Account, including activity by Authorised Users and for ensuring that any activities on your Account complies with this Agreement.

6.4 We are not responsible for the management or administration of your Account or your Authorised Users.

7 Licence and restrictions on use

7.1 Subject to the payment of any applicable Fees, we grant you a non-exclusive, non-transferable (except with our written permission), non-sublicensable (except as otherwise permitted under this Agreement), personal and revocable licence to access and use the SaaS Services for the Agreement Term (Licence).

7.2 You must not (and must ensure your Authorised Users do not) access or use the SaaS Services except as permitted by the Licence and you must not permit any other person to:

(a) use the SaaS Services in any way which is in breach of any applicable Laws or which infringes any person's rights, including Intellectual Property rights;

(b) use the SaaS Services to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted;

(c) use the SaaS Services in any way that damages, interferes with or interrupts the supply of the SaaS Services;

(d) introduce malicious programs into our hardware and software or Systems, including viruses, worms, trojan horses and e-mail bombs;

(e) reveal your Account’s password to others or allow others to use your Account (other than Authorised Users);

(f) use the SaaS Services to carry out security breaches or disruptions of a network. Security breaches include accessing data where you is not the intended recipient or logging into a server or account that you is not expressly authorised to access or corrupting any data (including network sniffing/monitoring, pinged floods, packet spoofing, denial of service and forged routing information for malicious purposes);

(g) use any program/script/command, or send messages of any kind, with the intent to interfere with, or disable, any person’s use of the SaaS Services;

(h) if applicable, send any form of harassment via email, or any other form of messaging, whether through language, frequency, or size of messages or use the SaaS Services in breach of any person’s privacy (such as by way of identity theft or “phishing”); or

(i) use the SaaS Services to circumvent user authentication or security of any of our networks, accounts or hosts or those of our members or suppliers.

7.3 For us to provide the SaaS Services to you, you must promptly obtain and provide to us any required licences, approvals or consents necessary for our performance of the SaaS Services.

8 Authorised Users

8.1 If set out on the Site, you agree that the Licence permits you to access and use the SaaS Services in accordance with the number of Authorised Users, as set out on the Site.

8.2 You may, at any time increase the number of Authorised Users by requesting the increase by email and we will apply new fees which will be applicable as of the effective date of the increase of the number of Authorised Users.

9 Third Parties

9.1 You acknowledge and agree that:

(a) the provision of the SaaS Services may be contingent on, or impacted by, third parties, other customers’ use of our services, suppliers, other subcontractors (Third Party Inputs); and

(b) despite anything to the contrary, to the maximum extent permitted by law, we will not be responsible, and will have no Liability, for any default or breach of this Agreement or law, if such default or breach was caused or contributed to by any Third Party Inputs.

9.2 You acknowledge that the SaaS Services include certain optional functionality that may interface or interoperate with third party software or services.

9.3 To the extent that you choose to use such functionality and they are not a part of the SaaS Services, Customer is responsible for:

(a) the purchase of;

(b) the requirements; and

(c) the licensing obligations, related to the applicable third party software and services.

9.4 It is your responsibility to ensure these requirements are met in order for you to benefit from the specific functionality made available to you.

10 Support Services

We will provide you with technical support services as set out on the Site or as otherwise agreed between the Parties.

11 Privacy

11.1 You are responsible for the collection, use, storage and otherwise dealing with Personal Information related to your business and all matters relating to the Customer Data.

11.2 You must and must ensure that your Personnel and Authorised Users comply with the requirements of the Privacy Act in respect of all Personal Information collected, used, stored or otherwise dealt with under or in connection with this Agreement.

11.3 Without limiting this clause 11, you must:

(a) notify Authorised Users, Personnel, or other natural persons from whom Personal Information is collected about any matter prescribed by the Privacy Act in relation to the collection, use and storage of their Personal Information;

(b) ensure that any Personal Information transferred to us is complete, accurate and up to date; and

(c) notify us immediately upon becoming aware of any breach of the Privacy Act that may be related to the use of the Personal Information under this Agreement.

11.4 Without limiting this clause 11, you may only disclose Personal Information in its control to us if:

(a) you are authorised by the Privacy Act to collect the Personal Information and to use or disclose it in the manner required by this Agreement;

(b) you have informed the individual to whom the Personal Information relates, that it might be necessary for you to disclose their Personal Information to third parties and you have obtained their consent to do so; and

(c) where any Personal Information is Sensitive Information, you have obtained the specific consent to that disclosure from the individual to whom the Sensitive Information relates.

12 Fees and payment

12.1 You must pay us any Fees and any other amounts payable to us under this Agreement in accordance with the payment terms set out on the Site (Payment Terms).

12.2 If any payment has not been made in accordance with the Payment Terms, we may (in our absolute discretion):

(a) immediately cease or suspend the provision of the SaaS Services, and recover as a debt due and immediately payable from you any additional costs of doing so;

(b) charge interest at a rate equal to the Reserve Bank of Australia’s cash rate from time to time plus 5% per month, calculated daily and compounding monthly, on any such amounts unpaid after the due date; and

(c) engage debt collection services and/or commence legal proceedings in relation to any such amounts.

12.3 If you rectify such non-payment after the SaaS Services have been suspended, then we will recommence the provision of the SaaS Services as soon as reasonably practicable.

12.4 You must pay us the Fees and any other amount payable to us under this Agreement, without set off or delay, via bank transfer or any other payment method set out on the Site.

12.5 The Fees are subject to change upon 30 days’ notice from us to you and will apply to the next billing cycle. Such notice may be provided at any time by posting the changes on the Site, via email or via a notification to your Account.

13 GST:

13.1 The terms “adjustment event”, “consideration”, “GST”, “input tax credit”, “recipient”, “supplier”, “supply”, “taxable supply” and “tax invoice” each has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

13.2 If GST is payable on any supply made under this Agreement, the recipient of the supply must pay an amount equal to the GST payable on the supply. That amount must be paid at the same time that the consideration is to be provided under this Agreement and must be paid in addition to the consideration expressed elsewhere in this Agreement, unless it is expressed to be inclusive of GST. The recipient is not required to pay any GST until the supplier issues a tax invoice for the supply.

13.3 If an adjustment event arises in respect of any supply made under this Agreement, a corresponding adjustment must be made between the supplier and the recipient in respect of any amount paid by the recipient under this clause, an adjustment note issued (if required), and any payments to give effect to the adjustment must be made.

13.4 If the recipient is required under this Agreement to pay for or reimburse an expense or outgoing of the supplier, or is required to make a payment under an indemnity in respect of an expense or outgoing of the supplier, the amount to be paid by the recipient is to be reduced by the amount of any input tax credit in respect of that expense or outgoing that the supplier is entitled to.

14 Intellectual Property Rights

14.1 All Intellectual Property in the Software, SaaS Services and all Intellectual Property developed, adapted, modified or created by us or our Personnel (including in connection with this Agreement, the Software and the SaaS Services and any machine learning algorithms output from the SaaS Services) is and will remain owned exclusively by us or our third party service providers.

14.2 You must not whether directly or indirectly, without our prior written consent:

(a) copy or use, in whole or in part, any of our Intellectual Property;

(b) reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any of our Intellectual Property to any third party;

(c) reverse assemble, reverse engineer, reverse compile or enhance the SaaS Services;

(d) attempt to discover the source code or object code or underlying structures, ideas, know how or algorithms in relation to the SaaS Services, the data or documentation;

(e) breach any Intellectual Property Rights connected with the Software or the SaaS Services, including altering or modifying any of our Intellectual Property;

(f) cause any of our Intellectual Property to be framed or embedded in another website; or create derivative works from any of our Intellectual Property;

(g) resell, assign, transfer, distribute or make available the SaaS Services to third parties;

(h) “frame”, “mirror” or serve any of the SaaS Services on any web server or other computer server over the Internet or any other network; and

(i) alter, remove or tamper with any trademarks, any patent or copyright notices, any confidentiality legend or notice, any numbers or any other means of identification used on or in relation to the SaaS Services or Software.

14.3 Despite anything to the contrary in this Agreement or elsewhere, we may monitor, analyse and compile statistical and performance information based on and/or related to your use of the SaaS Services, in an aggregated and anonymised format (Analytics). You agree that we may make such Analytics publicly available, provided that it:

(a) does not contain identifying information; and

(b) is not compiled using a sample size small enough to make the underlying Customer Data identifiable.

14.4 We and our licensors own all right, title and interest in and to the Analytics and all related software, technology, documentation and content provided in connection with the Analytics, including all Intellectual Property rights in the foregoing.

14.5 As between us and you, all Customer Data that you enter into the SaaS Services or create using the SaaS services is our property. Upon termination or cease of your engagement with us, all data created or entered will belong with us and is not transferable.

14.6 You acknowledge and agree that we may copy, transmit, sell, store and back-up or otherwise access the Customer Data during and after the Agreement Term to:

(a) supply the SaaS Services to you (including to enable you and your Personnel to access and use the SaaS Services);

(b) diagnose problems with the SaaS Services;

(c) enhance and otherwise modify the SaaS Services; and

(d) develop other services, provided we de-identify the Customer Data, as reasonably required to perform our obligations under this Agreement.

14.7 You must, at all times, ensure the integrity of the Customer Data and that your use of the Customer Data is compliant with all Laws.

14.8 You must ensure that all data that you enter, review, manage is accurate to the best of your knowledge

14.9 You represent and warrant that:

(i) you have obtained all necessary rights, releases and permissions to provide all your Customer Data to us and to grant the rights granted to us in this Agreement;

(ii) the Customer Data is accurate and complete;

(iii) the Customer Data (and its transfer to and use by us as authorised by you) under this Agreement does not violate any Laws (including those relating to export control and electronic communications) or rights of any third party, including any Intellectual Property rights, rights of privacy, or rights of publicity; and

(iv) any use, collection and disclosure authorised in this Agreement is not inconsistent with the terms of any applicable privacy policies.

14.10 We assume no responsibility or Liability for the Customer Data. You are solely responsible for the Customer Data and the consequences of using, disclosing, storing or transmitting it.

14.11 You acknowledge and agree that the operation of the SaaS Services is reliant on the accuracy of the Customer Data, and the provision of inaccurate or incomplete Customer Data by you may affect the output and operation of the SaaS Services.

15 Liability

15.1 Despite anything to the contrary, to the maximum extent permitted by law:

(a) our maximum aggregate Liability arising from or in connection with this Agreement (including the SaaS Services or the subject matter of this Agreement) will be limited to, and must not exceed in the aggregate for all claims the total amount of Fees you paid to us in the 12 month period directly preceding the date on which such Liability arose; and

(b) we will not be liable to you for any Consequential Loss, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.

15.2 Despite anything to the contrary, to the maximum extent permitted by law, we will have no Liability, and you waive and release us from and against, all Liability (whether under statute, contract, negligence or other tort, indemnity, or otherwise) arising from or in connection with any:

(a) loss of, or damage to, any property or any injury to or loss to any person;

(b) failure or delay in providing the SaaS Services;

(c) breach of this Agreement or any Laws; or

(d) the Computing Environment, where caused or contributed to by any:

(e) Force Majeure Event;

(f) a fault, defect, error or omission in the Computing Environment or Customer Data; or

(g) act or omission by you, your related parties, Authorised Users, Personnel or any third party (including customers, end users, suppliers, providers or subcontractors), and, in any event, any error, omission or lack of suitability (or the absence of, or reduction in, any anticipated result, outcome or benefit) with respect to the SaaS Services.

15.3 Certain legislation, including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth), and similar consumer protection Laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of our services which cannot be excluded, restricted or modified (Statutory Rights). Nothing in this Agreement attempts to exclude, restrict or modify your Statutory Rights as a consumer under the ACL. Any and all other warranties or conditions which are not guaranteed by the ACL are expressly excluded where permitted, except to the extent such warranties and conditions are fully expressed in this Agreement.

15.4 You acknowledge and agree that:

(a) you are responsible for all users using the SaaS Services, including your Personnel and any Authorised Users; and

(b) you use the SaaS Services and any associated programs and files at your own risk;

(c) the technical processing and transmission of the SaaS Services, including Customer Data, may be transferred unencrypted and involves:

(i) transmissions over various networks; and

(ii) changes to conform and adapt to technical requirements of connecting networks or devices;

(d) we may use third party service providers to host the SaaS Services. If the providers of third party applications or services cease to make their services or programs available on reasonable terms, we may cease providing any affected features without Liability or entitling you to any refund, credit, or other compensation;

(e) the SaaS Services may use third party products, facilities or services. we do not make any warranty or representation in respect of the third party products, facilities or services;

(f) we do not guarantee that any file or program available for download and/or execution from or via the SaaS Services is free from viruses or other conditions which could damage or interfere with data, hardware or software with which it might be used;

(g) we are not responsible for the integrity or existence of any data on the Computing Environment, network or any device controlled by you or your Authorised Users; and

(h) we may pursue any available equitable or other remedy against you if you breach any provision of this Agreement.

16 Termination

16.1 The Parties may terminate this Agreement by a mutually signed agreement.

16.2 To the extent permitted by law, either Party may terminate this Agreement, if the other Party:

(a) has breached a material term of this Agreement and has failed to remedy such breach within 20 Business Days of receiving notice to do so, subject to any other express right of termination;

(b) ceases operation without a successor; or

(c) is subject to an Insolvency Event.

16.3 We may terminate this Agreement by providing you with five Business Days’ notice, in our sole discretion, if you fail to pay any amounts owing to us within 30 days of the due date.

16.4 On termination of this Agreement:

(a) you must cease using the SaaS Services and we will cease to provide the SaaS Services;

(b) you agree that any payments made are not refundable;

(c) you must pay for all SaaS Services provided under this Agreement including SaaS Services which have been performed and have not yet been paid by you, and all other amounts due and payable under this Agreement, including under an indemnity, within 5 Business Days of termination;

(d) you must promptly return (where possible) or delete or destroy (where not possible to return), our Confidential Information and Intellectual Property, and/or documents containing or relating to our Confidential Information and Intellectual Property;

(e) we must promptly return (where possible) or delete or destroy (where not possible to return), your Confidential Information and Intellectual Property, and/or documents containing or relating to your Confidential Information and Intellectual Property unless we are required by Law or regulatory requirements to retain such information;

(f) for the avoidance of doubt, any provisions of this Agreement that by their nature survive the termination of this Agreement will remain in force after this Agreement Term; and

(g) we may remove Customer Data within one month of the date of termination or expiry of this Agreement.

16.5 you must, within 3 months of the date of termination or expiry of this Agreement, copy all Customer Data and we will allow you access to the SaaS Services during this time solely for that purpose. After this time, we will be entitled to permanently delete all Customer Data.

16.6 On termination of this Agreement, we may offer to provide you with disengagement support services at our then current rates, and such disengagement support services must be agreed in writing by the Parties.

16.7 The accrued rights, obligations and remedies of the Parties are not affected by the termination of this Agreement.

17 General Warranties

17.1 We warrant and agree that:

(a) we are properly constituted and have the right and authority to enter into this Agreement;

(b) we will provide the SaaS Services in accordance with all applicable Laws; and

(c) we will use reasonable effort to ensure all of our obligations under this Agreement will be carried out:

(i) by suitably competent and trained Personnel; and

(ii) in an efficient and professional manner.

17.2 You warrant and agree that:

(a) there are no legal restrictions preventing you from agreeing to this Agreement;

(b) you are not subject to an Insolvency Event;

(c) you will cooperate with us and provide us with all assistance, resources, data, people, information, facilities, access and documentation that is reasonably necessary to enable us to perform the SaaS Services and as otherwise requested by us, from time to time, and in a timely manner;

(d) all information and documentation that you provides to us in connection with this Agreement is true, correct and complete and that we will rely on such information and documentation in order to provide the SaaS Services;

(e) you will inform us if you have reasonable concerns relating to our provision of the SaaS Services under this Agreement, with the aim that the Parties will use all reasonable efforts to resolve your concerns;

(f) you are responsible for obtaining any consents, licences, authorities and permissions from other parties necessary for the SaaS Services to be provided in accordance with this Agreement, at your cost, and for providing us with the necessary consents, licences, authorities and permissions;

(g) you will maintain the confidentiality and security of any of your Account details or passwords;

(h) if applicable, you hold a valid ABN which has been advised to us; and

(i) if applicable, you are registered for GST purposes.

18 Confidential Information

18.1 Each Party (Recipient) must keep confidential, and not disclose, any Confidential Information of the other Party (Discloser) except:

(a) where permitted by this Agreement;

(b) with the prior written consent of the Discloser;

(c) where the Confidential Information is received from a third party, except where there has been a breach of confidence;

(d) on a confidential, “needs to know” basis to the Recipient’s Personnel, auditors, insurers, agents and professional advisors; or

(e) where the Recipient is compelled to do so by Law, provided that it gives the other Party written notice prior to disclosure.

18.2 The Recipient must only use the Confidential Information of the Discloser for the purpose for which it was disclosed and in connection with this Agreement.

19 General

19.1 This Agreement may only be amended by a written instrument executed by both Parties.

19.2 Neither Party may assign, transfer or otherwise deal with all or any of its rights or obligations under this Agreement without the prior written consent of the other Party. Any purported dealing in breach of this clause is of no force or effect.

19.3 If the provision of the SaaS Services depends upon or includes the provision of information, materials, consents or approvals by you or your Personnel, or requires your cooperation, action or response (or that of your Personnel), you must provide that information, cooperation and those materials, consents or approvals in a timely manner.

19.4 A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, this Agreement (including any question regarding its existence, validity or termination) (Dispute) without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute. If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either Party may ask the Law Society of New South Wales to appoint a mediator. The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.

19.5 This Agreement contains the entire understanding between the Parties, and supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.

19.6 The SaaS Services will be provided to you on a non-exclusive basis.

19.7 We reserves the right at any time and from time to time to change or remove features of the SaaS Services provided that, where there is any material negative alteration to the functionality of the SaaS Services in accordance with this clause, we will provide you with 20 Business Days’ notice and we may terminate this Agreement by written notice without Liability to you .

19.8 The SaaS Services may be accessed in Australia and overseas. We make no representation that the SaaS Services complies with the Laws (including Intellectual Property laws) of any country outside of Australia. If you access the SaaS Services from outside Australia, you does so at your own risk and is responsible for complying with the laws in the place you access the SaaS Services.

19.9 With your prior written consent, we may use advertising or publicly announce that we have undertaken work for you, including in website testimonials and in our marketing material.

19.10 We may engage subcontractors to perform the SaaS Services on our behalf. Despite this, we retain responsibility for all our obligations under this Agreement.

19.11 Any failure or delay by a Party in exercising a power or right (either wholly or partly) in relation to this Agreement does not operate as a waiver or prevent a Party from exercising that power or right or any other power or right. A waiver must be in writing.

19.12 If a provision of this Agreement is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from this Agreement without affecting the validity or enforceability of the remainder of that provision or the other provisions.

19.13 This Agreement is governed by the laws of Victoria. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Victoria and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.

20 Definitions

Business Day means a day which is not a Saturday, Sunday or bank or public holiday in Victoria;

Business Hours means 9am to 5pm on a Business Day;

Computing Environment means your computing environment including all hardware, software, information technology and telecommunications services and Systems;

Confidential Information includes confidential information about a Party’s business, structure, programs, processes, methods, operating procedures, activities, products and services, trade secrets, know how, financial, accounting, marketing and technical information, customer and supplier lists (including prospective customer and supplier information), ideas, concepts, know-how, Intellectual Property, technology, and other information whether or not such information is reduced to a tangible form or marked in writing as "confidential" but does not include any information which is in the public domain other than through a breach of confidence. Our Confidential Information includes our Intellectual Property including the Software. Your Confidential Information includes the Customer Data;

Consequential Loss includes any indirect, incidental or consequential loss, loss of profits, revenue, production, opportunity, access to markets, goodwill, reputation, use or any remote, abnormal or unforeseeable loss, loss of use and/or loss or corruption of data or any loss or damage relating to business interruption, or otherwise, suffered or incurred by a person, arising out of or in connection with this Agreement (whether involving a third party or a Party to this Agreement or otherwise);

Customer Data means the information, logos, documents and other data inputted by you, your Personnel or Authorised Users into the Software or stored by the SaaS Services or generated by the SaaS Services as a result of your use of the SaaS Services;

Fees means the fees set out on the Site;

Force Majeure Event means an event which is beyond a Party's reasonable control including a fire, storm, flood, earthquake, explosion, accident, act of the public enemy, terrorist act, war, rebellion, insurrection, sabotage, epidemic, quarantine restriction, transportation embargo, and strike by employees of a third person;

Insolvency Event means the occurrence of any one or more of the following events in relation to either Party:

(a) it is or states that it is insolvent or is deemed or presumed to be insolvent under any applicable Laws;

(b) an application or order is made for its winding up, bankruptcy or dissolution or a resolution is passed or any steps are taken to pass a resolution for its winding up or dissolution;

(c) an administrator, provisional liquidator, liquidator or person having a similar or analogous function under the Laws of any relevant jurisdiction is appointed in respect of it or any action is taken to appoint any such person and the action is not stayed, withdrawn or dismissed within 10 Business Days;

(d) a controller is appointed in respect of any of its property;

(e) it is deregistered under the Corporations Act or other legislation or notice of its proposed deregistration is given to it;

(f) a distress, attachment or execution is levied or becomes enforceable against it or any of its property;

(g) it enters into or takes action to enter into an arrangement, composition or compromise with, or assignment for the benefit of, all or any class of its creditors or members or a moratorium involving any of them;

(h) a receiver or manager (or both) or trustee in bankruptcy is appointed in respect of it or its property;

(i) a petition for the making of a sequestration order against its estate is presented and the petition is not stayed, withdrawn or dismissed within 10 Business Days or it presents a petition against itself; or

(j) anything analogous to or of a similar effect to anything described above under the law of any relevant jurisdiction occurs in respect of the relevant Party;

Intellectual Property includes any and all intellectual and industrial property rights throughout the world, whether subsisting now or in the future and includes all copyright and analogous rights, all rights in relation to inventions (including patent rights), registered and unregistered trademarks, designs (whether or not registered or registrable), circuit layouts, trade names, trade secrets, business names, customer names or internet domain names. Our Intellectual Property includes the Software;

Laws means acts, ordinances, regulations, rules, code and by-laws of the Commonwealth or any state or territory and includes the Privacy Act and the Spam Act 2003 (Cth);

Liability means any loss, liability, cost, payment, damages, debt or expense (including reasonable legal fees);

Payment Terms means the payment terms set out on the Site;

Personal Information is defined in the Privacy Act;

Personnel means, in relation to a Party, the officers, employees, contractors, sub-contractors and agents of that Party;

Privacy Act means the Privacy Act 1988 (Cth);

SaaS Services means our construction pre-qualification product as set out on the Site;

Sensitive Information is defined in the Privacy Act;

Site means the website located at www.thelearningjournal.co and may be available through other addresses and channels;

Software means the software used to provide any of the SaaS Services, and includes any instructions in hard copy or electronic form and any update, modification or release of any part of that software after this Agreement is entered into by the Parties; and

System means all hardware, software, networks and other IT systems used by a Party from time to time, including a network.

21 Interpretation

In this Agreement, unless the context otherwise requires:

(a) the singular includes the plural and vice versa;

(b) headings are for convenience only and do not affect interpretation;

(c) a reference to this Agreement or any other document includes the document, all schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time;

(d) if any act which must be done under this Agreement is to be done on a day that is not a Business Day then the act must be done on or by the next Business Day;

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

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

(g) a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time;

(h) the word “includes” and other similar words mean “includes without limitation”;

(i) a reference to $ or dollars refers to the currency of Australia from time to time; and

(j) no clause will be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it.