Terms of Use

These terms of use are entered between the owner of the Solution, Forte Information Solutions Pty Limited (ACN 153 483 115) as trustee for the Forte Unit Trust and its related companies (together we, us, our and other similar expressions) and the Customer (you, your or other similar expressions).

1.1.         In these terms of use, the following definitions apply:

Additional Fees means fees charged for Additional Services at the rate specified in the Contract Details or if no rate is specified then at our prevailing rates at the time the request for Additional Services is made.

Additional Services means any services provided by us to you in addition to the Services.

Administrator means a natural person who is authorised by you to access and use the Solution under your customer account and who is nominated by you as an Administrator during your registration for a Subscription with the Solution or otherwise during your Subscription with the Solution.

Agreement has the meaning given to it in clause 2.1.

Authorised User means a natural person invited by an Administrator to access and use the Solution under your customer account.

Claim means any present or future, actual or contingent, claim, liability, right, remedy, entitlement, demand, proof of debt, cause of action, suit or proceeding for damages, debt, costs (including legal costs and expenses), restitution, equitable compensation, account, injunctive relief, specific performance or any other remedy, whether by originating claim, cross claim or otherwise, whether arising at common law, in equity, under statute or otherwise, and whether or not known at the date of this Agreement, arising out of or relating to this Agreement.

Confidential Information of a party is information of a party or its customers which the party identifies as confidential or which would reasonably be regarded as confidential and includes without limitation information relating to the party’s Intellectual Property Rights, organisational structure, financial position, personnel, policies and business strategies.

Contract Details means the document titled ‘Contract Details’ attached to these terms of use.

Corporations Act means the Corporations Act 2001 (Cth).

Customer Data means any data or information which you input into the Solution through your account or otherwise provide to us.

Data means

• Outputs; and
• Customer Supplied Data.

Data Breach means any incident involving:

• the unauthorised access to, or unauthorised disclosure of Personal Information; or
• the loss of Personal Information where unauthorised access to, or unauthorised disclosure of that Personal Information is likely to occur.

Data Requirements means the minimum requirements for Customer Data, which will allow you access to and use of the Solution to operate at an appropriate performance level, as notified to you by us from time to time.

Device means any hardware used to access the Solution.

Eligible Data Breach has the meaning given to that term in section 26WE of the Privacy Act (or equivalent provisions of other relevant Privacy Law), having regard to the exceptions contained in section 26WF (or equivalent provisions of other relevant Privacy Law).

Enhancements mean new releases and updates of the Solution generally made available by us containing new features or functions of performance.

Estimated Users means the number of Authorised Users set out in the Contract Details.

Extension Period has the meaning given to it in clause 3.3.

Fees means the Implementation Fee, Subscription Fee and Additional Fees.

Force Majeure means any event or circumstance beyond the reasonable control of a party including industrial action, war, terrorist activity, national emergency, blockade or government action or inaction, or an act of God, having taken all reasonable but commercially prudent steps to avoid or mitigate.

GST has the meaning given to that term in the GST Act.

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

Implementation Fee means the onetime fee set out in the Contract Details.

Implementation Services means those services listed in the Work Scope.

Indirect Loss means any one or more of the following:

• economic loss, loss of actual or anticipated profits, loss of revenue, loss of savings, loss of production, loss of business, loss of opportunity, loss of access to markets, loss of goodwill, loss of reputation, loss of credit, loss of publicity, loss of data, loss of use, loss of interest or loss arising from business interruption; and
• any special, indirect, consequential, incidental, punitive, exemplary or unforeseeable loss or any similar loss.

Initial Term has the meaning given to it in the Contract Details.

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

• an application is made to a court for an order that it be wound up, declared bankrupt or that a provisional liquidator or receiver or receiver and manager be appointed, and the application is not either demonstrably frivolous or vexatious, or withdrawn, struck out or dismissed within 21 days of it being made;
• a liquidator or provisional liquidator is appointed;
• an administrator or a receiver, receiver and manager, judicial manager, liquidator, administrator, controller or like official is appointed to the person or to the whole or a substantial part of the undertaking or property of the person, including any of its assets;
• it enters into, or takes steps or proposes to enter into, an arrangement, compromise or composition with its creditors or a class of them, or an assignment for the benefit of its creditors or a class of them;
• it proposes a winding-up or dissolution or reorganisation, moratorium, deed of company arrangement or other administration involving one or more of its creditors;
• it is insolvent or states that it is insolvent, or it is presumed to be insolvent under an applicable law;
• it becomes an insolvent under administration;
• it is taken to have failed to comply with a statutory demand as a result of section 459F (1) of the Corporations Act;
• a notice is issued under sections 601AA or 601AB of the Corporations Act;
• a writ of execution is issued against it or its property;
• it ceases to carry on business or pay its debts as and when they fall due, or threatens to do so, or it is taken under applicable laws to be unable to pay its debts or stops or suspends, or threatens to stop or suspend, payment of all or a class of its debts; or
• anything occurs under the law of any jurisdiction which has a substantially similar effect to any of the above paragraphs of this definition.

Intellectual Property Rights means all present and future intellectual, industrial or proprietary rights conferred by statute, at common law or in equity anywhere in the world, whether issued or pending, registered or unregistered, including all forms of copyright, patents, trademarks, designs, trade secrets, know-how, confidential information and circuit layouts.

Late Charge means the interest rate set out in the Contract Details which is applied to late payments of Fees or other money owed to us.

Output means information, data, graphics and any other material generated by the Solution after receiving and processing Customer Data.

Personal Information has the meaning given to that term in the Privacy Act.

Privacy Act means the Privacy Act 1988 (Cth).

Privacy Law means any law to which we or you are subject, in Australia or otherwise, which relate to the collection, use, disclosure, storage or granting of access rights to the Personal Information, including the Privacy Act.

Service Levels means those set out in Schedule 2.

Services means the Implementation Services and those other services to be provided by us as outlined in clause 4 and more fully described in the Work Scope.

Solution means the Forte IS CRM platform which collects and processes Customer Data to provide Outputs for CRM, account and sales management and which is provided as ‘Software as a Service’.

Start Date means the date set out in the Contract Details or if no date is specified the date on which you first receive any Implementation Services or access the Solution, whichever occurs first.

Stay means a stay on enforcing rights against a party which arises under the Corporations Act if that party becomes subject to an event described in paragraph (c) or (d) of the definition of Insolvency Event.

Subscription means the subscription to the Solution chosen by you and set out in the Contract Details.

Subscription Fees means the service fee payable by you for the Subscription you choose.

Support means the support services provided in accordance with the Service Levels set out in Schedule 2.

Term means the Initial Term and each Extension Period.

Updates mean updates of the Solution generally made available by us containing correction of reported bugs, defects or errors, change, amendment or modification to the Solution but which does not materially affect existing functionality.

Work Scope means Schedule 1 which sets out in detail the scope of the Implementation Services, other services included as part of the Subscription and any Additional Services to be provided.

1.2.         In these terms of use, unless the context otherwise requires:

(a)            words denoting any gender include all genders;

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

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

(d)            any schedule or annexure attached to these terms of use forms part of them;

(e)            a reference to a party includes its legal personal representatives, successors and permitted assigns;

(f)             a reference to a person includes a corporation, trust, partnership, unincorporated body or other entity, whether or not it comprises a separate legal entity;

(g)            a reference to a statute or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;

(h)            unless expressly stated to be otherwise, the meaning of general words is not limited by specific examples introduced by ‘including’, ‘for example’ or similar inclusive expressions; and

(i)              a reference to these terms of use means this document and includes any variation or replacement of this document.

2.1. The parties agree that the following documents together comprise the Agreement:

(a) the Contract Details;
(b) these terms of use; and
(c) each schedule or annexure (if applicable).

2.2. This Agreement governs the:

(a) supply of the Services; and
(b) access to and use of the Solution

3.1. This Agreement commences on the Start Date and continues for the Term.

3.2. Upon expiry of the Initial Term, this Agreement will automatically renew for successive periods of 12 months each (each an Extension Period), unless the Agreement is otherwise terminated in accordance with clauses 29.3 or 30.

4.1. The Services to be provided by us includes:

(a) access and use of the Solution, as set out in clause 5;
(b) the Implementation Services, as set out in the Work Scope;
(c) the Support, as set out in Schedule 2; and
(d) the other services indicated in the Work Scope included as part of the Subscription selected.

4.2. The Services provided to you under this Agreement are non-exclusive, and nothing in this Agreement prevents the Supplier from providing the Services to any other person.

5.1. The Subscription you choose, and its details are set out in the Contract Details.

5.2. If you require any further customisation of the Solution for your specific needs which is not included in our standard Implementation Services, you may request us to provide Additional Services.

5.3. From time to time we may offer:

(a) different subscription plans for the Solution, with different inclusions and pricing; or
(b) Enhancements to the Subscription for which we reserve the right to charge additional fees.

5.4. When we issue Updates, you may be required to download software to a Device or follow instructions provided as part of our general maintenance and operation of the Solution. If you do not download such software to a Device or follow any instructions provided you may not be able to continue to use the Solution or its functionality may be reduced, and you acknowledge we do not provide support for superseded versions of the Solution.

6.1. In consideration of your payment of the Fees, we grant you a limited, non-exclusive, non-transferable, revocable right to access and use the Solution for your internal business operations in accordance with these terms of use.

7.1. We will provide the Implementation Services for the Implementation Fee.

8.1. We will provide each Administrator with a username and password, which will enable that Administrator to access and use the Solution on your behalf. Each Administrator must select their own username and password at the time of first use of the Solution. You can add, remove or replace Administrators through your account.

8.2. The Solution allows each Administrator to invite other persons to access and use the Solution under your customer account. An Administrator inviting another person to use your customer account will constitute authorisation of that other person by you to use your account. A username, linked to your account, will be created for each new or additional Authorised User and provided directly to each Authorised User. Each Authorised User must select their own username and password at the time of their first use of the Solution.

8.3. You must:

(a) ensure that each Administrator and Authorised User keeps his or her username and password confidential and does not disclose it to any other person (and in order to improve the security of their account, amends his or her password from time to time);
(b) ensure that you can identify and manage each Authorised User entrusted with a username and password combination for your customer account;
(c) refrain from authorising anyone to use your customer account who is not either employed by you or under contract with you to perform functions similar to those commonly performed by employees;
(d) notify us of the names of each Authorised User if requested by us; and
(e) immediately notify us of any unauthorised use of your password or account or any other breach of security.

8.4. You are responsible for:

(a) authorising any person who is given access to the Solution using your customer account and to the Data and any Outputs;
(b) all activities that occur under your account, including all fees and charges in connection with that use; and
(c) providing, installing and maintaining at your own expense, including data charges associated with your use of Devices, all equipment and facilities necessary to enable you to use the Solution.

8.5. You agree that we have no obligation to provide any person access to the Solution through your customer account or to any Data without your authorisation.

9.1. You must ensure that your access and use of the Solution is not illegal or prohibited by laws that apply to you.

9.2. You must not, nor cause or permit a third party to:

(a) use the Solution in a manner or for a purpose which is improper, immoral or fraudulent, which infringes any person’s Intellectual Property Rights, or which restricts or interferes with our provision of the Solution to any other customers or users;

(b) reverse engineer, reverse assemble or reverse compile or copy or duplicate or modify or make derivative works of or re-sell all or part of the Solution (or any of our Intellectual Property Rights in the Solution)

(c) enter into any transaction relating to:
(i) access or use of the Solution;
(ii) any part of your customer account information or access credentials; or
(iii) any of our Intellectual Property Rights in the Solution,
with anyone other than us, without our written consent;

(d) gain or attempt to gain unauthorised access to the Solution, computer systems or networks connected to the Solution, including through hacking, password mining or any other means; or

(e) use data mining, robots, screen scraping or similar data gathering and extraction tools on the Solution for establishing, maintaining, advancing or reproducing information contained in the Solution, on your own website or in any other publication, or for your own personal use or benefit (other than as expressly set out in these terms of use), except with our prior written consent.

9.3. You indemnify, and will defend and hold us and our affiliates, representatives, successors and assigns, including their applicable officers, directors, employees and agents, harmless in relation to any loss, claim or damage in connection with any claim by a third party related to the Data, your content or any of your users’ use of the Solution where such use is not authorised by these terms of use.

10.1. Subject to clauses 10.6 and 10.7, Customer Data collected, and any Outputs generated using your Customer Data belong to you.

10.2. You are responsible for any Customer Data and where any Customer Data includes any Personal Information, you must ensure that processing of any Customer Data conducted according to your instructions will not place us in breach of any laws (including applicable data protection or Privacy Laws).

10.3. You warrant that:

(a) you have obtained all consents necessary to collect, store, disclose, use and transfer any Customer Data, including any Personal Information included in it;

(b) the Customer Data will:

(i) not violate or infringe the rights (including Intellectual Property Rights) of any other person;
(ii) not contain a virus or other harmful component; and
(iii) comply with any guidelines we notify to you from time to time on this website.

10.4. We engage a third-party cloud storage to store all Data and while we use reasonable measures to ensure that our third-party providers adopt appropriate technical and organisational measures to ensure safe and proper storage of Data you are ultimately responsible for, and must adopt reasonable measures to limit your exposure to the potential loss and damage of the Data, including downloading and backing up Data. We expressly exclude liability for any loss of Data no matter how caused.

10.5. You acknowledge the Solution is dependent on the quality and amount of Customer Data it receives from you and may not function properly or provide Outputs if any Customer Data does not meet our Data Requirements.

10.6. You acknowledge that we may use the Data and information derived from the Data to produce a compilation of aggregated data and information for use in enhancing the functionality of the Solution. We will ensure that any Personal Information disclosed by you to us cannot be ascertained from the aggregated data and information.

10.7. You agree that we may, at our sole discretion, disclose, transfer and store the Data, including Personal Information, to or with our third-party service providers and affiliates outside Australia for the purpose of providing the Solution or any part of it. You consent to us providing Personal Information to those third-party service providers and affiliates in those jurisdictions and (before submitting any Customer Data to us) are solely responsible for ensuring that any disclosure, transfer or storage of Customer Data, including Personal Information, across a country border under these terms of use complies with applicable data protection and privacy laws, including the Privacy Act.

10.8. You may provide a written request to Us to archive and retain Your Data and Outputs on the Solution, and We reserve the right to charge a fee for that service, however if We do not receive any request from You to archive and retain Your Data and Outputs we may delete them from the Solution after two years from the date it is uploaded to or generated by the Solution.

11.1. You must take your own precautions to ensure that the process which you use for accessing the Solution does not expose you to the risk of viruses, malicious computer code or other forms of interference which may damage your own computer system.

11.2. We do not accept responsibility for any interference or damage to your own computer system which arises in connection with your use of the Solution or any linked website or service.

12.1. While we intend to use reasonable endeavours to make the Solution available for your use on a 24 hour a day, seven days a week basis, you expressly acknowledge and agree that service continuity is not assured and that the Solution is provided on an ‘as is’ basis. In particular, you agree that on occasions the Solution may be unavailable or have limited availability including:

(a) to permit routine or emergency maintenance to take place;
(b) to permit upgrades or other development activity to take place;
(c) due to technical malfunctions of Customer’s software, equipment or infrastructure (e.g. telecommunications connectivity, network congestion or delays);
(d) due to a Force Majeure event; or
(e) due to clause 12.3 applying.

12.2. In the case of technical problems which adversely affect your use of the Solution, you must make all reasonable efforts to investigate and diagnose problems before contacting us. If you still need technical help, you must notify us promptly via email to support@forteis.com.au

12.3. We may temporarily limit or suspend the availability of all or part of the Solution if it is necessary for reasons of public safety, security or maintenance of the Solution, interoperability of services, data protection or to perform work that is necessary for operational or technical reasons.

13.1. Subject to clause 13.3, the support services provided as part of the Services will be provided in accordance with the Service Levels.

13.2. You must:

(a) maintain your own records of all defects and malfunctions and make those records available to us on request; and
(b) ensure your staff are aware of how to report faults or defects on the Solution.

13.3. We are not liable for any failure to comply with the Service Levels where:

(a) your Customer Data does not conform with the Data Requirements;
(b) delays or complications are caused by your employees, agents or contractors; or
(c) delays or complications are caused by third parties.

14.1. You may ask us to provide Additional Services to you.

14.2. If we agree to provide Additional Services to you, we may charge you the Additional Fees for providing the Additional Services as per the hourly rate or the additional Support Package.

15.1. You must pay us the relevant Fees for the Services and Subscription you choose.

15.2. The Implementation Fee is a onetime only fee.

15.3. The Subscription Fee is charged on a per user basis and the total Subscription Fee charged each month will be the greater of the actual total Authorised Users or the Estimated Users for that month.

15.4. Subject to clause 15.5, the Fees are fixed for the Term unless otherwise agreed.

15.5. Notwithstanding clause 15.4, on each anniversary of the Agreement, our Fees will be increased by applying the then current Sydney All Groups CPI Index or 3%, whichever is higher.

15.6. For accurate calculation of the Subscription Fees, you must provide us the following notice in respect of changes to the number of Authorised Users:

(a) at least two (2) Business Days’ prior written notice of any personnel in addition to the Estimated Users that require access to and use of the Platforms (Increased Users); and
(b) at least ten (10) Business Days’ prior written notice of any decrease in the personnel below the Increased Users.

16.1. You must pay the Implementation Fee on execution of this Agreement.

16.2. We will invoice you monthly in advance for the Subscription Fee and adjusted for any Increased Users in the preceding month.

16.3. We will invoice you for any Additional Fees at the end of the month in which they are incurred.

16.4. All invoices issued by us under clause 16.2, will be direct debited from your nominated bank account within seven (7) days following receipt of the invoice.

16.5. If no direct debit is established invoices must be paid within 7 days of issue unless otherwise stated on the invoice or agreed by us in writing to you.

17.1. If you fail to pay any amount payable under this Agreement when due:

(a) all money owing to us by you becomes immediately payable;

(b) we may:
(i) apply the Late Charge on any overdue payments, calculated daily until the overdue amounts are paid in full;
(ii) suspend the performance of the Services or access to the Solution (until the debt is paid);
(iii) charge a reactivation fee to reactivate your customer account and access to the Solution; and

(c) you must pay all reasonable expenses incurred by us in enforcing these terms of use, including all expenses of any legal proceeding and all reasonable legal fees incurred in connection with any such action.

18.1. You must reimburse us for all sales, use, transfer, privilege, excise or other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed by reason of the transactions contemplated under these terms of use, excluding, however, income taxes on profits which may be levied against us.

18.2. Without limiting clause 18.1, all consideration provided for any taxable supply under these terms of use is exclusive of GST unless the contrary is clear. The amount of that consideration must be increased by an additional amount equal to the GST on that taxable supply. The party who has to pay the additional amount must pay it at the same time as the consideration in respect of that taxable supply becomes due.

18.3. If at any time an adjustment is made or required to be made between a party and the relevant taxing authority on account of any amount paid as GST under these terms of use:

(a) a corresponding adjustment must be made;
(b) adjustment notes must be issued; and
(c) any payment must be made,
between the parties as may be necessary to give effect to the adjustment.

20. If requested by us, you agree to:

(a) be a reference in our promotional and marketing materials subject to prior written consent to such reference is obtained; and
(b) provide testimonials regarding the Solution.

21.1. Except for the limited license to access and use the Solution under clause 6, all ideas, concepts, know-how, data processing techniques, data compilations, software, documentation, training guides and videos, trademarks, trade secrets, copyright and inventions and other Intellectual Property Rights comprised in or in connection with the Solution (including its underlying technology, software, programs, as well as all its respective modifications, developments, updates and enhancements) are owned by us or our licensors. You agree that no transfer of our (or our licensors’) Intellectual Property Rights occurs at any time by access and use by you (or your users’) use of the Solution.

21.2. You do not own or use and must not claim any right or title to own or use, the Intellectual Property Rights in the Solution, except to the extent such use is permitted under these terms of use. You must not dispute or challenge our (or our licensors’) entitlement to own, use or license the Intellectual Property Rights in the Solution (including its underlying technology, software, programs, as well as all its respective modifications, developments, updates and enhancements) or join any third parties to challenge or contest the validity of those Intellectual Property Rights.

21.3. You agree to notify us promptly of any infringement, or suspected or threatened infringement, of the Intellectual Property Rights in the Solution and reasonably co-operate with us in relation to such infringement.

22.1. Each party must not without the written consent of the other:

(a) use any Confidential Information of the other party, except in performing its obligations under these terms of use; or

(b) disclose any Confidential Information of the other party to any person except to its approved employees, officers, directors and other representatives, who need to review the Confidential information in connection with performance under these terms of use, and then only to those who need to know the same and who agree to be bound by similar obligations of confidentiality. Despite the foregoing, we may disclose certain Confidential Information of yours to our third-party suppliers, subject to the obligation of confidentiality, as necessary to:
(i) provide you with the Solution or obtain support for the Solution;
(ii) obtain information specifically requested by you;
(iii) perform back-office functions or administrative services; or
(iv) as necessary to comply with legal and/or accounting requirements.

22.2. Clause 22.1 does not apply where:

(a) disclosure is required by law or required to respond to requests by a regulatory or judicial body;
(b) the Confidential Information is in the public domain through no fault or action of the recipient, its employees or subcontractors; and
(c) the Confidential Information was received by the recipient on a non-confidential basis from a third party who is not prohibited from disclosing it.

22.3. These obligations of confidentiality survive termination of the Agreement.

23.1. If we become aware of an actual or suspected Data Breach in respect of Personal Information held by or on behalf of you, we will:

(a) notify you of the occurrence of that Data Breach in accordance with the Service Levels;

(b) take such steps as are reasonable in the circumstances to contain that Data Breach and to provide advice on how to minimise the probability of future incidents of the same type;

(c) commence investigating the actual or suspected Data Breach, as soon as reasonably practicable;

(d) comply with your reasonable directions in connection with how the Data Breach is managed, assessed or reported; and

(e) assist you to:
(i) assess whether based on the information available, there are reasonable grounds to believe that the Data Breach amounts to an Eligible Data Breach; and
(ii) notify individuals who are, or may be, affected by an Eligible Data Breach and any relevant regulatory authority.

23.2. You acknowledge you are ultimately responsible for the management, investigation and reporting on any Data Breaches other than for Data Breaches in respect of Personal Information held by us on your behalf.

24.1. The Customer agrees it will not directly or indirectly solicit Forte’s employees who have been engaged to perform the Services in accordance with this Agreement for the duration of the Agreement and for a period of eighteen (18) months after the termination or expiration of the Agreement.

24.2. The Customer further agrees should it breach this clause then it will pay to Forte liquidated damages 1.5 x the employees annual salary package.

25.1. You agree to hold harmless and indemnify us and our officers, agents and employees against any Claim that we, or any of our officers, agents and employees, may incur in connection with your breach of the Agreement or any other legal obligation, your use of the Solution or any user of the Solution using an account registered in your name.

25.2. Each indemnity in these terms:
(a) is a continuing obligation, separate and independent from the other obligations of the parties;
(b) will not be affected by any matter including without limitation, the termination, renewal or extension of these terms of use or any indulgence, waiver or other concession given by us unless we agree in writing; and
(c) includes legal costs and disbursements on a full indemnity basis.

25.3. It is not necessary for us to incur expense or to make any payment before enforcing the right of indemnity conferred by this clause.

25.4. You must pay on demand any amount you must pay under the indemnity in this clause.

26.1. You acknowledge that making the Solution available for access is dependent on a number of factors outside our control, including for example, the telecommunication connections and infrastructure.

26.2. Except for any payment obligations, neither party is liable for any delay or failure to perform any of its obligations under these terms of use to the extent that the delay or failure is caused by reason of Force Majeure.

27.1. Each party represents and warrants to the other that:

(a) it has the power and authority to enter into and perform its obligations under these terms of use;
(b) it has taken all necessary steps, including any corporate action necessary if it is a corporation, to authorise its entry into and performance of all of its obligations under these terms of use and to carry out the transactions contemplated by these terms of use.

28.1. We make no representation or warranty:

(a) that your use of the Solution or any Outputs will be error-free, uninterrupted or compatible with your equipment, devices and software configurations;
(b) that the Solution or any Outputs will be fit for your purposes; or
(c) that your use of the Solution or any Outputs will improve the financial performance or profitability of your business or any other party.

28.2. You agree that:

(a) the provision of, access to, and use of, the Solution or any Outputs is on an “as is” basis and at your own risk;
(b) among other things, the operation and availability of the systems used for accessing the Solution, including telecommunication services, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Solution. We are not in any way responsible for any interference or prevention of your access or use of the Solution caused by these types of things;
(c) it is your sole responsibility to determine that the Solution or any Outputs meets the needs of your business and is suitable for the purposes for which it is used; and
(d) you remain solely responsible for complying with all applicable laws in connection with your access and use of the Solution or any Outputs.

29.1. Nothing in these terms of use is or should be interpreted as an attempt to modify, limit or exclude any right or remedy, or any guarantee, term, condition, warranty, undertaking, inducement or representation, implied or imposed by legislation which cannot be modified, limited or excluded.

29.2. You agree that you do not rely on any guarantee, term, condition, warranty, undertaking, inducement or representation made by us or on our behalf which is not expressly stated in the Agreement.

29.3. Where any legislation implies or imposes a guarantee, term, condition, warranty, undertaking, inducement or representation in relation to these terms of use and we are not able to exclude that guarantee, term, condition, warranty, undertaking, inducement or representation (Non-Excludable Provision), and we are able to limit your remedy for a breach of the Non-Excludable Provision, then our liability for breach of the Non-Excludable Provision is limited to (at our election):

(a) in the case of goods, the repair or replacement of the goods or the supply of equivalent goods (or the payment of the cost of doing so); and
(b) in the case of services, the supplying of the services again (or the payment of the cost of doing so).

29.4. Subject to our obligations under the Non-Excludable Provisions our maximum aggregate liability to you in respect of any one Claim or series of connected Claims in connection with the Agreement or your use of the Solution, whether arising in or for breach of contract, negligence or other tort, breach of statutory duty, or under an indemnity or otherwise is limited to the minimum Subscription Fees payable by you to us in the 12 months preceding the date on which the Claim arose.

29.5. Notwithstanding anything else in the Agreement, neither party is liable to the other or any third party for any Indirect Loss arising in connection with any use or access, or any inability to use or access, or misuse by you or any other party, of the Solution or any Outputs or otherwise in connection with them, whether arising in or for breach of contract, negligence or other tort, breach of statutory duty, breach of warranty or guarantee, under an indemnity or otherwise and whether or not that loss was foreseeable, even if advised of the possibility of such loss.

29.6. The liability of a party for loss or damage sustained by the other party in respect of any Claim will be reduced proportionately to the extent that:

(a) such loss or damage has been caused by the other party’s failure to comply with its obligations and responsibilities under the Agreement; or
(b) the negligence of the other party has contributed to such loss or damage, regardless of whether a claim is made by the other party.

30.1. We may without notice suspend your access to the Solution if:

(a) you (or your Administrators or any of your Authorised Users) breach the Agreement; or
(b) we reasonably believe that your access and use of the Solution will cause technical incapacity to the Solution which will continue unless access or use is suspended.

30.2. We will act promptly to restore access when we are satisfied that the reason for suspension has been removed, however we reserve the right to charge a fee for restoring access.

30.3. If within 30 days of suspension under clause 30.1 we are not reasonably satisfied that the reason for suspension has been removed, we may terminate your Subscription to the Solution upon written notice.

31.1. In addition, and without prejudice to any other rights or remedies, either party may terminate the Agreement, as follows:

(a) after expiry of the Initial Term, by giving the other party 90 days written notice of termination; or

(b) immediately upon giving written notice to the other party, if the other party becomes or threatens to become subject to any form of insolvency administration and that insolvency administration:
(i) does not give rise to a Stay; or
(ii) gives rise to a Stay, but a court makes an order to lift that Stay.

32.1. On termination of the Agreement for any reason, you must:

(a) subject to clause 32.3, immediately cease accessing and using the Solution; and
(b) immediately pay any and all outstanding invoices or any charges or fees incurred as a result of your access and use of the Solution before the date of termination.

32.2. Termination of the Agreement does not affect any accrued rights or liabilities of any party nor does it affect any provision of the Agreement which is expressly or by implication intended to operate after termination.

32.3. Subject to clauses 10.8 and 32.4, after termination of this Agreement or expiry of your Subscription, we will continue to provide you with access to the Data, solely for the purposes of allowing you to extract any Data that you have saved in and remain on the Solution, following which we will permanently delete any Data you have saved in and remain on the Solution.

32.4. If you require assistance with the migration of any Data, this will be an Additional Service for which we may charge an Additional Fee.

32.5. Clause 32.3 will not apply if we reasonably believe that your continued access to the Data will cause technical incapacity to the Solution.

33.1. Notices given under these terms of use must be in writing and delivered to a party by hand or by email to that party’s address shown in the Contract Details or to an alternate address notified to the party giving the notice.

33.2. A notice is taken to be duly given and received:
(a) if delivered by hand, when delivered; or
(b) if delivered by email, within 2 hours of sending, unless the sending party receives a delivery failure notice from their ISP or the recipient’s systems.

34.1. These terms of use constitute the entire understanding between the parties and supersedes all previous and contemporaneous communications, representations, or agreements with respect to your access and use of the Solution.

34.2. No failure or delay of either party in exercising any right, power, or privilege under these terms of use (and no course of dealing between the parties) operates as a waiver of any such right, power of privilege. No waiver of any default on any one occasion constitutes a waiver of any subsequent default. No single or partial exercise of any right, power, or privilege precludes the further or full exercise of such right, power or privilege.

34.3. If any provision of these terms of use is held to be unenforceable, the parties agree to substitute the affected provision with an enforceable provision that approximates the intent and economic effect of the affected provision.

34.4. If any one or more of the provisions of these terms of use are for any reason held to be invalid, illegal or unenforceable by a court of competent jurisdiction or a panel of arbitrators, the remaining provisions of these terms of use will be unimpaired and will remain in full force and effect.

34.5. Each party must do everything reasonably required by the other to give full effect to these terms of use.

34.6. These terms of use and all matters regarding the interpretation and/or enforcement of these terms of use, are governed exclusively by the laws in force in the State of New South Wales, Australia and the parties submit to the non-exclusive jurisdiction of the courts of New South Wales.