Welcome to Campaignware (Campaignware Pty Ltd, formerly Benchvote Pty Ltd), a digital campaign creation platform for marketers to engage with their audience, grow email lists and capture insights.This User Licence Agreement (“ULA”) governs your Use of the service provided by Campaignware at the URL admin.campaignware.com (“Website”) including all Data, software, applications plugins, mobile applications and other applications and services provided from time to time on, from or through the Website (together, the “Service”).
Definitions and Interpretation
Definitions. In this Agreement:
Campaignware means Campaignware Pty Ltd (formerly Benchvote Pty Ltd) of c/o Metis Law, Level 24 Three International Towers, 300 Barangaroo Avenue, Barangaroo, NSW Australia 2000. and our related bodies corporate from time to time.
Activation Data means the raw data collected by us for you in the course of or relating to a campaign or activation conducted by you or on your behalf and includes fan Personal Information and answers to questions.
Associate in relation to a party means the employees, officers, directors, contractors and agents of that party.
Business Days means a day other than a Saturday, Sunday or a public holiday in Sydney, Australia.
Cancellation Fees means the fees and charges payable by you for cancelling a booking, as set out in Item 6 (Cancellation Fees) or as notified by us via the Service or elsewhere from time to time.
Commencement Date means the date that this Agreement starts.
Confidential Information of a party means the confidential, proprietary or commercially sensitive information of that party or its related bodies corporate (irrespective of the form or the manner in which the information is disclosed, or the time of such disclosure) including:
Information and materials in any tangible form including source code, data, designs, know-how, trade secrets, formulae, processes, techniques, methods, results, information regarding sources of supply, business plans and opportunities, business processes and methodologies, partners, clients, potential agreements and the existence, scope and activities of any research, design, development, marketing or other projects and other similar information with like characteristics, regardless of whether the information is transferred or stored in writing, visually, electronically or by any other means, which is:not generally known to the public or in the applicable trade; and either designated in writing as confidential or is of a nature that a reasonable person who deals with such information or materials would believe that the disclosing party expects it to be maintained as confidential or intends or is obligated to maintain it as confidential, but, in each case, does not include information which is in, or comes into, the public domain other than by the receiving party’s (or its Associate’s) breach of an obligation of confidence or of this Agreement, or which is independently known to, or developed by the receiving party (or its Associate) as evidenced by contemporaneous written records.
Connections means all equipment, facilities, devices, internet connections, network connections and telecommunications lines and services installed and used to connect to, access or use the Service (including modems, filters, cabling, telephone and data lines, routers and ethernet LAN connections, and all software used by them).
Consequential Loss means indirect economic loss, loss of income or profit, loss or damages resulting from wasted management time, damage to goodwill or business reputation, loss of opportunity or any other special, indirect or consequential loss or damage.
Content means any information, data or content in any form or medium and includes text, software, scripts, graphics, photos, sounds, music, videos, audio-visual combinations, interactive features and other materials from time to time.
Corporations Act means the Corporations Act 2001 (Cth).
Data means raw data and information collected by us via or through the Service including names, contact details (such as address, email address, telephone number and other personal contact information), IP addresses, other location tracking data and such other raw data and information from time to time and includes Activation Data.
End Date means the date this Agreement ends, being the date specified when the user cancels their subscription or such earlier or later date as may be determined in accordance with this Agreement.
Fee means the amount payable by you to us, as set out on the campaignware.com/pricing website.
GST means the Goods and Services Tax as defined under the GST Act. GST Act means A New Tax system (Goods and Services Tax) Act 1999 (Cth). Initial Term is the initial term of this Agreement commencing upon signing up to use the service, and ending upon cancelling the service.
Insolvency Event means (a) a liquidator or provisional liquidator is appointed and the appointment is not terminated within ten (10) days; (b) an administrator or a controller (as defined in the Corporations Act), trustee or analogous person is appointed to it or any of its property and the appointment is not terminated within ten (10) days of it being made; (c) entering into a compromise or arrangement with, or assignment for the benefit of, any of its members or creditors, being the subject of a winding up or any analogous event (in each case, except for the purposes of a corporate reconstruction or amalgamation while solvent); (d) being unable to pay its debts or is otherwise insolvent, the taking of any step that could result in the person becoming insolvent under administration (as defined in section 9 of the Corporations Act) and the proceeding is not withdrawn, struck out, dismissed or terminated within ten (10) days of the date action is taken; (e) being taken under section 459F(1) of the Corporations Act to have failed to comply with a statutory demand.
Intellectual Property Rights means patents, rights in inventions, works of authorship, designs, databases, know-how, trade secrets, confidential information, trademarks, service marks, trade, business and domain names, logos, trade dress, assumed names, get-up and goodwill, along with copyrights, Moral Rights and any other intellectual property and proprietary rights, in each case whether registered or unregistered and including all applications and registrations for renewals, continuations, continuations in par, divisions or extensions of such rights, and all similar or equivalent rights or forms of protection in any jurisdiction.
Loss means all loss, damage, costs (including all reasonable legal costs on a full indemnity basis), expense or liability of any kind, whether direct or indirect or consequential, present or future, fixed or unascertained or actual or contingent.
Moral Rights means the rights defined as “moral right” under the Copyright Act 1968 (Cth) and any other similar right capable of protection under laws of any applicable jurisdiction.
New Feature means any improvements, additions to, derivatives of or replacement of the functionality of the Service.Personal Information means any personal data to which data protection laws apply.
Related Body Corporate has the meaning given in the Corporations Act.
Security Breach has the meaning given in clause 13.2 (Privacy obligations).
Updates means all corrections for defects, fixes, enhancements, refinements, changes, extensions, alterations, variations or additional minor functionality, made to the Service from time to time.Use means access and use.
User Content means any information, data or content uploaded to the Service by you for the purposes of a campaign or activation, in any form or medium and includes text, photos, images but excludes any questions or answers to questions and, for clarity, excludes any content or data that are owned by Campaignware.
Website means the internet site at the URL www.campaignware.com, www.benchvote.com, admin.benchvote.com ,admin.campaignware.com or any other site operated by Campaignware from time to time.
In this Agreement, unless the context requires otherwise: (a) a reference to a clause, schedule or exhibit is to a clause, schedule or exhibit of or to this Agreement; (b) in calculating any period of time commencing from a particular day, the period commences on the following day and the following day counts as part of that period; (c) where an expression, word or phrase is given a particular meaning, then other parts of speech based on that expression, word or phrase and other grammatical forms of that expression, word or phrase, have corresponding meanings; (d) the rule of interpretation which sometimes requires that a document be interpreted to the disadvantage of the party which put the document forward, does not apply; (e) a reference to this Agreement or any other agreement, arrangement or document, includes any variation, novation, supplementation or replacement of them; (f) where an expression is defined anywhere in this Agreement, it has the same meaning throughout; (g) headings and sub-headings are for convenience of reference only and do not affect interpretation; (h) the phrase include, includes or including, or similar phrase does not limit what else might be included; (i) a reference to any legislation or legislative provision includes any statutory modification or re-enactment of, or legislative provision substituted for, and also any subordinate legislation issued under, that legislation or legislative provision; (j) a reference to “law” means all laws, codes, guidelines and the like, including rules of common law, principles of equity, statutes, regulations, proclamations, ordinances, by-laws, rules, regulatory principles and requirements, statutory rules of an industry body, statutory and mandatory codes of conduct, writs, orders, injunctions, judgements, Australian generally accepted accounting principles and industry-wide non-statutory rules or obligations in force from time to time; (k) a reference to dollars or $ is to an amount in Australian currency; (l) the singular includes the plural and vice versa; (m) a reference to any party to this Agreement or to any other document or arrangement, includes that party’s legal personal representatives, substitutes (including any person taking by novation), successors and permitted assigns; (n) a reference to a person includes a body corporate, partnership, joint venture, incorporated or unincorporated association, authority, State, government, or government or quasi-government body, and vice versa; (o) any schedule, attachment or exhibit, and the description of the parties, all form part of this Agreement; (p) a reference to anything (including any amount) is a reference to the whole or any part of it (except that nothing in this provision excuses a party from performing the whole of an obligation just because they have performed part of the obligation); (q) a reference to a group of persons is a reference to any one or more of them; and (r) “in writing” includes any modes of reproducing words in legible and non-transitory form including by email or other electronic means.
Your Acceptance of This Agreement
Your acceptance of this Agreement. This Agreement is important - please read it carefully. If you do not agree with any of the terms, do not use the Service and you must leave the Service immediately. Your use and continuing use of the Service is an acknowledgement that you have been given a reasonable opportunity to read this Agreement; that you have in fact read this Agreement; that you understand this Agreement, and that you agree to abide by and be bound by this Agreement.
When this Agreement applies. This Agreement applies to you if you access the Service, view Content or otherwise Use any part of the Service.
Changes to this Agreement. We may, without notice, update or otherwise change this Agreement periodically, and any such changes will be posted to the App. Your continuing use of the Service constitutes your agreement to be bound by any such changes. We are not obliged to notify you of any changes but we will endeavour to alert you to any significant changes.
Questions about this Agreement. Should you have any questions in relation to this Agreement, you should contact us at email@example.com before you use the Service.
Term. This Agreement starts on the Start Date and ends on the End Date (the “Term”), unless it is terminated earlier in accordance with this Agreement. This Agreement will automatically renew on a rolling monthly basis - and each new period will constitute the new “Term” – until it is terminated in accordance with this Agreement.
Licence to Use Service
Our licence to you. In consideration of your agreement to comply with this Agreement, we hereby grant you a non-exclusive, non-transferable licence to use the Service, unless we suspend or terminate your account or the Service, in each case, in accordance with this Agreement.
Your licence to us. In consideration of our agreement to provide the Service in accordance with this Agreement, you hereby grant us a non-exclusive, non-transferable, royalty-free licence to use the User Content, for the purposes of providing the Service to you and otherwise in accordance with this Agreement.
Nature of the Service. You acknowledge and agree that: (a) we may, at any time acting reasonably and with prior written notice to you, where possible alter, amend, interrupt, reschedule or modify all or any part of the Service; and (b) the Service may not operate on a continuous basis, and may be unavailable from time to time (including for scheduled and emergency maintenance purposes).
Service modification and availability. We reserve the right to modify the Service in whole or in part at any time in our sole discretion without any liability to you. We will use our reasonable endeavours to deliver the Service in accordance with this Agreement. Notwithstanding the foregoing, you acknowledge and agree that from time to time the Service may be inaccessible, unavailable or inoperable for any reason, including as a result of: (a) equipment malfunctions; (b) periodic maintenance procedures or repairs which we may undertake from time to time; or (c) a Force Majeure Event. We will use commercially reasonable efforts to provide the Services on a continuous basis; however, availability is not guaranteed.
Tracking and reporting of Data. We may provide you with reports from time to time setting out the analytics with respect to any campaign, activation or your Use of the Service. We will have no liability for malfunctions, discrepancies, or any circumstances that lead to incorrect Data.
Your password and login. You are responsible for maintaining the confidentiality of your password and login and you must not share your password or login with any other party. You are responsible for all activities that occur under your password and login. You must not use or attempt to use another party’s password or login to access any part of the Service. You must immediately notify us at firstname.lastname@example.org of any unauthorised use of your password or login or any other breach or suspected breach of security in respect of the Service.
No warranty of information provided by us. All information, Data and Content provided or otherwise accessed through the Service is made available purely for general informational purposes only and on an "as is" basis. We take no responsibility and we have no liability in relation to the accuracy or completeness of such information, Data or Content.
What you must do.
Standards of performance. Act in an honest, faithful, diligent, competent and professional manner in the performance of your obligations under this Agreement;
Promotions. Ensure that where you are running any lottery or game of chance you are properly licensed to do so;
Supply own Connections and equipment. Supply (at your cost) all Connections, tools, equipment and materials necessary to access and use the Service;
Right to offer additional services. Prior to approaching any third party service provider to provide any services that we, or our partners may from time to time provide (including the Services), offer to us the opportunity to provide those services to you. In addition, should you obtain a quote to provide any additional services, you will offer us the opportunity to match that quote.
Comply with Laws. Comply with all applicable Laws including applicable data protection, privacy and export Laws.
What you must not do.
In using the Service, you must not:
reproduce, make available online or transmit (electronically or otherwise), publish, adapt, create derivative works from, distribute or redistribute, transfer, broadcast, display, sell, license, perform, link, display or exploit in any other way and in any medium any part of the Service except through the functionality offered by the Service;
alter or modify any part of the Service;
breach any laws and regulations, or use the Service for any purpose that is unlawful or in breach of this Agreement;
attempt to "hack", decompile, disassemble, modify, translate, adapt, reverse engineer, create derivative works from, or sublicense any software deployed in connection with the Service. This includes "phishing", “mining”, accessing "hidden" URLs, attempting to trigger remote code for the purpose of accessing data or material you would not otherwise have access to; upload, post, email, otherwise transmit, or post links to any advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation; knowingly transmit any virus, corrupt files or any other software or function that may damage the operation of the Service or other disabling feature to the Service, or is designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or to diminish the quality of, interfere with the performance of, or impair the functionality of any part of the Service; use or launch any automated system, including "robots," "spiders," or "offline readers," that accesses the Service in a manner that sends more request messages to our servers in a given period of time than a human can reasonably produce in the same period by using a conventional online web browser;circumvent, disable or otherwise interfere with security-related features of the Service or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Service or the Content; access Content through any technology or means or other functionality of the Service from time to time; interfere with or inhibit other users from enjoying or using the Service;Unless expressly agreed with us, use the Service for any commercial purposes including selling access to the Service, selling any Content, selling advertising, sponsorships, or promotions placed on or within the Service or Content.
Take your own precautions.
You must take your own precautions to ensure that your process for accessing the Service does not expose you to risk of viruses, malicious computer code or other forms of interference which may damage your computer system. User Content must not infringe third party rights. Notwithstanding clause 8.2 (Your responsibilities regarding intellectual property), you must ensure that you are entitled to use and upload the User Content to the Service and that the User Content that you upload to the Service does not infringe any third party Intellectual Property Rights. Third Party Sites. The Service may contain links to third party sites. We have not reviewed these websites and cannot vouch for the content on their pages. We are not responsible for the condition or content of those sites. You access those sites solely at your own risk. The links are provided solely for your convenience and do not indicate, expressly or impliedly, an endorsement, sponsorship or approval by us of the sites or the content of such sites.
You acknowledge and agree that the Service is supported on the following browsers only. In addition, you agree that we may update this list from time to time by notice in writing to you:
Desktop: Chrome: Latest version (minus 2) Safari: Latest version (minus 2)Firefox: Latest version (minus 2) Internet Explorer: Not supported Internet Connection: Broadband Movbile: Chrome: Latest version (minus 2)IOS Safari: Latest version (minus 2)Internet Connection: Minimum 3G.
Notification of New Feature.
We will notify you if a New Feature becomes available, the timetable for implementation and any increase to the
Increase in Fees. Subject to you agreeing in writing to any increase in the Fees, the licence will extend to the New Feature on and from the date the Fee (including any applicable increase) is paid by you, or such other date as may be agreed in writing by the parties.
Portfolio. If we wish to: (a) name the you in any case studies, (b) name you in connection with specific use cases, or (c) quote individuals who are commenting on our use cases, we must obtain your written consent. Subject to the foregoing, we and our related bodies corporate may refer to you for the purpose of publicising the products and services offered by us or our related bodies corporate from time to time, provided that: (d) any reference is strictly factual in nature and does not, either directly or by implication, create any impression that you endorse us, our related bodies corporate; and (e) we and our related bodies corporate must cease making, and use reasonable endeavours to retract or take-down, such references upon any reasonable request by you to do so.
Consideration and Fee. In consideration of us granting the licence in clause 3.1 (Our Licence to you) to you, and the obligations set out in this Agreement, you will pay the Fee to us in accordance with this clause 7 (Fees).
Changes in Fees. Where this is a fixed term contract, the parties may agree in writing to a change in Fees. Where this is a month-to-month contract, we may vary the Fees from time to time by notice in writing to you through the Service, by email or by any other means. By continuing to use the Service after the effective date of such variation, you agree to be bound by the new Fee.
Other services. Where you request, and we agree, to provide certain other services from time to time. In consideration of the provision of any other services, you will pay us any fees that are agreed in addition to the Fees set out for the License.
Set-off. We may set-off against, or deduct from any payment to you under this Agreement any amount which you may be liable to pay to us from time to time.
Effect of non-payment: Without prejudice to any other rights or remedies we may have, if you fail to pay any sum payable under this Agreement on the due date, we may immediately suspend access to the Service.
Disputed invoices. If you disagree with the calculations in any invoice issued by us, you must notify us within 7 (seven) days of the date of the invoice and such dispute will be resolved in accordance with clause 14 (Dispute Resolution).
Refunds. Once a Fee is paid, it is not refundable.
Fees exclude GST and sales tax. Unless specified otherwise, the Fee does not include GST or sales tax. GST or sales tax (as applicable) will be added to the Fee.
Ownership of Intellectual Property Rights in Data (except Activation Data) and anonymised and interpreted Data. You acknowledge and agree that:the Service contains proprietary and confidential information that is protected by applicable intellectual property and other laws, including copyright, Campaignware owns all right, title and interest in and to (i) the Service, including all Intellectual Property Rights in the software, including Activation Data (which, as contemplated in the following clause (Intellectual property shared with you), is shared by you); (ii) all Intellectual Property Rights in any anonymised Activation Data generated or otherwise collected or processed through the Service, and the processes and algorithms applied to interpret such data and (ii) all Intellectual Property Rights contained in any benchmark measurements generated from the interpretation of or processing of Activation Data, which the parties further acknowledge Campaignware has expended significant effort and resources to anonymise and interpret such data.
Intellectual property owned by you. Subject to the previous clause (Ownership of Intellectual Property Rights in Data (except Activation Data) and anonymised and interpreted Data), as between you and us, Campaignware shares Intellectual Property Rights in any User Content and Activation Data provided you have paid the Fees applicable to the campaign or activation. Exceptions to this may occur if you opt for a Custom License Agreement with Campaignware in which you can retain Intellectual Property Rights for a fee.
Intellectual property created by us. You acknowledge and agree that we own all Intellectual Property Rights in anything created by us for Use in the Service (including New Features), regardless of whether it was requested by you. You agree that, as a result, we can use such Intellectual Property Rights in any further developments, upgrades or as otherwise determined by us.
Your responsibilities regarding intellectual property. You agree that you will not, and will not allow any third party to, (i) take any action to circumvent or defeat the security or content usage rules provided, deployed or enforced by any functionality (including without limitation digital rights management functionality) contained in the Service, (ii) use the Service to access, copy, transfer, transcode or retransmit content in violation of any law or third party rights, or (iii) remove, obscure, or alter our or any third party's copyright notices, trademarks, or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the Service. Any reproduction or redistribution of any part of the Service is prohibited and may result in civil and criminal penalties. In addition, you must not copy the Content to any other server, location or support for publication, reproduction or distribution is expressly prohibited.
Possible Infringement. You must:notify us immediately upon becoming aware of any direct or indirect infringement of any of our Intellectual Property Rights or claims by a third party that use of any of the intellectual property contained within the Service infringes the rights of a third party, anddo all things reasonably necessary, at our cost, to assist us to prevent any prohibited or otherwise unauthorised access to or use of our Intellectual Property Rights.Your name and marks. You authorise us to use and reproduce your name and trade marks (including logos) for publicity and marketing purposes.
Termination without notice. Either Party may, by providing written notice of its intention to do so, terminate this Agreement with immediate effect if the other Party: Breach of Agreement. Or its Associates commits a serious or persistent breach of any term of this Agreement and, in the case of you, includes:if any amounts owing to us remain unpaid after they have become payable (subject to paragraph (Disputed invoices)); breaching paragraph (What you must do); breaching paragraph (What you must not do);breaching clause 12 (Confidentiality)breaching paragraph (Privacy – Essential terms),and the defaulting Party fails to rectify the breach (where rectification is possible) to the reasonable satisfaction of the non-defaulting Party within 10 (ten) Business Days of the date of a notice setting out details of the breach;Detrimental acts. Or its Associates commits any act or series of acts materially detrimental to the interests of the other Party including conduct which may injure the reputation of the terminating Party’s business;Cessation of business. Ceases to carry on its business in the usual manner or ceases to hold required statutory licences; orInsolvency Event. Suffers an Insolvency Event.
Termination by you. Where this is a month-to-month agreement, you may terminate this Agreement by giving us 14 days’ prior written notice.
What happens on termination. Upon termination of this Agreement:Stop use of Service. You must immediately stop using the Service; Pay outstanding Fees. All monies owed to us must be paid in accordance with the applicable tax invoice (subject to paragraph (Disputed invoices);
Removal of Content. If your account is terminated, you must request content be associated with your account be removed within ninety (90) days.
Liability and Indemnity
No liability. To the full extent permitted by law, we, our related bodies corporate and our Associates expressly disclaim any and all liability in connection with: (a) any advice or information provided by us; (b) personal injury or property damage, of any nature whatsoever; (c) any unauthorised access to or use of our servers and/or any Personal Information stored therein; (d) any alteration, amendment, interruption, rescheduling, modification or cessation of all or any part of the Service; (e) all Content and any other information contained in any part of the Service and the removal or suspension of any Content or any other information; (f) any bugs, viruses, trojan horses, or the like which may be transmitted to or through the Service; (g) any Loss of any kind incurred as a result of the use of any Content posted, emailed, transmitted, or otherwise made available via the Service; and (h) any direct, indirect, incidental or punitive damages, including loss of profits, goodwill or intangible losses, loss of data, interruption of business or damage (including consequential, special or incidental damage), in each case, arising from access to or use of any part of the Service (including any advice or information obtained from any advisors) whether or not caused by any negligent act or omission or resulting from any delay in removing or failure to remove Content or users from the Service after receiving a request for removal even if we knew or should have known of the possibility of such Loss and whether damages are claimed in contract, tort (including negligence) or statute.
Indemnity. You indemnify and hold us harmless in respect of any and all claims, Loss of any kind whatsoever (including legal costs and disbursements on a full indemnity basis), arising directly or indirectly out of or in any way connected to any: (a) act or thing done by us in good faith and purportedly pursuant to a right granted to us under this Agreement; (b) breach by you of any provision of this Agreement; (c) any willful, unlawful or negligent act or omission by you; (d) your Use of the Service; or (e) any claims made by a third party in respect of a breach of their Intellectual Property Rights including in relation to any User Content uploaded by you.
Campaignware’s liability. You hereby irrevocably release us and waive all claims which you may have in the future against us, in respect of any action, claim or remedy whatsoever in any way attributable to your Use of the Services. We are not liable to any users. Our total liability in connection with this Agreement, whether based upon indemnity, warranty, contract, statute or tort (including negligence) will not exceed the total aggregate Fees received by us from you in the 12-month period immediately prior to the date of the event giving rise to the claim.
No liability for consequential loss. Neither party will be liable to the other for any loss of profit, loss of revenue, loss of business opportunities, loss of reputation or goodwill or any indirect or consequential loss arising in connection with this Agreement.
Terms subject to law. This Agreement is to be read subject to any legislation which prohibits or restricts the exclusion, restriction or modification of any implied warranties, conditions or obligations. If any law prohibits the exclusion of such warranties, conditions or obligations, we limit our liability to the extent permitted by law, to the re-supply of the Service.
Both Parties’ warranties. Each Party warrants that:its execution of this Agreement has been properly authorised by all necessary corporate or other action by it;it has full power (including corporate power) and lawful authority to execute and deliver this Agreement and to perform or cause to be performed its obligations under this Agreement; andupon execution this Agreement constitutes a full and binding legal obligation upon it.
No warranty regarding the Services. The Service is provided “as is” and “as available”. To the extent permitted by Law we do not warrant that the operation of the Service will be secure, confidential, uninterrupted or error-free.
No limitation on your statutory rights. We make no express warranties or representations other than set out in this clause (Warranties). Nothing in this Agreement excludes, restricts or modifies any terms, conditions or warranties that are imposed or implied by any statute, including the Competition and Consumer Act 2010 (Cth). Limitations and exclusions are made only to the extent that we may legally do so.
Consumer guarantees. You may have the benefit of consumer guarantees under the ACL, and in such cases clauses (a) through to (c) following apply: (a) our goods come with guarantees that cannot be excluded under the ACL; (b) you are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure; and (c) the benefits of this warranty are in addition to any rights and remedies imposed by Australian State and Federal legislation that cannot be excluded and where this clause is inconsistent with any other provision of this Agreement, this clause will prevail. Our liability to you is limited to the options set out in this clause.
What you must do. You must: (i) keep confidential the Confidential Information; (ii) use the Confidential Information for the sole purpose of performing your obligations under this Agreement; (iii) not commercially exploit or be directly or indirectly involved in the commercial exploitation by any third party, of the Confidential Information; and (iv) not disclose the Confidential Information to any person other than those of our Associates who need to know the Confidential Information, provided we ensure that all such Associates are aware of, and agree to comply with, the obligations of confidentiality set out in this clause 12. Any breach by an Associate will deemed to be a breach by you.
Treatment of Confidential Information on termination. Following the expiry or termination of this Agreement, or upon our request, you must return or destroy (at our option) all documents and other materials in any form in the possession, power or control of you or your Associates, which contain or refer to any Confidential Information and provide us with written certification confirming such return or destruction.
Essential terms. You acknowledge that the previous paragrapg(Privacy Obligations) is an essential term of this Agreement and any breach by you will give us the right to terminate this Agreement with immediate effect.
Notice of dispute. If a dispute arises in connection with this Agreement, any party may give written notice of the dispute to the other parties identifying the dispute and providing details of it.
Meeting to resolve dispute. Within three (3) Business Days of the parties receiving the notice referred to in the previous paragraph the parties must meet to attempt in good faith to resolve the dispute.
Appointment of independent advisor. Where the parties fail to reach a decision or resolve the dispute under the previous paragraph within 14 (fourteen) days of the issue of the notice referred to in clause 14.1, the Issuer must appoint an independent advisor in the following 14 (fourteen) days, to attempt in good faith to resolve the dispute with the assistance of the advisor.
Final resolution of dispute. Where the parties fail to reach a decision or resolve the dispute within 28 (twenty-eight) days of the notice referred to in clause 14.1, either party may submit the dispute to an expert for expert determination in accordance with the current provisions of the expert determination rules as published by the Resolution Institute (to be found on its website www.iama.org.au) whose decision shall bind the parties.
No assignment by you.
You must not assign, sublicense or otherwise deal in any other way with any rights or obligations under this Agreement whether in whole or in part – except as permitted under this Agreement. Any unauthorised assignment, sublicense or other dealing shall be null and void.
We may assign. We may assign, sublicense and otherwise deal with any rights and obligations under these Terms without restriction.
No Waiver. If we do not act in relation to a breach by you of this Agreement, this does not waive our right to act with respect to that or subsequent or similar breaches.
Entire Agreement. This Agreement and any other legal notices published by us on the Service from time to time shall constitute the entire agreement between you and us concerning the Service.
Force majeure. We will not be liable to you or any other party for any failure to perform our obligations under this Agreement where such failure or delay is caused by events beyond our reasonable control, including industrial disputes, strikes, lockouts, acts of god, acts or threats of terrorism or war, interruption to telecommunications services and failures or delays caused or contributed to by you.
Survival. Clauses 8 (Intellectual Property), 10 (Liability and Indemnity), 11(Warranties), 12 (Confidentiality), and 13 (Privacy), together with any other clauses which contemplate that a Party has any rights or obligations after this Agreement expire or terminate, survive the expiry or termination of this Agreement.
Exclusion of the Vienna Sales Convention. The United Nations Convention on Contracts for the International Sale of Goods concluded in Vienna, Austria on 11 April 1980 does not apply to this Agreement or to any individual contract of sale concluded within the framework of this Agreement.
Severability. If any provision of this Agreement is held by a competent authority to be invalid or unenforceable or otherwise becomes illegal, in whole or in part, it is to be read down or severed to the extent necessary and the validity of the other provisions of this Agreement and the remainder of the provisions in question shall not be affected.
Governing Law. This Agreement is governed by and shall be construed in accordance with the laws of New South Wales, Australia. Any dispute arising in respect of this Agreement shall be subject to the exclusive jurisdiction of the courts of New South Wales and the courts of appeal therefrom.