AVANI TERMS OF USE

Current as of 6 December 2023.

 

These Terms of Use, together with the SaaS Agreement entered into by the Customer and the annexed policies (Policies) set out the terms and conditions on which IBMS Pty Ltd (ABN 11 110 730 848) (Company) may provide the Customer access to the Avani Software Platform (Service). These Terms of Use and the Policies may be amended from time to time in accordance with these Terms of Use, with the current versions available at www.avanisolutions.com.

 

The Customer should read these Terms of Use and the Policies carefully. The Customer is deemed to accept these Terms of Use and the Policies by executing the SaaS Agreement or continuing to access or use the Service.

Table of Contents

OPERATIVE PROVISIONS

1. Definitions and Interpretation

1.1. Definitions

In these Terms of Use unless the context otherwise requires:

Avani Software Platform means the software as a service platform to which access is granted to the Customer in respect of the portfolio of Facilities set out in the SaaS Agreement subject to these Terms of Use.

Avani Site Connector means a hardware device which is installed at a Facility by a representative of the Company and contains software that collects Input Data from a Facility for the purposes of the Avani Software Platform.

Background IP means the Intellectual Property Rights of a party which were in existence prior to the commencement of the SaaS Agreement or which is subsequently developed by that party independently of and for purposes unconnected with the SaaS Agreement (including these Terms of Use).

Claims means all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise).

Company has the meaning given at the beginning of these Terms of Use.

Confidential Information means any information of whatever kind which a party discloses or reveals to the other party under or in relation to the SaaS Agreement (including these Terms of Use) that:

  • (a)is by its nature confidential;
  • (b) is designated by the disclosing party as confidential; or
  • (c) the recipient knows or reasonably ought to know is confidential,

including Background IP and any information received or developed by the Company during the term of the Initial Term and any Renewal Term, which relates to processes, equipment and techniques used by the Company in the course of the Company’s business. This includes all information, data, drawings, specifications, documentation, source or object code, designs, construction, workings, functions, features and performance notes, techniques, concepts not reduced to material form, agreements with third parties, schematics and proposals and intentions, technical data and marketing information such as customer lists, financial information and business plans. Confidential Information does not include:

  1. (d)information that is published or has otherwise entered the public domain other than in breach of the SaaS Agreement (including these Terms of Use); or
  2. (e) information that is independently developed or obtained other than in breach of SaaS Agreement (including these Terms of Use).

Consumer Guarantee means a guarantee applicable to the supply of goods or services which is incorporated into these Terms of Use pursuant to division 1 part 3-2 of the Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth).

Customer means the customer granted access to the Avani Software Platform pursuant to the SaaS Agreement.

Customer Data means data that is generated by the Customer via use of the Avani Software Platform, and data that comes into existence as a result of processing of the Input Data.

Equipment has the meaning given in clause 3(e).

Facility means a facility listed in the SaaS Agreement for the Customer, being a facility in respect of which access to the Avani Software Platform is to be provided for the Customer.

Facility Size means one or more metrics set out in the SaaS Agreement which describes the size of a Facility, for example by reference to spatial area and/or number of connected devices.

Fees has the meaning set out in clause 10.

Feature Set means a feature set designated in the SaaS Agreement for the Customer.

Force Majeure Event means any occurrence or omission as a direct or indirect result of which the party relying on it is prevented from or delayed in performing any of its obligations under these Terms of Use and which is beyond the reasonable control of that party and could not have been prevented or mitigated by reasonable diligence or precautionary measures, including forces of nature, natural disasters, acts of terrorism, riots, revolution, civil commotion, epidemic, pandemic, endemic, industrial action and action or inaction by a government agency but does not include any act or omission of a subcontractor or a lack of funds for any reason.

General Services Agreement means a separate agreement between the Customer and the Company regarding the provision of goods and other services.

GST has the meaning given in the GST Law.

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

Initial Term has the meaning set out in the SaaS Agreement.

Input Data means analytic data collected from or in relation to a Facility which is used for the purposes of the Avani Software Platform which, for the avoidance of doubt, does not include any commercially sensitive information of the Customer.

Intellectual Property Rights means all industrial and intellectual property rights, both in Australia and throughout the world, and includes any copyright, moral right, patent, registered or unregistered trade mark, registered or unregistered design, trade secret, knowhow, right in relation to semiconductors and circuit layouts, trade or business or company name, indication or source or appellation of origin or other proprietary right, or right of registration of such rights.

Loss means all losses including financial losses, damages, legal costs and other expenses of any nature whatsoever.

Minimum Monthly Uptime has the meaning given in the Service Level Agreements.

Non-identifiable Data has the meaning given in clause 4(f).

Personal Information has the meaning set out in the Privacy Act 1988 (Cth).

Platform IP means any and all Intellectual Property Rights relating to the Avani Software Platform, and includes Platform IP Improvements.

Platform IP Improvements means any improvements in the Platform IP, including any Intellectual Property Rights discovered, developed or otherwise coming into existence in connection with the provision of the Service (other than Customer Data).

Policies has the meaning given at the beginning of these Terms of Use.

Privacy Commissioner means the privacy commissioner who serves the Office of the Australian Information Commissioner.

Proposal means the customer proposal in the SaaS Agreement.

Proprietary Information has the meaning given in clause 4.

Renewal Term has the meaning set out in the SaaS Agreement.

SaaS Agreement means an agreement entered into between the Customer and the Company in relation to accessing the Avani Software Platform.

Service has the meaning set out at the beginning of these Terms of Use.

Service Level Agreements has the meaning set out in the Proposal in the SaaS Agreement.

1.2. Interpretations

In these Terms of Use unless the context otherwise requires:

  • (b) a reference to any legislation or legislative provision includes any statutory modification or re-enactment of, or legislative provision substituted for, and any subordinate legislation issued under, that legislation or legislative provision;
  • (c) the singular includes the plural and vice versa;
  • (d) a reference to an individual or person includes a corporation, partnership, joint venture, association, authority, trust, state or government and vice versa;
  • (e) a reference to any gender refers to all genders;
  • (f) a reference to a recital, clause, schedule, annexure or exhibit is to a recital, clause, schedule, annexure or exhibit of or to these Terms of Use;
  • (g) a recital, schedule, annexure or description of the parties forms part of these Terms of Use;
  • (h) a reference to any agreement or document is to that agreement or document (and, where applicable, any of its provisions), as amended, novated, supplemented or replaced from time to time;
  • (i) a reference to any party to these Terms of Use, or any other document or arrangement, includes that party's executors, administrators, substitutes, successors and permitted assigns;
  • (j) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
  • (k) where an expression is defined anywhere in these Terms of Use it has the same meaning throughout;
  • (l) a reference to time is to local time in New South Wales; and
  • (m) a reference to "dollars" or "$" is to an amount in Australian currency.

2. SaaS Services and Support

  • (a) Subject to these Terms of Use and the Service Level Agreements, the Company will provide the Service to the Customer (together with technical support in accordance with the Policies:
    • (i) in accordance with good industry practice;
    • (ii) in compliance with the Proposal; and
    • (iii) in compliance with applicable laws.
  • (b) The Company will take reasonable steps to ensure that the Service will be free from viruses, worm, trojan or other malicious code.
  • (c) Subject to these Terms of Use and the Policies, the Company grants to the Customer a revocable non-exclusive, non-transferable right to access and use the Avani Software Platform from anywhere in the world during each Initial Term or Renewal Term (as applicable).
  • (d) The Customer hereby grants permission to the Company to access, use, modify, adapt and analyse the Input Data as reasonably required for the purposes of delivering the Service.

3. Restrictions and Responsibilities

  • (a) The Customer will:
    • (i) co-operate with the Company in relation to the provision of the Service to the extent specified in the Proposal and in response to any reasonable request made by the Company;
    • (ii) provide the Company in a timely manner with all information reasonably requested by it to enable it to provide the Service (and will take all reasonable steps to ensure that such information is accurate); and
    • (iii) provide the Company with reasonable access to the Customer’s Personnel to liaise with the Company’s Personnel in relation to any ongoing technical and operational requirements in relation to the provision of the Service.
  • (b) Except as otherwise permitted by the SaaS Agreement (including these Terms of Use), the Copyright Act 1968 (Cth) or agreed to in writing by the Company, the Customer must not:
    • (i) modify the Avani Software Platform or merge any aspect of the Avani Software Platform with another program, record, reverse engineer, copy, duplicate, reproduce, create derivate works from, frame, download, display, transmit or distribute any of the Avani Software Platform, the source code of the Avani Software Platform or any documents, manuals or setup instructions provided with the Avani Software Platform or in relation to the Service;
    • (ii) purport to licence, sell, rent, lease, transfer, assign or otherwise commercially exploit the Avani Software Platform or the Service;
    • (iii) engage in unauthorised access to or use of data, services, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures;
    • (iv) access, store, distribute or transmit:
      • (A) viruses, worm, trojan or other malicious code that corrupts, degrades or disrupts the operation of the Avani Software Platform;
      • (B) material that is unlawful, unethical, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive or a contravention of the rights of any third party;
      • (C) material that facilitates illegal activity; or
      • (D) material that causes damage or injury to any person or property;
    • (v) provide login details or passwords, or otherwise provide access to the Avani Software Platform, to any unauthorised third party and the Customer will take all reasonable steps to prevent unauthorised access to, or use of, the Avani Software Platform;
    • (vi) share any features of the Avani Software Platform that are not publicly available with any unauthorised third party;
    • (vii) engage in any conduct on the Avani Software Platform that is in breach of these Terms of Use or the Policies; and
    • (viii) purport to encumber or allow the creation of any mortgage, charge, lien or other security interest in respect of the Avani Software Platform. Any breach of this clause 3 constitutes a material breach of these Terms of Use and the Company may, at its absolute discretion, terminate or suspend the Customer’s access to, and/or use of, the Avani Software Platform or the Service, and/or take further actions against the Customer for breach of these Terms of Use.
  • (c) The Customer represents, covenants, and warrants that the Customer will use the Service only in compliance with the SaaS Agreement (including these Terms of Use), the Policies and all applicable laws and regulations.
  • (d) The Customer hereby agrees to indemnify and hold harmless the Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and legal fees) in connection with any Claim that arises from a breach of clause 3(b). Although the Company has no obligation to monitor the Customer’s use of the Service, the Company may do so and may prohibit any use of the Service it reasonably believes is in violation of clause 3(b).
  • (e) The Customer shall be responsible for obtaining and maintaining any ancillary equipment and ancillary services needed to connect to, access or otherwise use the Service, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, Equipment). The Customer shall also be responsible for maintaining the security of the Equipment, the Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of the Customer account or the Equipment.

4. Proprietary Rights

  • (a) Each party (Receiving Party) understands that the other party (Disclosing Party) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (referred to as Proprietary Information of the Disclosing Party).
  • (b) Proprietary Information of the Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of the Customer includes Customer Data.
  • (c) The Receiving Party agrees:
    • (i) to take reasonable precautions to protect such Proprietary Information, and
    • (ii) not to use (except in performance of the Service or as otherwise permitted in these Terms of Use) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or € is required to be disclosed by law.
  • (d) The Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to the Customer as part of the Service. The Customer grants the Company a royalty-free, worldwide, non-transferable and non-exclusive license to use the Customer Data as is reasonably required for the delivery of the Service and as otherwise set out in these Terms of Use. The license granted by the Customer in this clause 4(d) shall be revocable by the Customer on 10 days notice on or after the expiry or termination of the SaaS Agreement.
  • (e) The Company shall own and retain all right, title and interest in and to:
    • (i) the Service and all improvements, enhancements or modifications thereto;
    • (ii) any software, applications, inventions or other technology developed in connection with implementing the Service or support; and
    • (iii) all Intellectual Property Rights related to any the above.
  • (f) Subject to clause 4(g) and to the Company complying with the Privacy Act (Cth), the Customer grants the Company a world-wide, sub-licensable, royalty free right and license to collect, copy, modify and analyse general, non-identifiable data and other information (only) relating to the provision, use and performance of various aspects of the Service and related systems and technologies (including general, non-identifiable information concerning Customer Data and data derived therefrom) (Non-identifiable Data), and the Company may during and after termination or expiry of the SaaS Agreement:
    • (i) use the Non-identifiable Data to improve and enhance the Service and for other development, diagnostic and corrective purposes in connection with the Service and other Company offerings; and
    • (ii) publish or disclose the Non-identifiable Data in aggregate or any other de-identified or anonymous form.
  • (g) The license granted in clause 4(f) does not authorise or extend to:
    • (i) collection or use by the Company of commercially sensitive information of the Customer; or
    • (ii) the disaggregation or re-identification of any of the Non-identified Data (including using the Non-identified Data in conjunction with any other information to identify any individual or thing).

5. Intellectual Property

  • (a) The parties agree that other than as expressly provided in this clause, nothing in these Terms of Use transfers or grants to any party any right, title or interest in or to any Intellectual Property Rights, including any Background IP.
  • (b) Subject to clause 5(c), the Company grants the Customer a non-exclusive, non-transferable and revocable right to use the Avani Software Platform and the Service (including the Intellectual Property Rights contained therein) during the Initial Term and each Renewal Term (as applicable).
  • (c) All rights, title or interest (including Intellectual Property Rights) in and to the Avani Software Platform and any information or technology that may be provided to, or accessed by, the Customer in connection with the Customer’s use of the Avani Software Platform or the Service (other than Customer Data) is owned, and ownership shall be retained by, the Company or its licensors. To avoid doubt, the right to use the Avani Software Platform and/or the Service granted under clauses 2(b) and 5(b) does not transfer any ownership, rights, title or interest in and to the Platform IP and/or the Company’s Intellectual Property Rights.
  • (d) Any Platform IP Improvements, including any Intellectual Property Rights discovered, developed or otherwise coming into existence in connection with the provision of the Service will automatically vest in, and are assigned to, the Company.
  • (e) The Customer must not represent to anyone or in any manner whatsoever that they are the proprietor of the Avani Software Platform and/or the Platform IP.
  • (f) To the extent that any potential/suggested improvements or modifications to the Avani Software Platform or the Platform IP are provided by the Customer, the Customer acknowledges that any associated and/or resulting Intellectual Property vests with the Company.
  • (g) Each party (or its licensors, as applicable) retains ownership of all Intellectual Property Rights in its Background IP.
  • (h) All modifications and enhancements to a party’s Background IP are also to be treated as Background IP of that party. If a party modifies or enhances any part of the Background IP of the other party, that first party assigns to the other party all Intellectual Property Rights in those modifications and enhancements immediately from creation.
  • (i) The Customer agrees that the Company may refer to the Customer for the purposes of marketing or promoting the Company's business, including by use of the Customer’s business name, logos and/or trademarks on the Company’s website and other marketing materials, provided the Company has obtained the Customer’s consent and complies the Customer’s reasonable requests in respect of such use.

6. Confidential Information

  • (a) Subject to paragraph (c) below, a party which receives Confidential Information (Recipient) from the other Party (Discloser) must keep the Discloser’s Confidential Information confidential and not deal with it in any way that might prejudice its confidentiality.
  • (b) The Recipient’s obligations in relation to the Confidential Information will continue for as long as the Confidential Information is maintained on a confidential basis by the Discloser.
  • (c) Promptly as directed by the Discloser, the Recipient must return or destroy all copies of the Confidential Information, other than to the extent contained within board papers, board minutes, legal or other professional advice, or to the extent stored in an automated data-archival system.
  • (d) Paragraph (a) does not apply to Confidential Information which the Recipient:
    • (i) is required to be disclosed to comply with an order or subpoena of any governmental or administrative agency or court of competent jurisdiction; or
    • (ii) is required to be disclosed to comply with any applicable law or regulation, including the requirements of an applicable securities exchange.
  • (e) The Recipient agrees that any of the Recipient’s personnel to whom the Confidential Information is disclosed will be subject to substantially equivalent confidentiality obligations as the Recipient.
  • (f) The Recipient acknowledges that damages may be an inadequate remedy for breach of this clause 6 and that the Discloser may seek injunctive relief against the Recipient for any breach of this clause 6.
  • (g) Any Confidential Information is to be returned to the Discloser or destroyed (at the Recipient’s option), upon expiry or termination of this agreement under clause 11

7. Avani Site Connector

  • (a) The Customer acknowledges that delivery of the Services may require the installation of an Avani Site Connector at the Facility.
  • (b) In the event that installation of an Avani Site Connector is required, the Customer will enter into a General Services Agreement with the Company including in respect of the installation of an Avani Site Connector at the Facility and additional fees will be payable under that agreement.
  • (c) The Avani Site Connector remains the property of the Company at all times, and the Customer is granted no license or rights whatsoever in respect of software that is installed on the Avani Site Connector.
  • (d) In the event that installation of an Avani Site Connector is required, the Customer agrees to take all reasonably necessary steps to facilitate installation of the Avani Site Connector, including:
    • (i) complying with the applicable General Services Agreement;
    • (ii) providing the Company with permission to access the Facility to install and/or maintain the Avani Site Connector;
    • (iii) providing the Company with permission to access the Input Data via the Avani Site Controller; and
    • (iv) obtaining any reasonable or necessary third party permissions.
  • (e) The Company will be responsible for ongoing maintenance of the Avani Site Connector. Notwithstanding, the Customer will be liable for any costs or expenses resulting from the Customer’s interference with the Avani Site Connector, or failure to take reasonable steps to protect the Avani Site Connector from damage.
  • (f) The Customer must take reasonable steps to protect the Avani Site Connector from damage and acknowledges that the Company accepts no responsibility or liability in the event that the Service is interrupted as a result of the Customer’s failure to do so.

8. Hosting of Avani Software Code

  • (a) Unless agreed specifically in writing, any and all server-side software code for the Avani Software Platform will be hosted on a server or virtual server selected by the Company.
  • (b) The Company may, at its sole discretion, agree to host server-side software code for the Avani Software Platform on a virtual server instance identified by the Customer. In such case:
    • (i) the server-side software code for the Avani Software Platform on the virtual server instance identified by the Customer will at all times remain the property of the Company and subject to these Terms of Use, and in particular clauses 3(b), 3(d), 3(e) and 5 which are not derogated from whatsoever;
    • (ii) the Customer will ensure that the Company has access to the virtual server instance at all times during which Avani Software Platform code is stored on that virtual server instance, including following termination of the Service;
    • (iii) the Customer agrees not to copy, modify or otherwise attempt to access the Avani Software Platform code stored on that virtual server instance; and
    • (iv) the Customer indemnifies the Company against any direct damage and/or direct loss suffered by the Company as a result of deliberate misuse of such code.

9. Customer Data

  • (a) The Customer may request to download some or all of the Customer Data, and the Company will facilitate such download in an accessible, industry standard format within 14 days of the request.
  • (b) On termination or expiry of the SaaS Agreement, or otherwise upon conclusion of delivery of the Service, the Customer will be provided with a 90-day period in which to download the Customer Data. After that 90-day period, except for the Non-identified Data licensed under clause 4(f), the Company will delete the Customer Data.
  • (c) The Company does not require that Personal Information be collected via the Input Data, and the Customer agrees to take reasonable steps to avoid the inclusion of Personal Information in the Input Data.
  • (d) To the extent that the Customer collects Personal Information, which becomes part of the Customer Data, the Customer is responsible for managing such Personal Information in accordance with its own privacy policies. The Company confirms that it:
    • (i) will not share any such Personal Information with third parties;
    • (ii) will deal with any Personal Information in accordance with the Privacy Act (Cth);
    • (iii) will notify the Customer as soon as reasonably practicable of any Personal Information incorrectly included in the Input Data or Customer Data, as well as any reportable data breaches and will provide the Customer with reasonable information to enable it to comply with its obligations under the Privacy Act (Cth); and
    • (iv) will assist the Customer with any reasonable request for assistance to enable the Customer to comply with instructions of the Privacy Commissioner.

10. Payment of Fees

  • (a) The Customer will pay the Company the applicable fees described in the SaaS Agreement for the Service in accordance with these Terms of Use (Fees).
  • (b) If during the Initial Term or the Renewal Term the Customer’s Facility increases in size, in terms of number and/or size of the systems to be monitored, beyond the Facility Size specified in the SaaS Agreement, then the parties will seek to agree an increase to the Fees payable under the SaaS Agreement on a pro-rata basis to accommodate that increase. If the parties cannot agree such additional fees, the Company will be entitled to terminate the SaaS Agreement including these Terms of Use and will be entitled to its cost reasonably incurred as a result of the early termination.
  • (c) The Company reserves the right to change the Fees or other applicable charges and to institute new charges and Fees in the Renewal Term, upon ninety (90) days prior notice to the Customer).
  • (d) If the Customer believes that the Company has billed the Customer incorrectly, the Customer must contact the Company no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to the Company’s customer support department.
  • (e) The Company will provide the Customer with a tax invoice in accordance with GST Law in relation to Fees payable under this clause, in which case, full payment for invoices issued in any given month must be received by the Company thirty (30) days after receipt of the invoice..
  • (f) If the Customer does not make a payment by the date stated in an invoice, without prejudice to the Company’s rights in clause 11, the Company is entitled to do any or all of the following:
    • (i) charge interest on the outstanding amount at a rate which is the lesser of:
      • (A) 2% per year above the base lending rate of Reserve Bank of Australia; and
      • (B) the maximum rate permitted by law, accruing daily; and
    • (ii) suspend the provision of any further Services (or any part of the Services).
  • (g) Unless otherwise indicated, amounts payable under the SaaS Agreement do not include GST. In relation to any GST payable for a taxable supply, the other party must pay the GST subject to receipt of a valid tax invoice. If either party is entitled under the SaaS Agreement (including these Terms of Use) to be reimbursed or indemnified by the other party for a cost or expense incurred in connection with the SaaS Agreement (including these Terms of Use) the reimbursement or indemnity payment will be reduced by any input tax credit that may be claimed by the party entitled to be reimbursed or indemnified for that cost or expense, or by its representative member.

11. Term and Termination

  • (a) Subject to earlier termination as provided below, the Initial Term as specified in the SaaS Agreement shall be automatically renewed for additional periods of the same duration as the Initial Term (each a Renewal Term), unless either party requests termination at least sixty (60) days prior to the end of the Initial Term or Renewal Term (as applicable).
  • (b) A party may terminate the SaaS Agreement (including these Terms of Use) immediately upon the happening of any of the following events:
    • (i) if the other party commits a material breach of the SaaS Agreement (including these Terms of Use) which is incapable of remedy, or if capable of remedy has not been rectified within 28 days of notice of the breach. For the avoidance of doubt, failure by the Customer to make a payment as required by the SaaS Agreement (including these Terms of Use) is a material breach as is failure by the Company to maintain Minimum Monthly Uptime as required by the Service Level Agreements; or
    • (ii) subject to the Corporations Act:
      • (A) if the other party enters into a deed of arrangement or an order is made for it to be wound up;
      • (B) if an administrator, receiver or receiver/manager or a liquidator is appointed to the other party pursuant to the Corporations Act;
      • (C) if the other party is unable to pay its debts as and when they fall due; or
      • (D) if the other party would be presumed to be insolvent by a court in any of the circumstances referred to in the Corporations Act.
  • (c) The Customer will pay in full for the Service up to and including the last day on which the Service is provided and the Customer Data will be dealt with in accordance with clause 9(c).
  • (d) Any accrued rights to payment and the following clauses of these Terms of Use survive termination:
    • (i) Clause 1 “Definitions and Interpretation”:
    • (ii) Clause 4 “Proprietary Rights”;
    • (iii) Clause 5 “Intellectual Property”
    • (iv) Clause Error! Reference source not found. “Confidential Information”;
    • (v) Clause 11 “Term and Termination”;
    • (vi) Clause 12 “Warranty and Disclaimers”;
    • (vii) Clause 13 “Indemnity”;
    • (viii) Clause 14 “Limitation on Liability”;
    • (ix) Clause 16 “Dispute Resolution and Mediation”;
    • (x) Clause 18 “General”.

12. Warranty and Disclaimer

  • (a) The Company shall use best efforts to provide the Service in a manner which minimises errors and interruptions in the Service and shall perform its obligations under these Terms of Use in a professional and proper manner. The Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by the Company or by third-party providers, or because of other causes beyond the Company’s reasonable control, but the Company shall use best efforts to provide advance notice of any scheduled service disruption.
  • (b) While all due care has been taken, the Company does not warrant that the operation of the Service will be uninterrupted or error free or that any third party components of the Service, will be accurate or error free or that the Service will be compatible with any application, program or software not specifically identified as compatible by the Company. The Customer acknowledges that accuracy of information provided via the Service is limited by accuracy of underlying data that is provided to the Company.
  • (c) To the maximum extent permitted by law, no further warranty, condition, undertaking or term, express or implied, statutory or otherwise as to the condition, quality, performance or fitness for purpose of the Avani Software Platform provided hereunder is given or assumed by the Company other than as required at law.
  • (d) The Company makes no representations, warranties or guarantees:
    • (i) that content available on, or produced by or via, the Avani Software Platform is accurate, complete, reliable, current, error-free or suitable for any particular purpose; or
    • (ii) that the Avani Software Platform and/or the Service are or will be free from viruses, worm, trojan or other malicious code; or
    • (iii) in relation to any results/outcomes that may be obtained from using the Avani Software Platform of the Service.
  • (e) The Company’s obligation and the Customer’s exclusive remedies during the Initial Term or Renewal Term (as applicable) are as set out in the Service Level Agreements.
  • (f) The Customer acknowledges and accepts that it is the Customer’s responsibility to ensure that:
    • (i) the facilities and functions of the Avani Software Platform and/or the Service meets the Customer’s requirements;
    • (ii) any and all permissions required for the Company to access and use the Input Data have been obtained;
    • (iii) any and all hardware or software that is used to provide the Input Data to the Company is functioning appropriately;
    • (iv) the Avani Software Platform and the Service are appropriate for the specific circumstance of the Customer; and
    • (v) the Company does not purport to provide any legal, taxation, accountancy or other such advice by providing the Service under the SaaS Agreement (including these Terms of Use).
  • (g) The Company will not be liable for any failure of the Service to provide any function not described in the documentation (provided online as part of the Service) or any failure attributable to:
    • (i) failure of any 3rd party hardware or 3rd party service;
    • (ii) any modification to the Service by the Customer;
    • (iii) abuse or misapplication of the Service by the Customer;
    • (iv) use of the Service with other software or equipment without the Company’s written consent, not to be unreasonably withheld;
    • (v) use other than in accordance with these Terms of Use; or
    • (vi) malicious attack on the Service by a third party.
  • (h) If, upon investigation, a problem with the Service is determined not to be the Company’s responsibility, the Company may invoice the Customer immediately for all reasonable costs and expenses incurred by the Company in the course of such investigation.

13. Indemnity

  • (a) Each party will at all times indemnify and hold the other party harmless from any Loss occasioned by or arising directly or indirectly from:
    • (i) a breach by that party of its confidentiality obligations under clause 6 of these Terms of Use;
    • (ii) a breach by that party of its privacy obligations under clause 9(d) of these Terms of Use;
    • (iii) any wilful misconduct or fraud of that party.
  • (b) Each party agrees to indemnify, defend, and hold the other party harmless from and against thirdparty Claims to the extent the Claims relate to an allegation that the Intellectual Property Rights or the Proprietary Information (as applicable) of the indemnifying party (when used by the indemnified party in accordance with the SaaS Agreement, including these Terms of Use) infringe the Intellectual Property Rights or other rights of a third party.
  • (c) Each party’s indemnification and defence obligations under clause 13 are contingent upon the indemnified party:
    • (i) promptly giving notice of the Claim to the defending/indemnifying party once the Claim is known;
    • (ii) giving the defending/indemnifying party sole control of the defence and settlement of the Claim and not compromising or settling the Claim without the defending/indemnifying party’s approval (provided the defending/indemnifying party must not settle such Claim unless the settlement unconditionally releases the other party of all liability and does not adversely affect the other party’s business or service in any material respect); and
    • (iii) providing appropriate information and reasonable cooperation to the defending/indemnifying party in connection with the Claim.

14. Limitation on liability

  • (a) Except in the case of death or personal injury caused by the Company's negligence, the liability of the Company under or in connection with the SaaS Agreement and these Terms of Use whether arising in contract, tort, negligence, breach of statutory duty or otherwise is limited to the Fees paid by the Customer to the Company for the Service in the 12 months prior to the event or circumstance that gave rise to the liability, in each case, whether or not the Company has been advised of the possibility of such damages.
  • (b) Neither party is liable to the other party in contract, tort, negligence, breach of statutory duty or otherwise for any Loss that does not arise naturally and according to the usual course of things as a result of a breach of the SaaS Agreement or these Terms of Use, including any economic loss or other loss of turnover, profits, business and/or goodwill (Consequential Loss), whether or not such Consequential Loss may reasonably be supposed to have been in the contemplation of the parties at the time they entered into the SaaS Agreement.
  • (c) Any limitations, caps or exclusions on a party’s liability set out in the SaaS Agreement (including these Terms of Use) do not apply to Claims:
    • (i) under or in respect of the party’s indemnity obligations under the SaaS Agreement (including these Terms of Use); or
    • (ii) under or in respect of that party’s confidentiality or privacy obligations either under the SaaS Agreement (including these Terms of Use) or at law; or
    • (iii) related to that party’s wilful misconduct or fraud.
  • (d) If either party is found liable to the other (whether in contract, tort or otherwise), and the claiming party and/or a third party has contributed to the Loss, the liable party shall only be liable to the proportional extent of its own contribution.
  • (e) Notwithstanding the above, this clause 14 is subject to any special conditions set out in the SaaS Agreement.

15. Insurance

  • (a) Each party will take out public liability insurance in the amount of $20,000,000 during the Initial Term or Renewal Term (as applicable).
  • (b) The Company will also take out professional indemnity insurance in the amount of $2,000,000.

16. Dispute Resolution and Mediation

  • (a) If a dispute arises out of or relates to the SaaS Agreement or these Terms of Use (Dispute), neither party may commence any legal proceedings in relation to the Dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).
  • (b) A party to the SaaS Agreement claiming that a dispute has arisen must give written notice to the other party detailing the nature of the Dispute, the desired outcome, and the action required to resolve the Dispute (Dispute Notice).
  • (c) On receipt of the Dispute Notice by the other party, the parties must within seven days of the Dispute Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree.
  • (d) If for any reason whatsoever, the Dispute has not been resolved within 21 days after the date of the Dispute Notice, the parties must participate in a mediation. If the parties agree upon the selection of a mediator, the parties will appoint that person as mediator to conduct the mediation. If, after 14 days, the parties cannot agree upon the selection of a mediator, the parties will request that an appropriate mediator be nominated by the President of the Law Society of New South Wales, and the parties will appoint the nominated person as mediator to conduct the mediation.
  • (e) It is agreed that the mediation will be held in New South Wales, Australia.
  • (f) The parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing, undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The parties must each pay their own costs associated with the mediation.
  • (g) All communications concerning negotiations between the parties arising out of and in connection with this dispute resolution clause 16 are “without prejudice” and confidential, and to the fullest extent possible, must be treated as "without prejudice" communications.
  • (h) If thirty (30) days have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either party may ask the mediator to terminate the mediation and the mediator must do so.
  • (i) In the event that the Dispute is not resolved at the conclusion of the mediation, either party may institute legal proceedings concerning the subject matter of the Dispute.

17. Force Majeure

  • (a) Neither party will be liable to the other for any delay or failure to perform its obligations the SaaS Agreement (including these Terms of Use) during the time and to the extent that such performance is delayed or prevented, wholly or substantially, by reason of any Force Majeure Event provided that the affected party must:
    • (i) notify the other party as soon as practicable after the Force Majeure Event occurs and provide full information concerning the Force Majeure Event; and
    • (ii) use its best endeavours to remedy or mitigate the effect of the Force Majeure Event and minimise the impact on its obligations and the other party.
  • (b) Clause 17(a) does not apply to any obligation to pay money for Services previously performed and invoiced.
  • (c) The affected party will automatically be granted an extension of any relevant time for a period equal to the duration of the relevant Force Majeure Event, provided that if the Company is unable to provide all, or a substantial part of the Service in accordance with the SaaS Agreement (including these Terms of Use) for a continuous period of more than 45 days then either party will have the right to terminate the SaaS Agreement (including these Terms of Use) by notice in writing with immediate effect.

18. General

18.1. Amendments

  • (a) Subject to paragraph (b), the SaaS Agreement including these Terms of Use and/or the Policies may only be amended in writing signed by duly authorised representatives of both parties.
  • (b) If the Company proposes to amend these Terms of Use and/or the Policies, it must follow the below procedure:
    • (i) The Company must give the Customer at least thirty (30) days’ notice in writing (by email) of any proposed amendments to these Terms of Use and/or the Policies;
    • (ii) If the Customer, acting reasonably, considers that the proposed amendments to these Terms of Use and/or the Policies:
      • (A) may be detrimental to the Customer; or
      • (B) could interfere with the Customer’s enjoyment of the Services, then, the Customer may elect to terminate the SaaS Agreement, or each Service then provided by the Company under the SaaS Agreement affected by the proposed amendments by providing the Company with no less than ten (10) Business Day’s prior written notice.
  • (c) If the Company follows the procedure in paragraph (b), and the Customer does not elect to terminate the SaaS Agreement or the Service or Services under paragraph (b)(ii), then these Terms of Use and/or the Policies shall be taken to have been amended in accordance with the notice given by the Company under paragraph (b)(i).

18.2. Assignment

  • (a) Subject to clause 18.2(b), neither party may assign, delegate, subcontract, mortgage, charge or otherwise transfer any or all of its rights and obligations under the SaaS Agreement (or these Terms of Use) without the prior written agreement of the other party.
  • (b) The parties agree that either party may assign and transfer all its rights and obligations under the SaaS Agreement (including these Terms of Use) to:
    • (i) any person to which it transfers all or substantially all of its assets, provided that the assignee undertakes in writing to the other party to be bound by the obligations of the assignor under the SaaS Agreement (including these Terms of Use); or
    • (ii) a related body corporate within the meaning of the Corporations Act 2001 (Cth), providing that the proposed assigning party gives the other party 30 days written notice of the proposed assignee and the other party does not object to the assignment (acting reasonably).

18.3. Entire agreement

  • (a) The SaaS Agreement (including these Terms of Use) contains the whole agreement between the parties in respect of its subject matter.
  • (b) The parties confirm that they have not entered into the SaaS Agreement (including these Terms of Use) on the basis of any representation that is not expressly incorporated into the SaaS Agreement (including these Terms of Use).

18.4. Waiver

  • (a) No failure or delay by either party in exercising any right, power or privilege under the SaaS Agreement (including these Terms of Use) will impair the same or operate as a waiver of the same nor will any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege.
  • (b) The rights and remedies provided in the SaaS Agreement (including these Terms of Use) are cumulative and not exclusive of any rights and remedies provided by law.

18.5. Agency, partnership etc

  • (a) The SaaS Agreement (including these Terms of Use) will not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for.
  • (b) Neither party will have, nor represent that it has, any authority to make any commitments on the other party's behalf.

18.6. Further assurance

  • (a) Each party to the SaaS Agreement (including these Terms of Use) will at the request and expense of the other execute and do any deeds and other things reasonably necessary to carry out the provisions of the SaaS Agreement (including these Terms of Use).

18.7. Severance

  • (a) If any provision of the SaaS Agreement (including these Terms of Use) is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision will, to the extent required, be severed and rendered ineffective as far as possible without modifying the remaining provisions of the SaaS Agreement (including these Terms of Use), and will not in any way affect any other circumstances of or the validity or enforcement of the SaaS Agreement (including these Terms of Use).

18.7. Severance

  • (a) If any provision of the SaaS Agreement (including these Terms of Use) is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision will, to the extent required, be severed and rendered ineffective as far as possible without modifying the remaining provisions of the SaaS Agreement (including these Terms of Use), and will not in any way affect any other circumstances of or the validity or enforcement of the SaaS Agreement (including these Terms of Use).

18.8. Announcements

  • (a) Subject to clauses 5(i) and 18.8(b), no party will issue or make any public announcement or disclose any information regarding the SaaS Agreement (including these Terms of Use) unless prior to such public announcement or disclosure it furnishes the other party with a copy of such announcement or information and obtains the approval of the other party to its terms.
  • (b) No party will be prohibited from issuing or making any such public announcement or disclosing such information if it is necessary to do so to comply with any applicable law or the regulations of a recognised stock exchange.

18.9. Notices

  • (a) Any notice or other communication issued under or connected with the SaaS Agreement (including these Terms of Use) must be issued in writing. In addition to any other method of service provided by law, the notice may be sent by pre-paid post to the address of the addressee, or sent by email to the addressee as set out in the SaaS Agreement.

18.10. Law and jurisdiction

  • (a) The SaaS Agreement (including these Terms of Use) takes effect, is governed by, and will be construed in accordance with the laws from time to time in force in New South Wales, Australia. The parties submit to the non-exclusive jurisdiction of the courts of New South Wales.