WAITOC End User Licence Agreement
In consideration of the User complying with the terms of this Agreement, Biznostics grants to the User a non-exclusive, non-transferable, non-sublicensable licence to use and access the Platform as set out in this Agreement.
The terms in this document constitute an offer by Biznostics to a User. The User may accept this Agreement and create a binding agreement by:
(a) conveying acceptance of these Terms (for example, via a tick box when accessing the Platform);
(b) accessing the Platform; or
(c) creating an account on the Platform.
2.2 User as an employee
If the individual using or accessing the Platform does so on behalf of their employer or a business entity, the individual, in their individual capacity:
(a) represents and warrants that they are authorised to act on behalf of that employer or the business entity;
(b) represents and warrants that they are authorised to bind the employer or business entity, and its representatives, to this Agreement; and
(c) agrees they are jointly and severally liable with that employer or business entity.
3.1 Grant of licence
(a) The licence to use the Platform in this Agreement is granted to the User as a member of WAITOC Association Incorporated (ABN 88 206 818 729) (“WAITOC”), or an employee or associate of an employer or business entity who is a member of WAITOC, and at the request of WAITOC.
(b) In addition to any other rights of termination under this Agreement, Biznostics may terminate this Agreement, and the licence to use the Platform, immediately if:
(i) the User (or its employer or relevant business entity) ceases to be a member of WAITOC; or
(ii) WAITOC no longer wishes to make the Platform available to its members.
(c) There is no fee payable by the User to Biznostics on account of the grant of the licence in clause 1.
(d) A reference in this Agreement to the User’s business is the User’s tourism business which is supported by WAITOC.
3.2 Reporting and information sharing
(a) Biznostics may provide reporting information to WAITOC in respect of the User’s usage of the Platform including in accordance with clause 5.4. The User acknowledges that this information may include Personal Information.
(b) Biznostics may request information from WAITOC about the User. This information may include whether the User is a member of WAITOC. The User acknowledges that this information may include Personal Information.
(a) The licence to use the Platform is at the request of WAITOC and is provided to the User as a member of WAITOC as part of the User’s membership of WAITOC. Accordingly, any Claim the User may have in respect of this Agreement or the Platform is against WAITOC.
(b) In addition to any other provisions of this Agreement which reduce the liability of Biznostics to the User, and to the maximum extent permitted by law, the User:
(i) acknowledges and agrees that Biznostics is not liable to the User for any Claim in respect of this Agreement or the Platform;
(ii) releases Biznostics for any Claim in respect of this Agreement or the Platform; and
(iii) indemnifies Biznostics in respect of any Claim brought by the User contrary to this clause 3.3(b).
4. USER’S OBLIGATIONS
The User must strictly comply with all the obligations in this clause 4, and must not permit any third party to do anything prohibited by this clause 4.
4.1 Access, security and permitted use
(a) The User will only allow the Platform to be used by the User.
(b) The Platform may only be used for the purpose of the User’s business and for no other purpose.
(c) The User must take all reasonable precautions to ensure the security of access to the Platform.
(d) The User must not, under any circumstances, allow any third party or any person (other than as a User in their own right) to access or use the Platform for any purpose.
(e) The User agrees to inform Biznostics immediately if it becomes aware of any unauthorised use or access of the Platform by any person.
(f) The User is, at all times, responsible for the use of its account on the Platform, irrespective of who is using it, even if it is used without the User’s permission.
4.2 Permitted Copies
(a) The User may store one copy of the Content off-line and off-site in a secured location within premises that is owned or leased by the User in order to provide a back-up in the event of destruction by fire, flood, acts of war, acts of nature, vandalism or other incident.
(b) Where Content is provided or made available to the User, the User may make such additional copies of the Content as the User reasonably requires for the User’s business at the User’s usual place of business, provided that such copies will be owned by Biznostics and bear notices of Biznostics’ ownership of copyright.
(c) In no event or circumstances may the User make a copy (including as a backup) of the Platform or Content to circumvent the usage or other limitations set out in this Agreement.
The User must not:
(a) assign, sublicense, sell, distribute, transfer, pledge, lease, rent, lend, share or export the Platform, the Content or User’s rights under this Agreement;
(b) alter or circumvent any copy protection mechanisms in the Platform or Content;
(c) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Platform;
(d) implement or use any method or mechanism designed to enable product functionality not available in the Platform but available in:
(i) other Biznostics products; or
(ii) other Biznostics releases of the same product;
(e) modify, adapt, translate or create derivative works based on the Platform or Content (including datasets, CSV files, tables, spreadsheets);
(f) reverse engineer any part of the Platform in order to:
(i) build a competitive product or service;
(ii) build a product using similar ideas, features, functions or graphics of the Platform; or
(iii) copy any ideas, features, functions or graphics of the Platform;
(g) use, or allow the use of, the Platform or the Content on any project or to provide a service (whether or not any charge is made) to any third party;
(h) allow or permit anyone to use or have access to the Platform or Content;
(i) copy or install the Platform other than as expressly provided for in this Agreement;
(j) not to do anything which will have an adverse effect on the Platform or Biznostics; or
(k) take any action, or fail to take action, that could adversely affect the trademarks, service marks, patents, trade secrets, copyrights or other Intellectual Property Rights of Biznostics or any third party with Intellectual Property Rights in the Platform (each, a “Third Party Licensor”).
4.4 Appropriate conduct
The User must not:
(a) send spam or otherwise duplicative or unsolicited messages;
(b) send or store infringing, obscene, threatening, libellous, or otherwise unlawful or tortuous material, including material harmful to children;
(c) transmit, store, insert, or activate any virus, Trojan horse or other malware or computer programming code, including source and object code, which may impair, deny or otherwise adversely affect the use of, access to, or security of the Platform;
(d) interfere with or disrupt the integrity, security or performance of the Platform or its related systems, networks or the data contained therein;
(e) not to engage in or permit any form of deceptive, misleading, fraudulent or unlawful activity or conduct in relation to the use of the Platform or in relation to Biznostics;
(f) not make any false, misleading or deceptive representations in connection with the Platform; or
(g) not to publish or otherwise communicate any review of, or information about, the Platform (which is not publicly available) to any third party without the prior written consent of Biznostics, except as specifically provided for in an agreement with Biznostics, including this Agreement.
5. THE PLATFORM
5.1 Subscription License and Platform Not Available Locally
(a) The User agrees and accepts that the Platform may only be accessible using the Internet and the Platform (or any part of it) may not be either partially or fully accessible from the User’s device.
(b) The User agrees and accepts:
(i) the speed of response from the Platform is dependent on the User’s internet connection and device, and the performance of the Platform may be affected by such external factors as bandwidth, latency, speed of connection, connection stability, and the User’s compatible devices; and
(ii) it is solely responsible for ensuring it has, at all relevant times, sufficient internet-connectivity (including bandwidth, latency, speed and stability) and devices in order for them to use the Platform.
(c) The User is solely responsible for supplying and maintaining the software, hardware, operating system, network connections and other operational requirements required to access the Platform.
(d) The User acknowledges and agrees that its failure to comply with clause 5.1(c) may affect its ability to successfully use the Platform.
5.2 Parts of Biznostics Controlled by Third Parties
The User agrees and accepts that the Platform is or may be from time to time operated from servers owned and controlled by a third party. As such, the User acknowledges that certain functions are out of Biznostics’ control, including:
(a) databases; and
(b) Cloud-based infrastructure,
and that, unless contrary to the applicable law, Biznostics is not responsible for any event or action caused by any third party contemplated in this clause 5.2.
5.3 Maintenance, Updates, Changes, Inaccessibility and Errors
Subject also to clause 7:
(a) Biznostics reserves the right to make some or all of the Platform inaccessible from time to time as is required for updates, maintenance and/or upgrades. Biznostics will use reasonable endeavours to schedule planned updates, maintenance and/or upgrades outside of key business operations’ periods.
(b) From time to time, without notice, access to all or part of the Platform may be disrupted or limited. During such an interruption, Biznostics will use its reasonable endeavours to restore access to the Platform as soon as practicable.
(c) Biznostics reserve the right to correct any errors on the Platform, upgrade, maintain, tune, backup, amend, add to or remove features from, redesign, improve or otherwise alter the Platform at Biznostics’ sole and absolute discretion.
(d) The User acknowledges and agrees that Biznostics will not be liable for any loss or damage that the User or any other person incur by any changes made to the Platform and/or the User not being able to access the Platform or any part of it.
5.4 Collection of usage, system and other information
(a) The Platform may include mechanisms:
(i) to collect limited data and information from the User’s device which access the Platform and transmit it to Biznostics; and
(ii) to locally cache such data and information on the User’s computer.
(b) The data in clause 5.4(a) (“AM Info”) may include details of devices, network equipment, details of the operating systems in use on such computer equipment, the location of the User’s devices and the profile and extent of the User’s use of the different elements of the Platform.
(c) Biznostics may use the AM Info to:
(i) model the profiles of usage, hardware and operating Platforms in use collectively across its user base in order to focus development and support;
(ii) provide targeted support;
(iii) ensure that the usage of the Platform by the User is in accordance with the Agreement and does not exceed any user number or other limits on its use; and
(iv) advise the User about service issues such as available updates.
5.5 Security Responsibilities
Biznostics will take reasonable steps to ensure the Platform is secure from unauthorised access consistent with generally accepted industry standards.
5.6 Third Party Content
The inclusion of any third-party link does not imply any endorsement or recommendation of a linked website by Biznostics. Biznostics will not be responsible for any third-party advertising content displayed in the Platform. Any link on the Platform to a third-party website, or decision to accept any third-party offer, is entirely at the User’s own risk.
5.7 Third Party Integrations
(a) Any integration, including be it programmatic or by linking, or by any other method to another software or hardware system of any kind does not imply endorsement or recommendation of that system.
(b) Biznostics will not be liable for any loss or damage that the User or any other person may incur by use of any other system.
(c) Biznostics accepts no responsibility for any aspect of any third-party system that may be integrated.
5.8 Suspension of Access
Biznostics may terminate or suspend access to the Platform to the User indefinitely and without compensation if the User uses the Platform, or appears to Biznostics to be intending to use the Platform, in a manner reasonably deemed inappropriate by Biznostics or which breaches the terms of this Agreement.
6. THE CONTENT
The User acknowledges and agrees that:
(a) the Output is based on the use of, and data input into, the Platform by the User as well as third party information, and, subject to clause 12, Biznostics makes no warranties or representations as to the accuracy, completeness, or suitability for a particular purpose of the Output;
(b) all Intellectual Property Rights in the Output vests in Biznostics, and Biznostics grants the User a non-exclusive, irrevocable, perpetual, royalty free licence to use the Output, subject to the content including a copyright disclaimer required by Biznostics;
(c) the Output is designed to be used only by a professional in conjunction with that professional’s judgement and other information relevant to the User’s business, and should not be used or relied upon on its own for providing advice or making any operational or business decisions;
(d) the Output provided by the Platform may be inaccurate, incorrect, or incomplete;
(e) the User will not rely on the Output in any situation in which there is a threat or risk of harm to a person’s health or life; and
(f) the User will not use the Output as the basis for making any decisions which may materially affect the User’s business or its ongoing operation.
7. MAINTENANCE, UPDATES, CHANGES TO THE PLATFORM
7.1 Platform Updates
(a) Biznostics may, in its sole discretion, make modification, enhancements, updates or new releases of the Platform from time to time in order to, amongst other matters, enhance or improve the functionality or operation of the Platform or comply with legislative requirements (“Platform Updates”).
(b) Biznostics will use reasonable endeavours to ensure that any future version of the Platform is backwards-compatible with at least the most recent previous version, but the parties acknowledge that this may not always be possible or practicable with any or all Platform Updates.
(c) Biznostics may notify the User of Major Updates to the Platform prior to the updated Platform being released, published or, in the case of an emergency update, as soon as practicable.
(d) Minor updates may occur to the Platform at any time and Biznostics is not required to notify the User though may do so at its own discretion.
(e) Biznostics make any Platform Updates available for access and use by the User as soon as reasonably practicable following the creation and general release of such Platform Updates.
(f) The User acknowledges there may be downtime for the Platform, including where Biznostics is required to configure and upload a Platform Update.
(g) The Platform Updates will be provided to the User through the Platform free of charge.
(h) Use of the Platform Updates by the User through the Platform will be subject to the same terms and conditions as use of the Platform under this Agreement.
(i) The parties acknowledge that Biznostics may be required to update the Platform to remain in compliance with either Apple Inc. and the App Store, and/or Google Inc. and the Google Play Store’s standard (collectively “the Third-Party App Standards”). The User agrees that Biznostics will not be liable for incompatibility of any Platform Updates to the Platform should that modification or update be required to remain compliant the Third-Party App Standards.
8. BIZNOSTICS’S OBLIGATIONS
8.1 Biznostics’ Obligations
Subject to the User complying with its obligations set out in the Agreement, for the duration of the Term, Biznostics will endeavour to develop, host and maintain the Platform.
8.2 Representations and Warranties of Biznostics
Biznostics represents and warrants that:
(a) the Platform is developed using a standard of care and skill expected of an entity who regularly acts in the capacity of an “app developer or software developer”;
(b) in providing access to the Platform it will comply with the law and with industry standards in accordance with relevant Australian law;
(c) in providing to the Platform, it will not be infringing upon the Intellectual Property Rights of any third party; and
(d) in the event that Biznostics sells its business, Biznostics will use its best endeavours to ensure the new owners continue to provide the Platform under the terms of the Agreement.
(a) A party shall treat all Confidential Information disclosed by the other party as confidential and shall not, without the prior written consent of the disclosing party:
(i) disclose or permit the same to be disclosed to any third party (except to the extent required by law, a stock exchange or in connection with legal proceedings relating to this Agreement, but only after first notifying the other party to give it an opportunity to protect the Confidential Information) and agree to take all reasonable steps to maintain the confidentiality of the Confidential Information; or
(ii) use the Confidential Information for any purpose other than that for which it is given.
(b) It shall be the responsibility of each party to ensure that:
(i) Confidential Information is only disclosed to those of its officers, employees or contractors in their capacities as such on a strictly need to know basis and have such officers, employees and contractors comply with the obligations of confidentiality imposed upon them by this clause 9 as if personally bound by such obligations as though parties to this Agreement; and
(ii) the officers, employees or contractors referred to in clause 9(b)(i) execute such documentation as required by the owner of the Confidential Information acknowledging their obligations of confidentiality, which shall provide that the obligations of confidentiality survive notwithstanding that any of the above mentioned officers, employees or contractors cease to be employed or engaged by the respective parties.
(c) Notwithstanding any other provision of this clause, a party may disclose the terms of this Agreement (other than Confidential Information of a technical nature) to its related companies, solicitors, auditors, insurers and accountants.
9.2 Breach notifications
A party must immediately notify the disclosing party in writing, giving full details known to it, when it becomes aware of any actual, suspected, likely or threatened:
(a) breach by any person of any obligation in relation to the Confidential Information; or
(b) theft, loss, damage or unauthorised access, use or disclosure of or to any Confidential Information.
The obligations under this clause 9 survive termination of this Agreement.
(c) Biznostics reserves the right to immediately terminate this Agreement if the User is in breach of clause 10.1(a).
10.2 Privacy Obligations
If Personal Information is disclosed to a party to this Agreement in the course of this Agreement, that party agrees that it will not:
(a) sell the Personal Information to any third party; or
(b) distribute or disclose Personal Information to any third party other than:
(i) to its personnel and/or related bodies corporate; or
(ii) third party servers;
who will only use the Personal Information for the purposes contemplated by this Agreement.
10.3 The Privacy Act
For the purposes of clause 10.2 the term “disclose” is to have the same meaning as defined in the Privacy Act.
11. INTELLECTUAL PROPERTY
11.1 Biznostics’ Intellectual Property
(a) All title, ownership rights and Intellectual Property Rights, including copyright in relation to Platform is owned or used under licence by Biznostics.
(b) Without Biznostics’ express prior written consent, the User undertakes that it will not and will not permit any person to:
(i) directly or indirectly alter, replicate, copy, recreate, create derivative work from, decompile, reverse engineer, reserve assemble, reserve compile, enhance, interfered with or with part of the Platform and/or the Software or otherwise obtain, modify or use any source or object code, architecture, or algorithms contained in the Platform or any documentation associated with the Platform;
(ii) interact with any Biznostics trademark (whether registered or not) that could cause any adverse effect to Biznostics’ ownership and/or rights to the intellectual property; or
(iii) copy or reproduce, or create an adaptation or translation of, all or part of the Platform in any way, except to the extent that reproduction occurs automatically through the ordinary use of the Platform and/or Software in accordance with this Agreement;
(iv) incorporate all or part of the Platform and/or Software in any other webpage, site, application or other digital or non-digital format for purposes other than marketing and/or training;
(v) (subject to other rights explicitly granted under this Agreement) sell, license, sublicense, lease, rent, distribute, disclose, permit access to, or transfer to any third party, whether for profit or without charge, any portion of the Platform and/or Software on any medium;
(vi) do anything that will infringe the Intellectual Property Rights of any third party; or
(vii) attempt to do any of the above.
(c) Without limiting the foregoing, the User also acknowledges in any modifications, improvements or enhancements suggested by or contributed to or provided by the User in regard to the Platform shall immediately vest in Biznostics.
11.2 The User’s Intellectual Property
(a) Nothing in this Agreement will transfer ownership of material and data inputted into the Platform by the User to Biznostics.
(b) The User grants Biznostics a non-exclusive, royalty free, irrevocable license to use of any material and data inputted by the User in connection with this Agreement.
(c) Biznostics is not obliged to retain any material or data inputted into the Platform by the User.
11.3 Threats and action
If the User becomes aware of any infringement or threatened infringement of any Intellectual Property Rights, the User must give notice pursuant to clause 17.1 to Biznostics including full particulars of the infringement. Biznostics may, in its absolute discretion, institute and prosecute an action against the infringer.
11.4 Provide all assistance
The User must each execute all documents and do all things reasonably necessary to aid and co-operate in the prosecution of any actions brought by Biznostics under this clause.
11.5 Survival of Obligation
The operation of this clause 11 survives the termination of this Agreement.
12.1 Exclusion of express warranties
(a) Subject to the obligations of Biznostics in respect of the provision of the Platform under this Agreement, Biznostics makes no warranties or guarantees:
(i) that the Platform will be accessible at all times, uninterrupted or error free;
(ii) the Output is fit for purpose, or of a particular quality;
(iii) that any of the Platform is without bugs or viruses;
(iv) that the Platform is immune to unauthorised access or security breach; and
(v) in respect of the retention of, or continued accessibility of, any data.
12.2 User Acknowledgements
The User acknowledges and agrees that:
(a) Biznostics is not responsible for the conduct or activities of any other user of the Platform;
(b) Biznostics is not an accounting firm, legal firm or financial advisor, and the use of the Platform or the Output does not constitute the provision of accounting, tax, legal or financial advice;
(c) the User is solely responsible for complying with all applicable accounting, tax, financial advice, and other laws; and
(d) the User is entering into, and acquiring goods and/or services under, this Agreement for commercial purposes and not for domestic, personal or household use.
12.3 Consumer and small business laws
(a) If the User is a “consumer” or “small business” within the meaning of the Consumer Law, there are certain rights (such as the consumer guarantees implied by the Consumer Law, which cannot by law be excluded (‘Non-Excludable Conditions’). This clause is subject to those Non-Excludable Conditions.
(b) Subject to the application of any applicable Non-Excludable Conditions and to the maximum extent permitted by law, Biznostics:
(i) excludes from this Agreement all guarantees, conditions and warranties that might but for this clause be implied into this Agreement;
(ii) excludes all liability to the User for any Costs, expenses, losses and damages suffered or incurred directly or indirectly by the User in connection with this Agreement, including using the Platform, whether that liability arises in contract, tort or under statute; and
(iii) will not, under any circumstances, be liable to the User for any Consequential Loss.
(c) If Biznostics’ liability under this Agreement cannot be lawfully excluded, to the maximum extent permitted by law, Biznostics’ liability for breach of any Non-Excludable Condition is limited:
(i) in the case of goods, to (at Biznostics’ option) the replacement of the goods or the supply of equivalent goods; the repair of the goods; the payment of the cost of replacing the goods or of acquiring equivalent goods; or the payment of the cost of having the goods repaired; and
(ii) in the case of services, to (at Biznostics’ option) the supplying of the services again; or the payment of the cost of having the services supplied again.
Biznostics excludes all other liability to the User for any Costs, including Consequential Loss, suffered or incurred directly or indirectly by the User in connection with the Agreement, or the Platform, in connection with:
(a) the occurrence of an Unforeseen Event as described in accordance with clause 17.2;
(b) reliance on technical advice, modelling or calculations provided by Biznostics;
(c) the infringement or claimed infringement by any person other than Biznostics of the Intellectual Property Rights including moral rights of any person in connection with the Agreement;
(d) any unauthorised activity in relation to the Platform by the User;
(e) any breach of this Agreement by the User;
(f) the User’s use of or reliance on the Platform for a purpose other than the business purposes of the User or the reasonably expected purpose of the Platform; or
(g) the User’s failure to fulfil its obligations under the Agreement. The foregoing limitation applies however the Costs are caused whether they arise in contract, tort (including by Biznostics’ negligence), or under statute.
12.5 Consequential Loss
Neither party is liable under this Agreement for any Consequential Loss arising out of a breach by either of them of this Agreement, including (without limitation) any liability under the indemnity in clause 13.
The User indemnifies and will keep Biznostics and its representatives indemnified against all liability arising from claims for:
(a) libel, slander, defamation, product disparagement or indecent, false, misleading or deceptive conduct;
(b) any breach of clause 4 (User’s Obligations);
(c) any breach of clause 10 (Privacy);
(d) any breach of the provisions of this clause 13.1;
(e) infringement of Intellectual Property Rights;
(f) piracy, counterfeiting, plagiarism, or unfair competition;
(g) invasion of the right of Privacy; and
(h) any incorrect, fraudulent or false information provided by the User.
14.1 Immediate Termination by Biznostics for Default
Biznostics may terminate this Agreement immediately by notice to the User if:
(a) an Insolvency Event occurs in relation to the User; or
(b) the User commits any breach of any of its obligations under this Agreement and:
(i) the breach is incapable of being remedied; or
(ii) if the breach is capable of being remedied, the User has failed to remedy the breach within ten (10) Business Days after the receipt of the notice; or
(iii) the User has been issued a notice of default more than two (2) times during a twelve (12) month period.
14.2 Immediate Termination by User for Default
The User may terminate this Agreement immediately by notice to Biznostics:
(a) by closing their account on the Platform via any provided method or by writing to Biznostics with sufficient information to identify the User and their account on the Platform;
(b) if an Insolvency Event occurs in relation to Biznostics; or
(c) if Biznostics commits any breach of any of its obligations under this Agreement and:
(i) the breach is incapable of being remedied; or
(ii) if the breach is capable of being remedied, Biznostics has failed to remedy the breach within thirty (30) Business Days after the receipt of the notice; or
(iii) Biznostics has been issued a notice of default more than three (3) times during a twelve (12) month period.
14.3 Effects of Termination
On termination of this Agreement, the licence will terminate and:
(a) the User must immediately:
(i) cease all activities related to the use of the Platform;
(ii) destroy all Content and other materials (including all electronic or physical copies) in its possession relating to the Platform; and
(iii) do any further things as may be reasonably required by Biznostics to protect its right, title and interest in the Platform.
(b) Biznostics may, in addition to terminating the Agreement:
(i) deactivate the User’s access and use of the Platform (without being liable in trespass or detinue);
(ii) repossess any of Biznostics’ property in the possession, custody or control of the User;
(iii) terminate or suspend access to the Platform;
(iv) refuse to disclose any passwords (recognising it may not be able to disclose any unhashed passwords);
(v) be regarded as discharged from any further obligations under this Agreement; and
(vi) pursue any additional or alternative remedies provided by law.
15. DISPUTE RESOLUTION
(a) Subject to clause 15(f) any dispute which arises between the parties in connection with this Agreement (dispute) must be dealt with in accordance with the requirements of this clause 15, before either party will be entitled to commence proceedings against the other party in respect of the dispute.
(b) The party claiming that a dispute has arisen (complainant) must give the other party a written notice setting out:
(i) a detailed explanation of the nature of the dispute; and
(ii) what action the complainant thinks will resolve the dispute (dispute notice).
(c) Within ten (10) Business Days of the dispute notice being received by the other party, a nominated senior executive of each party must meet, act in good faith and use best endeavours to resolve the dispute at that meeting, or such subsequent meetings as may be reasonably required.
(d) If the dispute is not resolved pursuant to clause 15(c) within thirty (30) days of the dispute notice being received by the other party, the parties agree to attend a privately held mediation with a mediator appointed by the nominated senior executive or both parties and in the absence of agreement within seven (7) days of disagreement by such mediator as appointed by the President, or person in like office of the Australian Disputes Centre.
(e) If the dispute is not resolved within a further thirty (30) days pursuant to clause 15(d) then either party may commence proceedings against the other party in respect of the dispute.
(f) Nothing in this clause 15 prevents a party from seeking urgent injunctive or similar relief from a court.
(a) Biznostics may propose to amend the EULA from time to time to be accepted by Permitted Users. If it does so, Biznostics will give reasonable written notice to the Customer of the terms of the amended EULA. The amended EULA will replace the terms of this EULA.
(b) If the Customer does not agree to the terms of the amended EULA, the Customer must close their account on the Platform via any provided method or by writing to Biznostics with sufficient information to identify the User and their account on the Platform, and not use the Platform for any purpose other than to close their account. The EULA then terminates immediately in accordance with clause 14.2(a).
Any communication under or in connection with this Agreement:
(a) must be to the addressee from time to time;
(b) must be in writing;
(c) must be delivered or posted by prepaid post to the address, or sent by email to the addressee, in accordance with clause 17.1(d); and
(d) If a notice is sent or delivered in the manner provided in 17.1(c) it must be treated as given to or received by the addressee in the case of:
(i) delivery in person, when delivered;
(ii) delivery by post, on the third (3rd) Business Day after posting;
(iii) delivery by email, at the earlier of the time stated in a read receipt sent by the recipient’s computer or when the message has been delivered to the email address of the addressee, but if delivery is made after 5.00pm on a Business Day it must be treated as received on the next Business Day in that place.
17.2 Unforeseen Event
A party is not responsible for any loss arising out of any occurrences or condition beyond its control, including acts of war (whether declared or not) or terrorism, the mobilisation of armed forces, civil commotion or riot, natural disaster, industrial action or labour disturbance, currency restriction, embargo, action or inaction by a government, a failure of a supplier, public utility, power, internet infrastructure (including hardware) or common carrier or computer disruption due to the effects of a computer virus, trojan, worm, malware or other malicious code.
(a) Subject to clause 17.3(b), a party may only assign, novate encumber, declare a trust over or otherwise create an interest in its rights under this document with the prior written consent of the other party, which it may withhold in the other party’s absolute discretion.
(b) Biznostics may assign, novate, encumber, declare a trust over or otherwise create an interest in its rights under this Agreement without the consent of the User, and may disclose to any potential holder of the right or interest any information relating to this Agreement or any party to it, as part of a sale of all or part of its business or assets.
(a) The User acknowledges and agrees that Biznostics may amend or vary this Agreement at any time by either posting the changes on its website, by making the replacement terms available when logging into the Platform, or by electronic notification to the User, at Biznostics’ sole election.
(b) The User is responsible for regularly reviewing the website and log in to the Platform to obtain timely notice of such amendments or variations.
(c) The User’s continued use of the Platform after amendments or variations are made by Biznostics constitutes the User’s acceptance of this Agreement being as modified by the amendments or variations.
17.5 Liability for expenses
Each party must pay its own expenses incurred in reviewing, negotiating, executing, and performing this Agreement.
17.6 Giving effect to this Agreement
Each party must do anything (including execute any document) and must ensure that its employees and agents do anything (including execute any document), that the other party may reasonably require to give full effect to this Agreement.
17.7 Waiver of rights
A right may only be waived in writing, signed by the party giving the waiver, and:
(a) no other conduct of a party (including a failure to exercise, or delay in exercising, the right) operates as a waiver of the right or otherwise prevents the exercise of the right;
(b) a waiver of a right on one or more occasions does not operate as a waiver of that right if it arises again; and
(c) the exercise of a right does not prevent any further exercise of that right or of any other right.
Nothing in this Agreement is intended to create or be construed as creating a relationship of agency, joint venture or partnership between any of the parties. Unless expressly stated in this Agreement, no party may act as agent of or in any way bind another party to any obligation.
17.9 Operation of this Agreement
(a) This Agreement contains the entire agreement between the parties about its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this Agreement and has no further effect. Any condition, warranty, representation or other term concerning the supply of the Platform and Content which might otherwise be implied into, or incorporated in, the Agreement, whether by statute, common law or otherwise, is excluded to the fullest extent permitted by law.
(b) Any right that a person may have under this Agreement is in addition to, and does not replace or limit, any other right that the person may have.
(c) Any provision of this Agreement which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make this Agreement enforceable, unless this would materially change the intended effect of this Agreement.
17.10 Inconsistency with other documents
If this Agreement is inconsistent with any other document or agreement between the parties, this Agreement prevails to the extent of the inconsistency.
Neither party has entered into any contract under this Agreement in reliance on or as a result of any representation, promise, statement, conduct or inducement by the other otherwise than as set out in this Agreement.
Where this Agreement states that the consent or approval of Biznostics is required, Biznostics may:
(a) give or withhold that consent or approval in its absolute discretion; and
(b) give that consent or approval subject to conditions, unless this Agreement expressly states otherwise.
17.13 Liability of Parties
If a party consists of more than one person:
(a) an obligation of that party is a joint obligation of all of those persons and a several obligation of each of them; a right given to that party is a right given jointly and severally to each of those persons, and if exercised by one of them, is deemed to be exercised jointly; and
(b) a representation, warranty or undertaking made by that party is made by each of those persons.
17.14 Governing law
The laws of Western Australia, Australia govern this Agreement. The parties submit to the non exclusive jurisdiction of courts exercising jurisdiction there.
Unless this Agreement explicitly states otherwise, expressions used in the Agreement have the following meanings:
(a) Agreement means this these terms and conditions.
(b) Biznostics means Biznostics Pty Ltd (ACN 155 132 120) of 642 Newcastle Street, Leederville WA 6007.
(c) Business Day means any day which is not a Saturday, Sunday or public holiday in Perth, Western Australia.
(d) Confidential Information means information that is by its nature confidential, including information relating to the:
(i) personnel, policies, practices, User or business strategies of the parties;
(ii) Intellectual Property Rights of either party;
(iii) the terms of this Agreement;
but does not include information:
(iv) already rightfully known to the receiving party at the time of disclosure by the other party; or
(v) in the public domain (including information made publicly available via a mechanism in the Software by the User) other than as a result of disclosure by a party in breach of its obligations of confidentiality under the Agreement.
(e) Content means the information made available via the Platform, which may be written, video, audio, or in another form, and may be static content or Output.
(f) Consequential Loss means loss of revenue, loss of profits, loss of anticipated savings or business, pure economic loss, loss of data, loss of value of equipment (other than the cost of repair), loss of opportunity or expectation loss, loss of goodwill, and any other form of consequential, special, indirect, punitive or exemplary loss or damages.
(g) Cost means any costs, expenses, losses, damages, claims, demands, proceedings, and other liability.
(h) User means:
(i) the person or entity registered with an account on the Platform as a User; or
(ii) the individual accessing or using the Platform,
as the case may be.
(i) Insolvency Event means in respect of a party:
(i) the appointment of an administrator, a receiver or receiver and manager in respect of that party;
(ii) an application to a court or an order for the winding up of the party; or
(iii) the occurrence of anything analogous or having a substantially similar effect to any of the preceding events.
(j) Intellectual Property Right means all present and future rights conferred by statute, common law or equity in or in relation to business names, circuit layouts, computer software, confidential information, copyright, designs, domain names, formulas, inventions, knowhow, patents, recipes, trademarks, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic field, the benefit of any application to register such a right and the benefit of any renewal or extension of such a right.
(k) Output means any information, data, results, analysis and other output of the Platform in response to the User’s inputs to the Platform.
(l) Platform means the Biznostics platform and related services’ platform (including any Cloud-based Version) for Biznostics Users (and includes all material (including tangible and intangible information), software (in source and object code forms), web applications, images, files, manuals, documents, devices, data, databases, supplied, created, written, developed or otherwise brought into existence (whether before, on or after the date of this Agreement) by Biznostics or on its behalf, and all their subsequent versions, updates and enhancements, and includes the Content and any Output.
(m) Personal Information has the meaning given to that term in the Privacy Act.
(n) Privacy Act means the Privacy Act 1988 (Cth) and includes any code registered under the Privacy Act and the Australian Privacy Principles.
(p) Services means any service provided by Biznostics in connection with the installing, configuring, deployment, installation, development (if any) and licensing of the Software and (as the case may be).
In this Agreement:
(a) headings are for convenience only and do not affect interpretation; and unless the context indicates a contrary intention:
(b) an obligation or liability assumed by, or a right conferred on, two or more parties binds or benefits all of them jointly and each of them severally;
(c) the expression “person” includes an individual, the estate of an individual, a corporation, an authority, an association or a joint venture (whether incorporated or unincorporated), a partnership and a trust;
(d) a reference to any party includes that party’s executors, administrators, successors and permitted assigns, including any person taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
(e) a reference to any statute or to any statutory provision includes any statutory modification or re-enactment of it or any statutory provision substituted for it, and all ordinances, by-laws, regulations, rules and statutory instruments (however described) issued under it;
(f) words importing the singular include the plural (and vice versa), and words indicating a gender include every other gender;
(g) references to parties, clauses, schedules, exhibits or annexures are references to parties, clauses, schedules, exhibits and annexures to or of this Agreement, and a reference to this Agreement includes any schedule, exhibit or annexure to this Agreement;
(h) where a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
(i) references to payments to any party to this Agreement include payments to another person upon the direction of such party;
(j) all payments to be made under this Agreement will be made by unendorsed bank cheque or other immediately available funds;
(k) the words “includes” or “including”, in any form, is not a word of limitation
(l) When the date or last day for doing an act is not a Business Day, the day or last day for doing the act will be the next following Business Day; and
(m) In the interpretation of this Agreement, no rule of contract interpretation applies to the disadvantage of a party on the basis that it put forward this Agreement or any part of it.