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Draftform Software Licence Terms and Conditions

Draftform software licence TERMS AND CONDITIONS

Welcome to Draftform! We are Draftform Pty Ltd, an Australian business with ABN 92 699 487 511 (‘we’, ‘our’ or ‘us’) and we provide a downloadable desktop software application known as “Draftform”, which enables users to review, annotate and mark up PDF documents, as described on our Website (Software).
These terms and conditions (including any Schedules) (Terms) govern your licence to use the Software and our provision of any other goods and services as set out in these Terms (Subscription). You can view the most updated version of our Terms at www.draftform.app/terms (Website). Please read these terms and conditions carefully before agreeing to proceed with your Subscription.
Your Subscription is for the tiered package as selected by you and agreed between us by means of the Website (Subscription Tier). Your Subscription grants you a non-exclusive, non-transferable, non-sublicensable, revocable licence to use the Software in accordance with these Terms.
Please note that your Subscription will continue to renew indefinitely, and you will continue to incur Subscription Fees, unless you notify us that you want to cancel your Subscription in accordance with clause 14. Please ensure you contact us if you want to cancel your Subscription.

Reading And Accepting These Terms In these Terms, capitalised words and phrases have the meanings given to them where they are followed by bolded brackets, or as set out in the Definitions table at the end of these Terms. By clicking the button on our Website or within the Software to indicate your acceptance of these Terms, paying for your Subscription, downloading, installing or using the Software, or otherwise accepting the benefit of any part of your Subscription, you agree to be bound by these Terms which form a binding contractual agreement between you the person acquiring a Subscription or the company you represent and are acquiring the Subscription on behalf of (‘you’ or ‘your’) and us. We may change these Terms at any time by notifying you in accordance with these Terms and your continued use of the Software following such an update will represent an agreement by you to be bound by the Terms as amended.

Eligibility By accepting these Terms, you represent and warrant that: you have the legal capacity and authority to enter into a binding contract with us; and you are authorised to use the payment you provided when purchasing a Subscription. The Software is not intended for unsupervised use by any person under the age of 18 years old or any person who has previously been suspended or prohibited from using the Software. By using the Software, you represent and warrant that you are either: over the age of 18 years; or accessing and using the Software on behalf of someone under the age of 18 years old and consent to that person’s use of the Software. You are not permitted to, install or use the Software if you are under the age of 18 years old and do not have your parent or guardian’s consent or if you have previously been suspended or prohibited from using the Software. If you are signing up on behalf of your company, your employer, an organisation, government or other legal entity (Represented Entity), then the words “you” or “your” shall mean the Represented Entity and you are binding the Represented Entity to this agreement. If you are accepting this agreement and using our Software on behalf of a Represented Entity, you represent and warrant that you hold the requisite authorisation to do so.

Duration Of Your Subscription Your Subscription and these Terms commence on the date you agree to be bound by these Terms (as set out at the beginning of these Terms) and continues for the Subscription Period and any Renewal Periods applicable, unless terminated earlier in accordance with clause 14. Subject to clause 3(c), upon expiration of the Subscription Period, the Subscription will automatically and indefinitely renew on an ongoing basis for subsequent periods equal to the Subscription Period (Renewal Period). This agreement will automatically renew on expiry of the Subscription Period or Renewal Period (each a Renewal Date), unless either party provides written notice of cancellation at any time up until 11:59pm on the day immediately prior to the Renewal Date. We will provide you with advanced written notice of the agreement renewing and any applicable changes to the Fees or these Terms (Renewal Notice) at least: for monthly subscriptions, 7 days prior to the expiry of the Renewal Date; and for annual subscriptions, 30 days prior to the expiry of the Renewal Date. Each completed 12-month Subscription Period (including any 12-month Renewal Period) gives rise to a new Version Entitlement in accordance with clause 4.6. If your Subscription expires or is terminated before completion of the applicable 12-month period, no Version Entitlement will arise for that incomplete period. Software grant of licence Subject to these Terms and payment of all applicable Subscription Fees, we grant you a non-exclusive, non-transferable, non-sublicensable and revocable licence for the duration of the term of the Subscription Period to download, install and use the Software and Documentation solely for your internal business purposes or, where you access the Software as a home or personal user, for your own personal and non-commercial purposes, and in accordance with your Subscription Tier. The Software is licensed, not sold, and no ownership rights are transferred to you. All rights not expressly granted are reserved by us. users and permitted access Your right to use the Software is limited to the Number of Software Users specified in your Subscription Tier (or one (1) User if not specified). Each User must be individually authorised by you and must create an Account in order to access and use the Software. Each User must, as a condition of access, accept and agree to a separate end user licence agreement (EULA) presented within the Software or Website. You acknowledge and agree that Users are not contracting with us on your behalf and that the EULA governs each User’s permitted use of the Software in addition to these Terms. You are responsible for ensuring that only authorised Users are permitted to access the Software under your Subscription Tier.

Accounts (Accounts) To use the Software, each User is required to sign up, register and maintain an individual account through the Software or the Website (an Account). Each Account must be used by a single, individual User and may not be shared between multiple users. (Provide Information) As part of the Account registration process and as part of your continued use of the Website, you may be required to provide personal information and details, such as your email address, first and last name, preferred username, a secure password, billing, postal and physical addresses, mobile phone number, photos and video, audio files, profile information, payment details, ratings and reviews, verified identifications, verified certifications and authentication, and other information as determined by us from time to time. (Warranty) You warrant that any information you give to us in the course of completing the Account registration process is accurate, honest, correct and up-to-date. (Acceptance) Once you complete the Account registration process, we may, in our absolute discretion, choose to accept you as a registered user within the Website and provide you with an Account. We reserve the right, at our sole discretion, to refuse any application for registration, decline to provide services to any person or entity, to suspend or terminate any Account or access to services, with or without notice where permitted by law, including where we reasonably consider that such action is necessary to protect the integrity, security or operation of the Services or to comply with applicable laws.

Disclaimer You acknowledge and agree that: any information provided to you as part of or in connection with the Software is general in nature, may not be suitable for your circumstances and does not constitute financial, legal or any other kind of professional advice; the Software is designed for reviewing, annotating and marking up PDF documents and related files, and is provided on an “as is” and “as available” basis; while the Software may include tools for viewing, scaling, measuring or marking up documents, any measurements, scaling, dimensions, annotations or outputs generated by or within the Software are indicative only and may not be accurate, and must not be relied upon for construction, engineering, legal or other critical purposes; you are solely responsible for independently verifying any measurements, scaling, annotations or outputs before relying on them for any purpose, and you use any such features at your own risk; the Software may rely on third-party components, including PDF rendering engines or libraries, and we do not warrant that documents will render identically across all devices, operating systems or environments; where the Software enables electronic signatures, you are responsible for determining whether such signatures are legally valid and accepted for your intended purpose, and we do not warrant that any signature will be accepted by any particular person, organisation, jurisdiction or regulatory authority; and it is your responsibility to comply with applicable Laws relevant to your business, including industrial relations Laws and privacy Laws.

Enhancements We may from time to time, in our absolute discretion, release enhancements to the Software, meaning an upgraded, improved, modified or new versions of the Software (Enhancements). Any Enhancements to the Software will not limit or otherwise affect these Terms. Enhancements may cause downtime or delays from time to time, and credits will not be provided for such downtime. We may change any features of the Software at any time on notice to you. Where we change or remove a feature of the Software which removes critical functionality of the Software, you may choose to terminate that agreement in accordance with clause 14.1 for a pro-rated refund of any pre-paid Subscription Fees. version entitlement (12-month subscriptions) Where you purchase a 12-month Subscription (whether paid annually or in monthly instalments over a 12-months period), you will be entitled to the following additional rights on the conclusion of the 12-month period (Version Entitlement Start Date): ongoing access to the major version of the Software you are using at the Version Entitlement Start Date; and a non-exclusive, non-transferable, perpetual licence to continue using the version of the Software as it existed as at the Version Entitlement Start Date solely for your internal business or personal purposes and subject to these Terms (Version Licence). For clarity: the licence granted under clause 4.1 applies only during the Subscription Period and will automatically cease upon expiry or termination of your Subscription, except to the extent expressly preserved under this clause 4.6; the Version Licence granted under this clause 4.6 is limited to the version of the Software you are using at the Version Entitlement Start Date, and does not include any right to receive Updates, Enhancements or future Releases, including any major version upgrades; Support Services will only be provided for the current major version of the Software and the immediately preceding major version, and you acknowledge that Support Services may not be available for any older versions of the Software; and all Intellectual Property Rights in the Software, including all Updates, Enhancements and future Releases, remain owned by us and are licensed, not sold.

Support Services We will provide general support where reasonably necessary to resolve technical issues with the Software (Support Services). Unless otherwise agreed in writing: we will take reasonable steps to provide Support Services where necessary (you must first endeavour to resolve any issues with the Software internally and we will not assist with issues that are beyond our reasonable control); we will use our best endeavours to respond to requests for Support Services and you acknowledge that we may not be available 24/7 or respond within a particular time frame; you are responsible for all internal administration and managing access, including storing back-up passwords and assisting your Users to access and use the Software; and you will not have any claim for delay to your access to the Software due to any failure or delay in Support Services.

Client Obligations

Obligations You agree to: provide us with all documentation, information and assistance reasonably required by us to provide you with the Software or the Support Services; and provide us with access to any third party or other accounts used by you (including log-in details and passwords) where reasonably required by us to provide you with the Software or the Support Services.

Client Material You warrant that all information, documentation and other Material you provide to us for the purpose of receiving the Software is complete, accurate and up-to-date. You release us from all liability in relation to any loss or damage arising out of or in connection with the Software, to the extent such loss or damage is caused or contributed to by information, documentation or any other Material provided by you being incomplete, inaccurate or out-of-date.

Your Obligations You must, and must ensure that all Users, comply with these Terms and the terms of the EULA at all times. You acknowledge and agree that we will have no liability in respect of any damage, loss or expense which arises in connection with your, your Personnel’s, or any User’s, breach of these Terms, and you indemnify us in respect of any such damage, loss or expense. You must not, and must not encourage or permit any User, Personnel or any third party to, without our prior written approval: upload any inappropriate, offensive, illicit, illegal, pornographic, sexist, homophobic or racist material using the Software; use the Software for any purpose other than for the purpose for which it was designed, including you must not use the Software in a manner that is illegal or fraudulent or facilitates illegal or fraudulent activity (including requesting or accepting a job which includes illegal activities or purposes; upload any material that is owned or copyrighted by a third party; make copies of the Documentation or the Software; adapt, modify or tamper in any way with the Software; remove or alter any copyright, trade mark or other notice on or forming part of the Software or Documentation; act in any way that may harm our reputation or that of associated or interested parties or do anything at all contrary to the interests of us or the Software; use the Software in a way which infringes the Intellectual Property Rights of any third party; create derivative works from or translate the Software or Documentation; publish or otherwise communicate the Software or Documentation to the public, including by making it available online or sharing it with third parties; integrate the Software with third party data or Software, or make additions or changes to the Software, (including by incorporating APIs into the Software) other than integrating in accordance with any Documentation or instructions provided by us in writing; intimidate, harass, impersonate, stalk, threaten, bully or endanger any other User or distribute unsolicited commercial content, junk mail, spam, bulk content or harassment in connection with the Software; sell, loan, transfer, sub-licence, hire or otherwise dispose of the Software or Documentation to any third party, other than granting a User access as permitted under these Terms; decompile or reverse engineer the Software or any part of it, or otherwise attempt to derive its source code; share your Account or Account information, including log in details or passwords, with any other person and that any use of your Account by any person who is not the account holder is strictly prohibited. You must immediately notify us of any unauthorised use of your Account, password or email, or any other breach or potential breach of the Software’s security; except as otherwise agreed, upload sensitive information or commercial secrets to the Software; permit any use of the Software in addition to the Number of Software Users; make any automated use of the Software and you must not copy, reproduce, translate, adapt, vary or modify the Software without our express written consent; or attempt to circumvent any technological protection mechanism or other security feature of the Software. If you become aware of misuse of your Subscription by any person, any errors in the material on your Subscription or any difficulty in accessing or using your Subscription, please contact us immediately using the contact details or form provided on our Website. You agree, and you must ensure that all Users agree: to comply with each of your obligations in these Terms; to sign up for an Account in order to use the Software; that information given to you through the Software, by us or another User, is general in nature and we take no responsibility for anything caused by any actions you take in reliance on that information; and that we may cancel your, or any User’s, Account at any time if we consider, in our absolute discretion, that you or they are in breach of, or are likely to breach, this clause 5.

Fees And Payment

Subscription Fees You must pay subscription fees to us in the amounts specified on the Website for your Subscription Tier, or as otherwise agreed in writing (Subscription Fees). All Subscription Fees must be paid in advance and are non-refundable for change of mind. Unless otherwise agreed in writing, the Subscription Fees are due and payable on a recurring basis for the term of your Subscription, with the first payment being due on the first day of the Subscription Period (or immediately after the expiry of any applicable Free Trial Period) and at the beginning of every Renewal Period thereafter. free TRIAL PERIOD We may from time to time offer a free trial period of the Software (Free Trial Period). No payments will be due during any Free Trial Period and your first payment will be due immediately after the expiry of the Free Trial Period, unless cancelled beforehand.

Automatic Recurring Billing Subject to clauses 6.4 and 6.3: your Subscription will continue to renew on an automatic indefinite basis unless you notify us that you wish to cancel in accordance with this clause 6. while your Subscription is maintained, your Subscription Fees will continue to be debited at the beginning of each Renewal Period from the payment method you nominated when you registered for an Account. by signing up for a recurring Subscription, you acknowledge and agree that your Subscription has an initial and recurring payment feature, and you accept responsibility for all recurring charges prior to your cancellation of your Subscription. grace period If you fail to cancel your Subscription prior to a Renewal Period and you are charged recurring charges, you have up to 5 Business Days’ from the date of that renewal to cancel your Subscription by contacting us (Grace Period). If you cancel your Subscription within the Grace Period, please contact us via our Website to request a refund for any recurring fees charged to you during the Grace Period.

Changes To Subscription Fees We may, from time to time, change our Subscription Fees and provide you with 10 Business Days’ notice. During this time, you have the opportunity to cancel your Subscription with us. If you do not notify us that you wish to cancel your Subscription within 10 Business Days’, you will be deemed to have agreed to pay the new Subscription Fees on the relevant date(s) for payment. The Subscription Fees will be effective from the date specified in the notice or, if no date is specified, on your next billing date.

Late Payments We reserve the right to suspend all or part of the Software indefinitely if you fail to pay any Fees in accordance with this clause 6.

Gst Where your purchase is made through our Online Payment Partner acting as Merchant of Record, the Online Payment Partner is the seller of record and is responsible for calculating, collecting and remitting any applicable GST, VAT, sales or similar taxes and for issuing any tax invoice. Where we supply directly, the Fees do not include GST unless otherwise indicated, and you must pay any GST on a taxable supply by us against a valid tax invoice.

Card Surcharges We reserve the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard or American Express).

Online Payment Partner We may use third-party online payment partner, currently Paddle. (Online Payment Partner), which acts as our Merchant of Record and is the seller of record for your purchase. The Online Payment Partner collects Subscription Fees and is responsible for handling applicable sales taxes (including GST, VAT or equivalent) and refunds in accordance with its terms. Provided that we have notified you of such Third Party Terms and provided you with a copy of those terms, you acknowledge agree that: the processing of payments by the Online Payment Partner will be, in addition to this agreement, subject to the terms, conditions and privacy policies of the Online Payment Partner; you release us and our Personnel in respect of all liability for loss, damage or injury which may be suffered by any person arising from any act or omission of the Online Payment Partner, including any issue with security or performance of the Online Payment Partner’s platform or any error or mistake in processing your payment; and We reserve the right to correct, or to instruct our Online Payment Partner to correct, any errors or mistakes in collecting your payment. You have the right to reject any terms and conditions of the Online Payment Partner. If you reject those terms, we cannot provide you with the Subscription and clause 14 will apply.

Intellectual Property And Data

Intellectual Property (Our ownership) We retain ownership of all Intellectual Property Rights in the Software and all Materials provided to you throughout the course of your Subscription in connection with the Software (including text, graphics, logos, design, icons, images, sound and video recordings, pricing, downloads and software) (Software Content) and reserve all rights in any Intellectual Property Rights owned or licensed by us in the Software Content not expressly granted to you. (Licence to you) Subject to these Terms, you are granted a limited, non-exclusive, non transferable licence for the Number of Software Users to access and use the Software Content solely for the purpose of using the Software in accordance with your Subscription. You may make a temporary electronic copy of all or part of any materials provided to you for the sole purpose of viewing them and using them for the purposes of the Software. You must not otherwise reproduce, transmit, adapt, distribute, sell, modify or publish those materials or any Software Content without prior written consent from us or as otherwise permitted by law.

User Data Our Rights and Obligations You retain ownership and control of all User Data. As the Software operates locally on your device and does not upload or transmit User Data to us, we do not access, store, host or process User Data, except where you voluntarily provide information to us for support, troubleshooting or other purposes. You are solely responsible for the accuracy, legality, security, backup and management of User Data stored through your use of the Software. You warrant that your use of the Software and any User Data entered into the Software will not infringe any third-party Intellectual Property Rights or breach applicable laws. You indemnify us from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) arising from any breach of this clause or your use of User Data. THIRD PARTY SOFTWARE & terms

Third Party Terms If we are required to acquire goods or services supplied by a third party, you may be subject to the terms and conditions of that third party (‘Third Party Terms’). Currently, such Third Party Terms that may apply includes: Paddle. Provided that we have notified you of such Third Party Terms and provided you with a copy of those terms, you agree to any Third Party Terms applicable to any goods or services supplied by a third party that we acquire as part of providing the Software to you and we will not be liable for any loss or damage suffered by you in connection with such Third Party Terms. You have the right to reject any Third Party Terms. If you reject the Third Party Terms, we cannot provide the Software to you and clause 14 will apply.

Third Party Software Integrations You acknowledge and agree that issues may arise during software integration processes or when data is uploaded or when data is transferred between different software programs. We cannot guarantee that integration processes between the Software and other software programs will be free from errors, defects or delay. You agree that we will not be liable for the functionality of any third party goods or services, including the functionality of any third party software under any circumstances whatsoever. If you add third party software or software code to the Software, integrate the Software with third party software, or modify the Software, including the Software code (User Software Changes), then: you acknowledge and agree that User Software Changes can have adverse effects on the Software, including the Software; you will indemnify us in relation to any loss or damage that arises in connection with the User Software Changes; we will not be liable for any failure in the Software, to the extent such failure is caused or contributed to by a User Software Change; we may require you to change or remove User Software Changes, at our discretion, and if we do so, you must act promptly; we may suspend your access to the Software until you have changed or removed User Software Change; and/or we may modify or remove any User Software Change, in our absolute discretion. We will not be liable for loss of data or any other loss or damage you may suffer in relation to our amendment to, or removal of, any User Software Change.

Confidentiality obligations of confidentiality You must: keep the Confidential Information strictly confidential; not disclose Confidential Information to any third party except as permitted under this Agreement; only use Confidential Information for the purpose of exercising its rights or performing its obligations under this agreement; take all reasonable steps to protect Confidential Information from unauthorised access, use, or disclosure, at least to the same standard as it protects its own confidential information (and no less than a reasonable standard of care). permitted disclosure A Receiving Party may disclose Confidential Information only to your employees, contractors, agents, or professional advisers who: have a strict need to know for the purposes of this Agreement; and are bound by confidentiality obligations no less protective than those set out in this clause. exclusions Confidential Information does not include information that you can demonstrate: is or becomes publicly available other than through a breach of this Agreement; was lawfully known to the Receiving Party prior to disclosure; is independently developed without reference to the Confidential Information; or is lawfully obtained from a third party without restriction on disclosure. legal disclosure If you are required by law, regulation, or court order to disclose any Confidential Information, you may do so provided you give us prompt written notice and take reasonable steps to limit the disclosure. return or destruction Upon termination or expiry of this Agreement, or upon our written request, you must promptly return or securely destroy all Confidential Information, including all copies, extracts, and derivatives, except where retention is required by law. survival This clause survives termination or expiry of this Agreement.

Privacy We collect personal information about you in the course of providing you with the Software, to contact and communicate with you, to respond to your enquiries and for other purposes set out in our Privacy Policy which can be found on our Website. Our Privacy Policy contains more information about how we use, disclose and store your personal information and details how you can access and correct your personal information. By agreeing to these Terms, you agree to our handling of personal information in accordance with our Privacy Policy.

Liability

Warranties And Limitations (Service Limitations) While we will use our best endeavours to ensure the Software is working for its intended purpose, you acknowledge and agree that from time to time, you may encounter the following issues: the Software may have errors or defects; the Software may not be accessible at times; messages sent through the Software may not be delivered promptly, or delivered at all; information you receive or supply through the Software may not be secure or confidential; or any information provided through the Software may not be accurate or true. (Errors) We will correct any errors, bugs or defects in the Software which arise during your Subscription and which are notified to us by you, unless the errors, bugs or defects: result from the interaction of the Software with any other solution or computer hardware, software or services not approved in writing by us; result from any misuse of the Software; or result from the use of the Software by you other than in accordance with these Terms or the Documentation. (Warranties) We warrant that: during the Subscription Period, the Software will perform substantially in accordance with the Documentation; during the Subscription Period, the Software will be provided as described to you in, and subject to, these Terms; and to our knowledge, the use of the Software in accordance with these Terms will not infringe the Intellectual Property Rights of any third party. (Exclusion) To the maximum extent permitted by applicable law, all express or implied representations and warranties not expressly stated in these Terms are excluded. (Consumer law) Nothing in these Terms is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, you may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services provided.

Liability

Liability To the maximum extent permitted by law, and subject to clause 12.3, the total liability of each party in respect of loss or damage sustained by the other party in connection with this agreement is limited to the amount paid by you to us in the 12 months preceding the date of the event giving rise to the relevant liability.

Consequential Loss To the maximum extent permitted by law, and subject to clause 12.3, neither party will be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue in connection with this agreement or any goods or services provided by us except: in relation to a party’s liability for fraud, personal injury, death or loss or damage to tangible property; or to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth).

Exclusion Clauses 12.1 and 12.2 shall not apply to your liability in respect of any loss or damage sustained by us arising from the your breach of clauses 2 (Eligibility), 4 (Software), 5 (Client Obligations), 6 (Fees), 7 (Intellectual Property), 9 (Confidentiality).

Upgrade And Downgrades You may notify us that you would like to upgrade or downgrade your Subscription Tier or the Number of Software Users at any time. If you do, we will: take reasonable steps to promptly provide you with access to the new Subscription Tier or the additional Number of Software Users; and upon providing such access, charge the relevant Subscription Fees, from the Renewal Period immediately following the period in which your access to the new Subscription Tier was provided, and you will be charged at the new Subscription Fee in every subsequent Renewal Period. If you choose to downgrade your Subscription or the Number of Software Users, access to the new Subscription Tier or the Number of Software Users and the new Subscription Fees will be effective at the start of the next Renewal Period, unless we notify you otherwise. We generally do not pro-rate downgrades in between Renewal Periods, however we reserve the right to from time to time. If you choose to downgrade your Subscription, you acknowledge and agree we are not liable, and you release us from all claims in relation to, any loss of content, features, or capacity, including any User Data

Cancellation cancellation at any time Either party may cancel or terminate your Subscription for convenience by providing written notice to the other party at any time up until 11:59pm on the day immediately prior to the Renewal Date. The Subscription will end at the end of the then-current Subscription Period and will not renew for the next Renewal Period. cancellation for breach If either party breaches this Agreement, the non-defaulting party may give the defaulting party written notice specifying the nature of the breach and requiring it to be remedied. The defaulting party must remedy the breach within fourteen (14) days after receiving the notice, or such longer period as the non-defaulting party reasonably allows, if the breach is capable of being remedied. If the breach: is not capable of being remedied; or is capable of being remedied but is not remedied within the period specified in clause 14.2(b), the non-defaulting party may, by written notice, terminate this Agreement with immediate effect and exercise any other rights or remedies available at law or under this Agreement. Without limiting clause 14.2(c), each of the following constitutes a material breach by you: failure to pay any Fees in accordance with this Agreement where the failure continues for more than fourteen (14) days after written notice; use of the Software other than expressly authorised by this agreement; permitting any unauthorised person to access, copy, modify, distribute, reverse engineer, decompile or otherwise exploit the Software except as permitted by law; breach of any license restrictions contained in the Agreement; infringement or attempted infringement of our Intellectual Property Rights; or any other breach that causes or is likely to cause material prejudice to us. Termination under this clause does not affect any accrued rights, obligations or remedies of either party, including our right to recover any unpaid Fees or damages arising from the breach.

Effect Of Termination Upon termination of this agreement: you will no longer have access to the Software, your Account or your User Data and we will have no responsibility to store or otherwise retain any User Data (and you release us in respect of any loss or damage which may arise out of us not retaining any User Data beyond that point); unless agreed in writing, any unpaid Subscription Fees that would otherwise have been payable after termination for the remainder of the relevant Renewal Period will remain payable and, to the maximum extent permitted by law, no Subscription Fees already paid will be refundable; and each party must comply with all obligations that are by their nature intended to survive the end of this agreement.

If The Parties Have A Dispute A party claiming that a dispute has arisen under or in connection with this agreement must not commence court proceedings arising from or relating to the dispute, other than a claim for urgent interlocutory relief, unless that party has complied with the requirements of this clause. A party that requires resolution of a dispute which arises under or in connection with this agreement must give the other party or parties to the dispute written notice containing reasonable details of the dispute and requiring its resolution under this clause. Once the dispute notice has been given, each party to the dispute must then use its best efforts to resolve the dispute in good faith. If the dispute is not resolved within a period of 14 (or such other period as agreed by the parties in writing) after the date of the notice, any party to the dispute may take legal proceedings to resolve the dispute.

Force Majeure We will not be liable for any delay or failure to perform its obligations under this agreement if such delay or failure arises out of a Force Majeure Event. If a Force Majeure Event occurs, we must use reasonable endeavours to notify you of: reasonable details of the Force Majeure Event; and so far as is known, the probable extent to which We will be unable to perform or be delayed in performing its obligations under this agreement. Subject to compliance with clause 16(b), our relevant obligation will be suspended during the Force Majeure Event to the extent that it is affected by the Force Majeure Event. For the purposes of this agreement, a ‘Force Majeure Event’ means any: act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire; strikes or other industrial action outside of the control of us; war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic; or any decision of a government authority in relation to COVID-19, or any threat of COVID-19 beyond the reasonable control of us, to the extent it affects our ability to perform our obligations.

Notices A notice or other communication to a party under these Terms must be: in writing and in English; and delivered via email to the other party, to the email address specified at signup, or if no email address is specified at signup, then the email address most regularly used by the parties to correspond regarding the subject matter of this agreement as at the date of this agreement (Email Address). The parties may update their Email Address by notice to the other party. Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party’s Email Address, notice will be taken to be given: 24 hours after the email was sent, unless that falls on a Saturday, Sunday or a public holiday in the state or territory whose laws govern this agreement, in which case the notice will be taken to be given on the next occurring business day in that state or territory; or when replied to by the other party, whichever is earlier.

General

Governing Law And Jurisdiction This agreement is governed by the law applying in Western Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of Western Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.

Waiver No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.

Severance Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.

Joint And Several Liability An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.

Assignment A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.

Entire Agreement This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.

Interpretation (singular and plural) words in the singular includes the plural (and vice versa); (currency) a reference to $; or “dollar” is to Australian currency; (gender) words indicating a gender includes the corresponding words of any other gender; (defined terms) if 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, the list of definitions is attached hereto. (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity; (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee; (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it; (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time; (headings) headings and words in bold type are for convenience only and do not affect interpretation; (includes) the word “includes” and similar words in any form is not a word of limitation; and (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision.

Definitions

Term
Definition
Confidential Information
means information of or provided by a party that is by its nature is confidential information, is designated by that party as confidential, or that the other party knows or ought to know is confidential, but does not include information, which is or becomes, without a breach of confidentiality, public knowledge.
Documentation
means all manuals, help files and other documents supplied by us to you relating to the Software.

Eula means the End User Licence Agreement in Schedule 1. Intellectual Property Rights means any and all present and future intellectual and industrial property rights throughout the world (whether registered or unregistered), including copyright, trade marks, designs, patents, moral rights, semiconductor and circuit layout rights, trade, business, company and domain names, and other proprietary rights, trade secrets, know-how, technical data, confidential information and the right to have information kept confidential, or any rights to registration of such rights (including renewal), whether created before or after the date of this agreement. Material means tangible and intangible information, documents, reports, software (including source and object code), inventions, data and other materials in any media whatsoever. Number of Software Users means the number of Users that you may make the Software available to, in accordance with your Subscription Tier. Personnel means, in respect of a party, its officers, employees, contractors (including subcontractors) and agents. Receiving Party means a party that receives Confidential Information from the other party. Software has the meaning given in the first paragraph of these Terms. Software Content has the meaning set out in clause 7.1(a). Subscription has meaning given in the first paragraph of these Terms. Subscription Fees has the meaning set out in clause 6 of these Terms. Subscription Period means the period of your Subscription to the Software as agreed on the Website. Subscription Tier has the meaning given in the first paragraph of these Terms. Support Services has the meaning given in clause 4.7. User means you and any third party end user of the Software who you make the Software available to. User Data means any files, data, document, information or any other Materials, which is uploaded to the Software by you or any other User or which you, your Personnel or Users otherwise provide to us under or in connection with these Terms, including any Intellectual Property Rights attaching to those materials. Version Entitlement Start Date has the meaning given in clause 4.6. Version Licence has the meaning given in clause 4.6. Website means the website at the URL set out in the first paragraph of these Terms, and any other website operated by us in connection with the Software.