License Terms and Conditions
SOFTWARE AS A SERVICE AGREEMENT
The following are the terms and conditions for use of www.openorbit.net (“Website”) online service (“Service“) between INSOLITUS PTY LTD, a company incorporated under the laws of Australia and having its registered office at 134 Sutherland Road, Beecroft, NSW 2119 (“Provider”) and you (either an individual or a legal entity that you represent as an authorized employee or agent) (“Customer”). Please review this Software as a Service Agreement (“Agreement”) carefully. The Service may be used by individuals who are at least 18 (eighteen) years old.
BY CLICKING THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS AND/OR USING THE SERVICE, THE CUSTOMER AGREES AND STATES THAT THE CUSTOMER IS ELIGIBLE FOR AN USER ACCOUNT AND THAT THE CUSTOMER AGREES TO BE BOUND BY THIS AGREEMENT.
The offering of the Service is conditioned on the Customer’s acceptance without modification of this Agreement.
“Applicable Currency” shall mean US Dollars, Australian Dollars or any other foreign currency of the choice of the Provider subject to applicable law;
“Authorised User” shall mean, in relation to a Customer that is a legal entity, the officer, employee, agent or consultant of the Customer authorised to access the User Account allotted by the Provider for use of the Service;
“Back-Up Policy” shall mean the Provider’s policy for storage of the Customer Data as made available at the Website;
“Business Day” shall mean a day which is neither a Saturday, Sunday or a bank holiday in New South Wales, Australia;
“Consultancy Commission” shall mean a payment to be made by the Customer for the use of the respective Service for the respective Subscription Period based on Customer Revenues during the respective Subscription Period payable in the Applicable Currency;
“Customer Data” shall mean the data entered by the Customer or the Provider on the Customer’s behalf for the purpose of using the Service or facilitating the Customer’s use of the Service;
“Customer Revenues” shall mean the gross revenues (without any deductions for taxes, duties, statutory levies or expenses) earned by the Customer from its clients and customers in the rendering of its services to them with the use of the Service in whole or in part;
“Documentation” shall mean the online support pages under the respective ‘Support’ section on the Website;
“Normal Business Hours” shall mean between 10am – 6pm, Australia Time on Business Days;
“Software” shall mean the software and data made available by or on behalf of the Provider, which enables the Customer to access or use the Service;
“Services Policy“, shall mean the Provider’s policy for providing support in relation to the Services as made available at the Website;
“Subscription“, shall mean the subscription purchased by the Customer through the Website which entitles the Customer and its Authorised Users to access and use the Services and the Documentation in accordance with this Agreement;
“Subscription Fee” shall mean a payment to be made by the Customer for the use of the respective Service for the respective Subscription Period payable in Applicable Currency;
“Subscription Period“, shall mean the respective limited time period during which the Customer may use the respective Service, as determined by the Subscription chosen and payment made to the Provider in respect of such Service;
“Virus” shall mean anything or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
2. DESCRIPTION OF SERVICE
2.1 Subject to the terms and conditions of this Agreement, the Provider grants to the Customer the non-exclusive, non-transferable, revocable right to use the Service and Documentation during the Subscription Period solely for the Customer’s internal business operations.
2.2 The Provider does not have any obligation to deliver or ship copies of the Provider’s Software or programs to the Customer as part of the Service. The Customer agrees that the Customer does not acquire under this Agreement any license to use the Provider’s Software in excess of the scope or duration of the Services provided in this Agreement.
2.3 The Provider reserves the right to replace, modify or upgrade the Software in its sole discretion, and will notify the Customer of any upgrades at least 3 (three) days in advance of releasing such upgrade unless it is deemed by the Provider to be an urgent bug fix in which case best efforts will be made to provide advance notice. Any replacement or upgrade to the Service shall be treated as part of the Service for the purpose of this Agreement.
2.4 This Agreement is for the provision of the Software as a Service, and does not constitute an agreement of sal No title, patent, copyright, trademark, trade secret, intellectual property, or other ownership rights of the Provider are transferred to the Customer by virtue of this Agreement.
2.5 The Customer is responsible for ensuring use of the Service in compliance with all applicable laws and this Agreement and the Customer acknowledges that the Customer assumes all risk arising from any such use that is not compliant with applicable laws and this Agreement. The Customer assumes all risk arising from use of any sensitive information with the Software, including the risk of any inadvertent disclosure or unauthorized access.
2.6 A Customer that is a legal entity is responsible for ensuring that its Authorised Users use the Service in compliance with all applicable laws and this Agreement and the Customer acknowledges that the Customer assumes all risk arising from any such use by the Authorised Users that is not compliant with applicable laws and this Agreement.
3. CUSTOMER USER ACCOUNT
3.1 The Customer will be granted authorized login protocols for the Services, and it agrees not to use the Services in excess of the authorized login protocols. The Customer agrees not to access or attempt to access the Service by any means other than through the login protocols the Provider provides to the C<
3.2 The Customer shall create genuine user profiles for the purpose of availing the Service under this Agreement. The Customer shall provide true, accurate, current and complete information about itself including email address as prompted by the Service registration process (“Registration Data“). The Customer further agrees that, in providing such Registration Data shall not knowingly omit or misrepresent any material facts or information and that it shall promptly enter corrected or updated Registration Data via the Service, or otherwise inform the Provider promptly in writing of any such changes or updates.
3.3 The Customer further consents and authorizes the Provider to verify its Registration Data as required for its use of and access to the Service. Once the Customer has subscribed to the Service, it shall be allotted a Customer account (“User Account”). The Customer agrees that it shall not allow another person to use the User Account to access and use the Service under any circumstances.
3.4 The Customer is solely and entirely responsible for maintaining the confidentiality of its login and password details for the User Account and for any charges, damages, liabilities or losses incurred or suffered as a result of its failure to do so. The Provider is not liable for any harm caused by or related to the theft of the Customer’s User Account details, or its authorization to allow other persons to access and use the Service using the User Account.
3.5 The Customer agrees not to access or attempt to access the Services through any automated means (including use of scripts or web crawlers), and the Customer agrees to comply with the instructions set out in the instructions and Policies present on the Website in relation to the Service.
3.6 The Customer agrees not to use the Service for the propagation, distribution, housing, processing, storing, or otherwise handling in any way lewd, obscene, or pornographic material, or any other material which the Provider deems to be objectionable. The Customer shall not access, store, distribute or transmit any material during the course of its use of the Service that: (i) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (ii) facilitates illegal activity or promotes unlawful violence; (iii) depicts sexually explicit images or discriminates based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or (iv) causes damage or injury to any person or property; and the Provider reserves the right, without liability to the Customer, to remove or disable the Customer’s access to any material that breaches the provisions of this clause. The designation of any such materials is entirely at the Provider’s sole discretion. The Provider shall have no liability to the Customer in the event that the Provider takes any action under this clause. The Customer agrees to defend and indemnify the Provider against any claim arising out of a violation of the Customer’s obligations under this clause.
3.7 The Customer is solely and entirely responsible for any and all activities that occur under its User Account including any additional charges, if any, incurred relating to the Service. The Customer shall use all measures to prevent any unauthorised access to, or use of, the Service or the Documentation. The Customer agrees to immediately notify the Provider of any unauthorized use of its User Account or any other breach of security known to the Customer. 3.8 The Provider reserves the right to impose or adjust the limits on the total usage of the Service per User Account and these limits could differ with each Subscription offer.
4. AUDIT OF USERACCOUNT AND SERVICES
4.1 The Customer shall permit the Provider to audit the Service availed by the Customer in order to verify the name, login details, password of the Customer and use of Service by the Customer. Such audit right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer’s normal conduct of business. The Customer agrees to cooperate with the Provider’s audit and provide reasonable assistance and access to information.
4.2 If any of the audits referred to in this clause reveal that any password has been provided to any individual who is not a Customer, then without prejudice to the Provider’s other rights, the Customer shall promptly disable such passwords and the Provider shall not issue any new passwords to any such individual.
4.3 If any of the audits referred to in this clause reveal that the Customer has underpaid Subscription Fee or Consultancy Commission to the Provider, the Customer shall pay to the Provider an amount equal to such underpayment as calculated within 10 (ten) Business Days of the date of the relevant audit together with interest on the underpayment in accordance with clause 12.
5. COVENANTS OF THE CUSTOMER
5.1 The Customer agrees, covenants and undertakes that it shall not:
5.1.1 except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, reproduce, republish, download, display, transmit, communicate or distribute all or any portion of the Software or Documentation (as applicable) in any form or media or by any means; or attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or remove or modify any program or Software markings or any notice of the Provider’s or its licensors’ proprietary rights; remove or modify any trademarks of or attribution to the Provider on any reports, emails, communications or other material produced, generated or received through the Service.
5.1.2 access all or any part of the Service and Documentation in order to build a product or service which competes with the Service or the Documentation or use the Services in order to build or support or assist a third party in building or supporting, products or services competitive to the Provider;
5.1.3 except to the extent expressly permitted under this Agreement, make the programs, Software or materials resulting from the Service available in any manner to any third party for use in the third party’s business operations or attempt to obtain, or assist third parties in obtaining, access to the Services or Documentation;
5.1.4 disclose results of any Service or program, benchmark tests, without the Provider’s prior written consent;
5.1.5 license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Service or Documentation or materials available, to any third party other than, as expressly permitted under this Agreement.
5.2 The Customer shall:
5.2.1 comply with all applicable law with respect to its activities and shall maintain all necessary statutory and other approvals required to fulfil its obligations under this Agreement;
5.2.2 ensure that the use of the Service and Documentation is in accordance with the terms and conditions of this Agreement;
5.2.3 be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Provider’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
5.3 The Customer confirms that all information which it provides to use the Service and any additional information which it provides pursuant to this Agreement, will at the time it is provided and will continue to be true, accurate, current and complete.
5.4 The Customer acknowledges that the Provider has provided various express assurances in this Agreement. Therefore, to the extent permitted by applicable law, and except as expressly set out in this Agreement, the Provider excludes all other assurances (including without limitation, warranties and conditions) with respect to the Software, Documentation and Services, including without limitation any assurances relating to satisfactory quality or fitness for any particular purpose.
5.5 The Customer shall not use or permit use of the Service, including by uploading, emailing, posting, publishing or otherwise transmitting any material, for any purpose that may: (i) menace or harass any person or cause damage or injury to any person or property; (ii) violate privacy rights or promote bigotry, racism, hatred or harm; (iii) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters; (iv) constitute an infringement of intellectual property or other proprietary rights; (v)otherwise violate applicable laws. The designation of any such materials is entirely at the Provider’s sole discretion.
5.6 The Customer acknowledges that the Provider reserves the right to terminate subscription of User Accounts that are inactive for a continuous period of 180 days.
5.7 The Customer acknowledges that (i) the Provider does not endorse, support, sanction, encourage, verify or agree with the comments, opinions, or statements posted on the Website’s community forum; (ii) any information or material placed online, including advice, suggestions and opinions posted on the community forum by the Customer, are the views and responsibility of the Customer making the comments and do not necessarily represent the views of the Provider or its third party service providers. By submitting a comment for posting on the community forum, the Customer agrees that the Provider and its third party service providers are not responsible, and shall have no liability to the Customer, with respect to any information or materials posted by others, including defamatory, offensive or illicit material.
5.8 The Customer agrees that the Provider has a right to run advertisements and promotions on the Website including on the User Account and user interface. Advertisements placed on the Website may include but are not limited to banner ads, paid links, pop-up windows, buttons, and sponsorships. The Provider or third parties may, from time to time, send email messages to the Customer containing advertisements, special promotions, and other marketing materials. The Customer may choose to discontinue receiving these emails by notifying the Provider at any time. The Provider does not make any representation or warranty with respect to the content of any such email messages or any goods or services which may be obtained from such third parties, and the Customer agrees that the Provider shall not have any liability in this regard.
5.9 In addition to any other rights afforded to the Provider under this Agreement, the Provider reserves the right to remove or disable access to any material that violates the restrictions in this clause 5. The Provider shall have no liability to the Customer in the event that the Provider takes such action. The Customer agrees to defend and indemnify the Provider against any claim arising out of a violation of the Customer’s obligations under this clause.
7. SUPPORT SERVICES
7.1 The Provider shall use commercially reasonable endeavours to make the Service available 24 (twenty four) hours a day, 7 (seven) days a week, except for: (i) planned maintenance carried out during the maintenance window notified by the Provider to the Customer at least 6 (six) Normal Business Hours’ in advance; (ii) unscheduled maintenance performed outside Normal Business Hours, provided that the Provider has used reasonable endeavours to give the Customer notice in advance; (iii) Unscheduled or unplanned maintenance or disability in the functionality of the platform or cloud website wherein the Software is hosted; (iv) occurrence of Force Majeure Event.
7.2The Provider may use tools, scripts, software, and utilities (collectively, “Tools“) to monitor and administer the Service and to help resolve the Customer’s service requests. Data collected by the Tools may be used to assist in managing the Provider’s Software and Service.
8. CUSTOMER DATA
8.1 The Customer shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
8.2 The Provider shall follow its archiving procedures for Customer Data as set out in its Back-Up Policy in effect at the time that the Services are provided. The Provider may amend its Back-Up Policy in its sole and absolute discretion from time to time. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for the Provider to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Provider in accordance with the archiving procedure described in its Back-Up Policy. The Provider shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by the Provider to perform services related to Customer Data back-up).
8.3 The Provider shall make daily Backups archived for 30 days of Customer Data with the Provider’s technology. Access to backup files may incur additional charges depending on size of file. Customer Data will be made available in a standard database document.
8.4 The Provider is provided a limited license to collect, process, store, generate, and display Customer Data to the extent necessary in the providing of the Service. The Provider shall by use of reasonable commercial endeavors:
8.4.1 keep and maintain Customer Data in confidence consistent with its obligations as further described in this Agreement and applicable law to avoid unauthorized access, use, disclosure, or loss;
8.4.2 use and disclose Customer Data for the purpose of providing the Service, such use and disclosure being in accordance with this Agreement and applicable law.
8.5 If the Provider processes any personal data on the Customer’s behalf when performing its obligations under this Agreement, in such case:
8.5.1 the Customer acknowledges and agrees that the personal data may be transferred or stored outside the country where the Customer is located in order to carry out the Service and the Provider’s other obligations under this Agreement;
8.5.2 the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to the Provider so that the Provider may lawfully use, process and transfer the personal data in accordance with this Agreement on the Customer’s behalf;
8.5.3 the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
8.5.4 the Provider shall process the personal data only in accordance with the terms of this Agreement and any lawful instructions reasonably given by the Customer from time to time; and
8.5.5 the Customer shall take appropriate technical and organizational measures against unauthorized or unlawful processing of the personal data or its accidental loss, destruction or damage.
8.6 The Provider reserves the right to provide the Services from locations or through use of subcontractors, worldwide.
9. THIRD PARTY PROVIDERS
9.1 The Customer acknowledges that the Service provided under this Agreement are in conjunction with other websites for data storage and cloud platform facilities provided by other service providers and the terms and conditions of the agreements with the other service providers are applicable to the parties under this Agreement.
9.2 Third party technology that may be appropriate or necessary for use with some Provider programs is specified in the program documentation as applicable. The Customer right to use such third party technology is governed by the terms of the third party technology license agreement specified by the Provider in the program documentation or as applicable.
10. REPRESENTATIONS AND WARRANTIES
10.1 The Customer represents and warrants that, (i) It has all requisite power and authority to execute, deliver, and perform its obligations under this Agreement; (ii) the execution, delivery, and performance of this Agreement has been duly authorized by it and this Agreement constitutes legal, valid, and binding agreement of it and is enforceable against it in accordance with its terms, except as the enforceability may be limited by bankruptcy, insolvency, reorganizations, moratoriums, and similar laws affecting creditors’ rights generally and by general equitable principles; (iii) it shall comply with all applicable laws applicable to the performance by it of its obligations under this Agreement and shall obtain all applicable approvals, permits and licenses required of it in connection with its obligations under this Agreement.
11. DATA SECURITY AND CONFIDENTIALITY
11.1 The Provider agrees that the Customer email addresses and any personal Customer information will not be distributed or shared with third parties or persons. The Provider may use the Customer information to send administrative, system announcements and information regarding updates to the Service or company. The Provider may also send information related to promotions or marketing and events. The Customers can opt out of being contacted by the Provider, or receiving such information from the Provider, at any time by sending an email to the Provider.
11.2 The parties agree and undertake that during the Term of this Agreement and thereafter, the parties shall keep all confidential data and information disclosed and divulged by one party to other party and which is marked “Confidential” (“Confidential Information“) strictly confidential and shall not disclose or divulge the same to any person or third party.
11.3 Confidential Information shall exclude any information which the receiving party can demonstrate:
11.3.1 at the time of disclosure to the receiving party is in the public domain or thereafter enters the public domain, other than:
i. through the failure of the receiving party to fulfil its obligations under this Agreement; or
ii. as a compilation of otherwise public information in a form not publicly known provided that information shall not for these purposes be considered to be in the public domain or to have entered the public domain where that information is or was made available for inspection or published on any website under the rules or regulations of any applicable regulatory organisation in any jurisdiction or any listing authority or stock exchange; or
11.3.2 was already in the lawful possession of the receiving party at the date of this Agreement as evidenced by written records; or
11.3.3 was acquired by the receiving party from a third party which was not, to the knowledge of the receiving party, in breach of an obligation of confidence to the disclosing party or any of its affiliates or otherwise prohibited from disclosing the information to the receiving party; or
11.3.4 to the reasonable satisfaction of the disclosing party, was acquired by the receiving party through its own independent research.
11.4 Neither party shall use the Confidential Information of the other party for any purpose other than in relation to this Agreement. The parties shall keep this Agreement and its content confidential but shall be permitted to rely upon and disclose the same and any Confidential Information of the other party in any arbitration proceedings with reasonable prior written notice to other party.
12. SERVICE FEE AND TAXES
12.1 The Customer agrees to pay for all Services as set forth in the Subscription offer. The Subscription Fee applies to all User Accounts even if the Customer’s User Account is inactive. All Subscription Fees and Consultancy Commission due under this Agreement are non-cancelable and the sums paid are nonrefundable. Any delay by the Customer in payment of the Consultancy Commission shall make the Customer liable to pay interest @ 12 % per annum on the overdue amount from the due date of payment until actual payment to the Provider.
12.2 The Customer agree to bear and pay any sales, value-added or other similar taxes imposed by applicable law that the Provider must pay based on the Services the Customer avails, except for taxes based on the Provider’s income.
12.3 The Customer agrees to pay all Subscription amounts invoiced by the Provider within 7 (Seven) days of the date of the invoice. The Customer agrees that it has not relied on the future availability of any services, programs or updates in entering into the payment obligations for the Subscription; however, the preceding does not relieve the Provider of its obligation to deliver services that the Customer have subscribed to as per the terms of this Agreement.
13. INTELLECTUAL PROPERTY
13.1 The Customer acknowledges and agrees that the Provider and its licensors own all intellectual property rights in the Software, Documentation, Tools and all improvements and enhancements to them. Except as expressly stated herein, this Agreement does not grant the Customer any rights to any intellectual property rights or any other rights or licences in respect of the Service, Software, Tools or the Documentation.
13.2 The Customer grants to the Provider a perpetual license to use and display the Customer’s trademarks, logo and name on the Provider’s Website and on promotional material to show the Customer’s association with the Provider.
14.1 The Services provided under this Agreement shall be provided for the respective Subscription Periods unless earlier terminated in accordance with this Agreement. At the end of the Subscription Period, all rights to access or use the Services shall end and this Agreement shall terminate.
14.2 If the Customer wishes to terminate any Subscription of the Service it shall deliver to the Provider a termination notice 7 (seven) days prior to the expiry of any such monthly Subscription Period or 30 (thirty) days prior to the expiry of any such annual Subscription Period or other Subscription Period. In case of termination of an annual Subscription or for Subscriptions of more than 1 (one) year, the Customer shall be paid a refund for the remaining months of the Service from the date of termination. The refund amount shall be calculated on the basis that the Subscription Period was monthly and the monthly rate of Subscription shall be applied for each month and every month of the Subscription Period availed by the Customer and the balance amount if any shall be refunded to the Customer in accordance with the Services Policy of the Provider.
14.3 The Provider shall have the right to immediately suspend the User Account, and access to or use of the Services if the Customer fails to make payment to the Provider as required under this Agreement and the breach is not cured within 7 (Seven) days after the Provider’s notice requiring remedy of the breach.
7.4 On termination of this Agreement for any reason:
14.4.1 all licences and permissions granted under this Agreement and Service provided shall immediately terminate;
14.4.2 except as otherwise provided under this Agreement, the Customer shall not be entitled to any refund from the Provider.
14.5 At the Customer’s request, and for a period of up to 60 (sixty) days after the termination of this Agreement, the Provider may permit the Customer to access the Services solely to the extent necessary for the Customer to retrieve a file of the Customer Data then in the Services environment.
14.6 The Customer agrees and acknowledges that Provider has no obligation to retain the Customer Data and that the Customer Data may be irretrievably deleted after 60 (sixty) days following the termination of this Agreement.
15. FORCE MAJEURE
15.1 The Provider shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Provider or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, Viruses, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of machinery or equipment, fire, flood, storm or default of suppliers or sub-contractors (“Force Majeure Events“).
16.1 The Customer acknowledges that:
12.1.1 complex software is never wholly free from defects, errors and bugs, and the Provider gives no warranty or representation that the Software will be wholly free from such defects, errors and bugs; and
12.1.2 the Provider does not warrant or represent that the Software will be compatible with all available applications, programs or software.
16.2 Except as expressly and specifically provided in this Agreement:
16.2.1 the Customer assumes sole responsibility for results obtained from the use of the Service and the Documentation by the Customer, and for conclusions drawn from such use. The Provider shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Provider by the Customer in connection with the Service, or any actions taken by the Provider at the Customer’s direction;
16.2.2 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and
16.2.3 the Service and the Documentation are provided to the Customer on an “as is” basis.
16.3 The Provider does not guarantee that the Services will be performed error-free or uninterrupted, or that the Provider will correct all Service errors. The Customer acknowledge that the Provider does not control the transfer of data over communications facilities, including the internet, and that the service may be subject to limitations, delays, and other problems inherent in the use of such communications facilities.
16.4 To the extent not prohibited by applicable law, these warranties are exclusive and there are no other express or implied warranties or conditions including for hardware, systems, networks or environments or for merchantability, satisfactory quality and fitness for a particular purpose.
17. LIMITATION OF LIABILITY
The Provider shall not be liable to the Customer or any third-party claimant for any direct, indirect, consequential (including, without limitation, lost revenue, profits or data collected through the service), special, punitive or incidental damages, whether based on a claim or action of contract, warranty, negligence, strict liability, or other tort, breach of any statutory duty, indemnity or contribution, or otherwise, even if the Provider has been advised of the possibility of such damages.
18.1 The Customer shall indemnify and hold the Provider, its licensors, it’s holding company, subsidiaries, Affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) the use of the Services that infringes the rights of, or cause harm to, a third party or person; (ii) a breach by the Customer of its representations and warranties; and (iii) a breach by the Customer of any agreement, covenants or undertakings under this Agreement.
19.1 The Customer acknowledges that applicable laws relating to exports of the applicable government authority apply to the Services. The Customer agrees that such export control laws govern its use of the Services (including technical data) and any service deliverables provided under this Agreement, and the Customer agrees to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations).
19.2 The Customer agrees that no data, information, software programs or materials resulting from Service (or direct product) will be exported, directly or indirectly, in violation of these applicable laws, or will be used for any purpose prohibited by these applicable laws.
20. STATISTICAL INFORMATION
20.1 The Provider may compile statistical information related to the performance of the Service, and may make such information publicly available, provided that such information does not reproduce the Customer Data.
20.2 The Customer agrees (i) that the Provider may identify it as a recipient of Service and use its logo in sales presentations, marketing materials and press releases, and (ii) to develop a brief customer profile for use by Provider on the Website for promotional purposes.
20.3 The Provider retains all intellectual property rights in such information.
21. THIRD PARTY WEB SITES
21.1 The Service may enable the Customer to add links to web sites and access to content, products and services of third parties, including users, advertisers, affiliates and sponsors of such third parties. The Provider is not responsible for any third party websites or third party content provided on or through the Service and the Customer bears all risks associated with the access and use of such web sites and third party content, products and services.
22. GOVERNING LAW AND DISPUTE RESOLUTION
This Agreement shall be governed by and construed in accordance with the laws of the State of New South Wales, Australia without giving effect to any conflict of laws principles that may provide for the application of the law of another jurisdiction. The competent courts in New South Wales shall have exclusive jurisdiction in all matters arising out of this Agreement. Notwithstanding the foregoing, the Provider may seek injunctive or other equitable relief to protect its intellectual property rights in any court of competent jurisdiction.
The Customer consents to electronically receive and access, via email or the Website, all records, notices and communications for the Service provided under this Agreement. In order to ensure that Provider is able to provide records, notices and communications to the Customer electronically, the Customer must notify the Provider of any change in its email address by updating its User Account information on the Website or by contacting customer support.
All notices, consents demands and approvals under this Agreement must be delivered in writing by courier, by fax, or by certified or registered mail (postage prepaid and return receipt requested) to the Provider at the following address and will be effective upon receipt.
INSOLITUS PTY LTD.
134 Sutherland Road Beecroft NSW 2119 Australia
24.1 The Policies (if any) form an integral part of this Agreement. In case of any conflict between any of the provisions of any Policy and this Agreement, the provisions of this Agreement shall prevail. The Provider reserves the right to change or modify any of the terms and conditions contained in this Agreement, the Service, or any Policy governing the Service, at any time, by posting the new Agreement to the Website. The Customer is responsible for regularly reviewing the Website. The Customer’s continued use of the Website or the Service shall constitute its acceptance of any such changes and its Agreement to be legally bound by it.
24.2 None of the provisions of this Agreement shall be deemed to constitute a partnership among the parties and neither party shall have any authority to bind or shall be deemed to be the agent of the other in any way. This Agreement constitutes the entire agreement of the parties and supersedes any and all prior agreements between the parties (whether or not in writing) with respect to the subject matter of this Agreement. Each and every obligation under this Agreement shall be treated as a separate obligation and shall be severally enforceable as such and in the event of any obligation or obligations being or becoming unenforceable in whole or in part. Nothing expressed or implied in this Agreement is intended or shall be construed to confer upon or give any person, other than the parties to this Agreement any rights or remedies under or by reason of this Agreement or any transaction contemplated by this Agreement
24.3 Clause 12 (Service Fee and Taxes), Clause 13 (Intellectual Property), Clause 14 (Term), Clause 16 (Warranties), Clause 17 (Limitation of Liability), Clause 18 (Indemnity), 22 (Governing Law and Dispute Resolution), Clause 23 (Notices) and 24 (Miscellaneous) shall survive the termination of this Agreement.