These Terms and Conditions (Terms) form the agreement (Agreement)
between Daniel Webster trading as Serendesk (ABN 43 015 808 836) (referred to
as “Serendesk”, “we” or “us”) and the user
(referred to as “User” or “you”), collectively referred to as the
Parties or each a Party.
Serendesk owns the web based software (Software) which is
accessible at www.serendesk.com.au (Website).
The User wishes to use the Software.
This Agreement sets out the Terms upon which Serendesk has agreed
to grant the User a right to use the Software. These Terms are binding on any
use of the Software and apply to the User from the time that Serendesk provides
the User with an account to access and use the Software (Account).
By using our Software and subscribing on our Website, you acknowledge
that you have read, understood, and accepted these Terms and you have the
authority to act on behalf of any person or entity for whom you are using the
Software, and you are deemed to have agreed to these Terms on behalf of any
entity for whom you use the Software.
Serendesk reserves the right to make changes to these Terms at
any time, effective upon the posting of modified Terms. Serendesk will make
every effort to communicate these changes to the User via email. It is the
User’s obligation to ensure that the User has read, understood and agreed to
the most recent Terms available on our Website.
and Website Terms and Conditions, in each case, as amended from time to time,
which are available on the Website.
SOFTWARE AND SERVICES
The Software is a web based platform that includes the following
converting emailed customer support requests into tasks;
converting user’s customer support messages into email;
storing the user’s customers details;
storing user’s file attachments and uploaded files;
providing the user with tracking, searching, reporting and notification
capabilities for the tasks; and
providing a web based user interface,
collectively, the platform (referred to as the "Platform"
or the "Services").
The Software is provided to the User via the Website.
The User will only be able to access the Software by completing
an online subscription.
ONLINE SUBSCRIPTION AND ACCOUNT
When you subscribe online, the Website will request that you
provide personal information for subscription purposes. This personal
information that we collect, and how we deal with it, is set out in the Privacy
Policy available on our Website.
Information that is created when you subscribe, such as log in
details and passwords (User Information) are stored in servers in
Australia. We will take steps to ensure that User Information is kept secure
and confidential, by a host of security measures.
After the 1 month free trial period, if you wish to continue using our Software,
you will be required to pay a fee for your subscription (Subscription Fee) as set out on our Website. You will be given
an Account to access and use the Software once you have signed up for the 1 month free trial.
Upon subscription, the User obtains a valid Account to use the
Software, and Serendesk agrees to grant to the User a royalty free, worldwide,
revocable, non-exclusive, transferable right in the form of a license to use
the Software (License) which cannot be sub-licensed to third parties.
The Licence granted by us to you is subject to the following
an individual’s log-in details cannot be used by more than one
individual simultaneously; and
you are responsible to ensure that the Software is used in a manner
agreed upon within this Agreement by all parties that you provide with
Serendesk log on details, and you are responsible for any breach of these Terms
and Conditions by any such party.
If you wish to continue using the Software after the 1 month free trial period you agree to pay the Subscription Fee
required to enable you further access and use of the Software.
You will be required to make payment by way of Paypal and you must
make the payment within the timeframe set out on the invoice.
Customers can authorise automatic payments or manual payments via
their Pay Pal account.
If payment is not made within 30 days of due date, we may lock
your Account without notice to you, in which case you will not be able to
access your Account or use our Software. Any of the User’s data on the Account will
be deleted and not recoverable after 60 days, from the date that the Service is
suspended or terminated.
TERM AND TERMINATION
Your Account will continue for the minimum term which you
Following the end of the minimum term for which you subscribed,
your contract will automatically continue for the same duration, and at the
current applicable charges, stated on your invoice, unless you have provided
notice requesting service cancellation. You will be notified with a reminder
notice of the renewal date and we will provide you the ability to cancel your Service.
To terminate an Account, the User must log into their account
area https://accounts.serendesk.com.au, and under the service they wish to terminate
click on the ‘Manage’ option then click on the ‘Cancel’ menu for options.
The User will have the option to choose to terminate their account immediately or at the end of the billing cycle.
Automatic payments will cease at the end of the billing period that Serendesk is notified of the User’s intention to terminate.
Subject to the "14 Day Money Back Guarantee", monthly,
annual or bi-annual fees are not refundable if your Service is terminated part
way through a payment period.
It is the User’s responsibility to retrieve all necessary data
from their Account prior to termination.
We may terminate the Terms immediately, in our sole discretion,
you breach any of these Terms and do not remedy the breach within 14 days
after receiving notice of the breach if the breach is capable of being
you breach any of these Terms and the breach is not capable of being remedied;
we reasonably suspect that you are attempting to reverse engineer the
Software that is provided to you;
we consider that a request for a License is inappropriate, improper or
you fail to provide us with clear or timely instructions to enable us to
provide you with a License;
we consider that our working relationship has broken down including a
loss of confidence and trust;
where the User becomes liable to any bankruptcy, insolvency or external
Serendesk is made aware that a court order, judgement, decree,
determination or otherwise has been made to the effect that the User's data is
illegal, offensive, objectionable or in breach of a third party’s rights; or
for any other reason outside our control which has the effect of
compromising our ability to provide you with the required Software or License
within a required timeframe.
On termination or completion of the Services, we may retain your
documents (including copies) as required by law or regularity requirements.
Your express or implied agreement to the Terms constitutes your authority for
us to retain or destroy documents in accordance with the statutory periods, or
on termination of these Terms.
14 Day No Questions Asked Money Back Guarantee
Users who have purchased the Software are eligible to claim a "14
Day No Questions Asked Money Back Guarantee".
In order to claim a refund:
you must send an email to firstname.lastname@example.org within 14 days from
the date that the Service was provisioned (as defined by the invoice creation
date). You will then be provided with an acknowledgment receipt with a unique
identification number. If you do not receive the acknowledgement receipt, your
request has not reached our system and you should either resend your email or
call us immediately;
upon receipt, the request will be checked for eligibility. If the
request is determined to be ineligible (meaning it was received after the 14
days from the invoice creation date), the request will be treated as a standard
if the request is deemed eligible a refund of the Subscription Fee will
be issued to you.
The User warrants that all information provided to Serendesk is
true, accurate and complete.
You acknowledge and agree that:
you are authorised to use the Software and to access any information or
data that you input (Data) into the Software, including any Data which
has been inputted into the Software by any person you have authorised to do so;
the Software must only be used for your own lawful internal business
purposes, in accordance with these Terms;
all usernames and passwords required to access the Software are kept
secure and confidential;
if there is any unauthorised use of your passwords or any other breach
of security, you will immediately notify Serendesk of such activity;
the Software operates within the User’s computing or smart device system
(End User System);
the reliability of the Software is dependent upon the User’s
configuration and implementation of the Software; and
it is the responsibility of the User to determine that the Software
meets the needs of the User and their business, and is suitable for the
purposes for which the Software is used.
You may use the Software on behalf of others, but if you do so
you must ensure that you are authorised to do so and that all persons comply
with and accept all terms of this Agreement that apply to you.
Serendesk has no responsibility to any person or entity other
than you and nothing in this Agreement confers, or purports to confer, a
benefit on any person or entity other than you.
If you provide Serendesk log on details to any party other than
yourself, or if you use the Software on behalf of or for the benefit of anyone
other than yourself, you agree that:
you are responsible for ensuring that you have the right to do so;
Serendesk does not warrant the fitness for purpose or suitability of the
Software for such third party’s purposes and third parties may not rely on
Serendesk for any purpose;
you are responsible for authorising any person who is given access to
your Data, and you agree that Serendesk has no obligation to provide any person
or entity with access to such Data without authorisation from you and may refer
any requests for access to the Data to you to address;
you are responsible for any breach of these Terms and Conditions by any
such party; and
you will indemnify Serendesk, on first demand, against any and all claims,
expenses, liabilities or losses arising out of in connection with Serendesk’s
refusal to provide any persons with access to your Data in accordance with
these Terms and Serendesk making Data available to any person with
authorisation from you.
The use of the Software is at the User’s own risk.
You remain solely responsible for complying with all applicable
laws. It is your responsibility to ensure that the storage of and access to your
Data via the Software and the Website comply with laws which are applicable to
you, including any laws requiring you to retain records of your Data.
Serendesk performs daily backups, if the User requires additional
levels and forms of safeguards or back-ups it is the responsibility of the User
to have their own safeguards and back up processes in place
We do not warrant or represent that the Software will be
compatible with any application, program or software not specifically
identified as compatible as displayed on the Website at
You acknowledge and agree that you will not:
attempt to circumvent or disable the Software or any technology features
or measures in the Software by any means or in any manner;
attempt to modify, copy, adapt or reproduce the Software except as
necessary to use it for normal operation;
attempt to decompile, disassemble, reverse engineer, or otherwise
attempt to derive the source code for the Software;
distribute, encumber, sell, rent, lease, sub-license, or otherwise
transfer, publish or disclose the Software to any third party (except as
permitted under this Agreement);
remove or alter any trademark, logo, copyright or other proprietary
notices, legends, symbols or labels in or on the Software or used in connection
with the Software;
use the Software in any manner to aid in the violation of any third
party Intellectual Property, including but not limited to another’s copyrights,
trade secrets, and patents;
take any action that interferes, in any manner, with Serendesk’s rights
with respect to the Software;
attempt to undermine the security or integrity of Serendesk’s computing
systems or where the Software is hosted by a third party, that third party’s
computing systems and networks;
use, or misuse, the Software in any way which may impair the
functionality of the Software, Website, or other systems used to deliver the
Software or impair the ability of any other user to use the Software or Website;
attempt to gain unauthorised access to any materials other than those to
which you have been given express permission to access or to the computer
system on which the License for the Software is executed; or
transmit, or input into the Platform or Website, any files that may
damage any other person's computing devices or software, content that may be
offensive, or material or Data in violation of any law (including any content
protected by copyright or trade secrets which you do not have the right to
In addition, title, ownership rights and Intellectual Property
rights in and to any content displayed on the Website, or in the Software, or
accessed through the Website, or the Software, are the property of the
applicable content owner and may be protected by applicable copyright or other
law. This Agreement gives you no rights to such content.
You acknowledge that any breaches of this clause may lead to
termination of this Agreement.
Subject to sub-clause 9.2, the User agrees:
not to disclose the Confidential Information to any third party at any
to use its best endeavours to protect the Confidential Information from
any unauthorised disclosure;
only to use the Confidential Information for the purpose for which it
was disclosed by Serendesk and not for any other purpose; and
to be responsible for and assume liability in relation to each of its
employees, agents, consultants and contractors to whom Confidential Information
is disclosed and ensure that they maintain the confidentiality of the
Confidential Information and otherwise comply with the obligations set out in
(a) that is already in the public domain, except as a
result of the actions of the User in breach of any of the Terms of this
(b) received from a third party, except where there has
been a breach of confidence leading to its disclosure; or
(c) that must be disclosed
by law, provided that the Users reveals only so much of the Confidential
Information as the User is required by law to disclose and gives sufficient
notice to Serendesk in order to allow Serendesk to object to, or otherwise
prevent, the Confidential Information being disclosed.
This clause will survive termination of this Agreement.
We agree to comply with the legal requirements of the Australian
Privacy Principles as set out in the Privacy Act 1988 (Cth) and any
other applicable legislation or privacy guidelines, as set out in our privacy
policy which is available on our Website.
when you accept these Terms.
Title to, and all Intellectual Property rights in the Software,
the Website, and any documentation relating to the Software, remain the
property of Serendesk and its successors and permitted assigns. Your right to
use such Intellectual Property is subject to the terms of this Agreement.
You grant Serendesk a non-exclusive, worldwide, royalty free license
to use any Intellectual Property which subsists in the Data you provide in
connection with the use of your Account and the provision of the Services,
including copyright in any third party logos or other materials.
Title to and all Intellectual Property rights in any data you
input into the Software remain your property. However, your access to the data
and continued use of the Software is contingent on timely payments of your
You grant Serendesk a licence to use, copy, transmit, store, and
back-up your User Information and data for the purposes of enabling you to
access and use the Software and for any other purpose related to provision of
Services to you and the performance of our obligations under this Agreement.
Serendesk will endeavour to
prevent data loss, however, as the Software operates as a web-based service, with
some functionality provided through third parties, Serendesk does not make any
guarantees that there will be no loss of data and does not represent or warrant
that access to the Software, the Data or an Account will be available without
interruption. It is advisable that the User maintain
copies of all data which is inputted into the Software.
You acknowledge that from time to time we may apply upgrades or
updates to the Software (Updates). Any such Updates are provided to you
free of charge. These Updates may result in changes to the appearance and/or
functionality of the Software.
We will endeavour to give you reasonable prior electronic notice
of the installation of any significant update to the Software. Such notice
shall include details of any specific changes to the functionality of the Software
resulting from the installation of the Update.
If you wish you can Upgrade your service in order to access
additional functionality with payment of an additional charge. Please see the Website
The Software may contain automatic communications features which
relay certain non-personally identifiable information to Serendesk in
connection with the operation of the Software. This information may include
your Software settings and what version of the Software you are using.
Serendesk may use this information for research purposes including statistical
analysis of aggregate customer behaviour.
AVAILABILITY OF PLATFORM AND WEBSITE
Serendesk intends that access to the Platform and the Website
should be available 24 hours a day. Outside of the hours 8am to 8pm (time in
NSW, Australia), it is possible that the Platform or the Website will be unavailable
to due to maintenance or other development activity.
Where possible, Serendesk will provide notice to its Users of any
maintenance or development activity in advance by email.
Serendesk warrants that your uptime availability will be at least
98% each month except where failure results from:
failure or malfunction in relation to any device or equipment, any
software or power supply outside our control, unless caused by our wrongful act
your act or omission or that of a person under your direction or
general scheduled maintenance completed within the notified maintenance
a requirement, direction or any other order issued by an authority with
jurisdiction over the service; or
unauthorised or illegal access by any third party to the systems being
used to provide the services including virus dissemination, hacking, cracking,
and denial of service attacks.
The uptime service level within a specific month is not met if the
Software cannot be reached, in excess of 28.8 minutes x the days within any
given month (e.g. April 28.8 x 30 = 864 minutes, or 14.4 hours).
As your sole remedy for failure to meet the uptime service level
within a given month, we will credit your account with a percentage of the
monthly service fees as set up below:
Outage (in percentage) Service Credit
(percentage of monthly fee)
2 – 10 % 10% credit
11 - 20% 20% credit
21 – 30 % 40% credit
Processing of your claim will occur upon the formal request from
the User via written correspondence through Serendesk support channels. This
request will only be accepted if it is made within the same calendar month or the
following month as the relevant incident.
At your request, Serendesk will investigate any report of
downtime, and attempt to remedy any downtime expeditiously. If Serendesk
reasonably determines that all facilities, systems and equipment are functioning
properly, and that downtime arose from some other cause, we may at our
discretion continue to investigate the downtime at your request and expense.
TECHNICAL SUPPORT SEVERITY LEVELS
Problem Severity Level 1 problems are associated with:
services, as a whole, are non-functional or are not accessible and it is
not related to issues relating to the User’s internet, network or other related
unauthorised exposure of all of or part of the User's Data; or
loss or corruption of all or part of a User's Data.
The initial response time for Problem Severity Level 1 is 2
hours. We will work to resolve the request or the parties will mutually agree
upon a schedule within which to resolve the request.
Problem Severity Level 2 problems are associated with significant
and/or ongoing interruption of a User’s use of a critical function of the
Services and for which no acceptable work-around is available.
The initial response time for Problem Severity Level 2 is 4
hours. We will work to resolve the request or the Parties will mutually agree
upon a schedule within which to resolve the request.
Problem Severity Level 3 is associated with a problem that is:
minor and/or a limited interruption of a User's use of a non-critical
function of the Services; or
any other problems which are not considered by us a general enquiry and
does not fall into Problem Severity Levels 1 or 2.
The response time for a Problem Severity Level 3 is 72 hours. The
Parties will mutually agree upon a schedule within which to resolve the request.
General enquiries are associated with inquires or questions
pertaining to the Service. We will do the best we can to follow up general enquiries,
however there is no specific response time.
For general non-urgent support (for use when requiring non-urgent
support Level 3 Problem Severity) please contact Serendesk either via email
Support@serendesk.com.au or via phone on 1300 72 888 3.
Serendesk offers Users 24 hour priority urgent support (available
outside of NSW business hours, during weekends, and NSW Public Holidays) for
use only in urgent instances of Level 1 and 2 Severity. Urgent 24 hour contact
details can be found via the Website or by calling the Serendesk Support phone
number (1300 72 888 3) and listening for instructions on the after hour’s phone
message. Prior to logging the issue, please check that your local internet
connection is turned on and functioning.
Non-urgent support will be available within Australian business
hours, 5 days per week (Monday to Friday, excluding NSW public holidays) and
urgent support (Level 1 Problem Severity) will be available 24 hours/7 days per
We do not offer trouble shotting services for Users where:
the issue relates to your computer software (other than the Software),
hardware, internet network, or internal network; or
you choose to use a legacy program which Serendesk no longer offers. Serendesk
may discontinue support or negotiate a mutually agreed fee with you to continue
to provide support.
DATA EXPORTING AND IMPORTING
Raw data can be requested and provided to you in an excel or CSV
Upon email request from you, we will provide you with your raw
data within the first instant free of charge. On second and subsequent requests
for raw data a nominated fee is applicable. Please see the Website for the
Individual arrangements with you regarding method of delivering
raw data will be required and the delivery time frame may vary depending on
size of the data file.
Serendesk currently does not offer a data importing service for Users.
BACK UP AND RESTORATION
Point in time back-ups are taken every 24 hours for the purpose
of recovery in the event of application failure. Backups are encrypted and
stored within a location separate from the Data Centre. If requested, your
service's database can be rolled back to a time within the previous 7 day period
for an applicable fee; please see our Website for current fee. Backups are
stored for 7 days before being deleted.
As a courtesy User Data is stored within the database for 60 days
after account deactivation. After this time data will be deleted and once
deletion has occurred this data cannot be recovered.
FEEDBACK AND DISPUTE RESOLUTION
Your feedback is important to us. We seek to resolve your
concerns quickly and effectively. If you have any feedback or questions about
our Services, please contact us.
If there is a dispute between the Parties in relation to these
Terms, the Parties agree to the following dispute resolution procedure:
The complainant must tell the respondent in writing, the nature of the
dispute, what outcome the complainant wants and what action the complainant
thinks will settle the dispute. The Parties agree to meet in good faith to
seek to resolve the dispute by agreement between them (Initial Meeting).
If the Parties cannot agree how to resolve the dispute at the Initial
Meeting, any Party may refer the matter to a mediator. If the parties cannot
agree on who the mediator should be, the complainant will ask the Law Society
of NSW to appoint a mediator. The mediator will decide the time and place for
mediation. The Parties must attend the mediation in good faith, to seek to
resolve the dispute.
Any attempts made by the Parties to resolve a dispute pursuant to
this clause are without prejudice to other rights or entitlements of the
Parties under these Terms, by law or in equity.
LIMITATION OF LIABILITY AND DISCLAIMERS
Serendesk and the User agree that Serendesk’s liability for the
Services provided via the Platform and the Website is governed solely by the
Australian Consumer Law to the extent applicable, and this Agreement.
You acknowledge that whilst Serendesk will take reasonable steps
to ensure that the Software will be fit for the purposes as advertised, Serendesk
gives no guarantees that:
the Software will meet your requirements as the functionality of the
Software is dependent upon configuration with the End User System and other
the Software will work in each of your desired use case scenarios; and
the Software can be executed on every operating system, as it is
impossible to test each variant.
The Software uses third party hosting services which are provided
without any sort of warranties, and Serendesk cannot ensure that these third
party hosting services are provided free of defect or without interruption.
Serendesk does not warrant that use of the Platform will be
uninterrupted or error free. The operation of the Platform is dependent on
public telephone services, computer networks, the Internet, which can be
unpredictable and may from time to time interfere with the use of the Service.
Serendesk accepts no responsibility for any such interference or prevention of
your use of the Platform.
Serendesk Software is complex, and all complex software may never
be wholly free from defects, errors or bugs, and as such Serendesk does not
warrant that the Software will be wholly free from defects, errors or bugs and
unexpected interruptions may occur.
All risk arising out of the use or performance of the Software
remains with you. You understand and agree that the use of the Software,
material or data downloaded or otherwise obtained through the use of the
Software, is at your own discretion and risk and that you will be solely
responsible for any infections, contaminations or damage to your computer,
system or network. Serendesk is not responsible or liable for delays,
inaccuracies, errors or omissions arising out of your use of the Software, any
third party software or operating system.
Serendesk has implemented and
will maintain security systems for the transmission of information, consisting
of encryption and "firewall" technologies that are understood in the
industry to provide adequate security for the transmission of such information
over the Internet. Serendesk does not guarantee the security of the Services and
Serendesk will not be responsible in the event of any infiltration of its
security systems, provided that Serendesk has used commercially reasonable
efforts to prevent any such infiltration. You acknowledge and agree that you, and
not Serendesk is responsible for the security of data or any other information
stored on your computers, devices or servers,
and that Serendesk is not responsible for any other party's computers,
devices or servers.
To the maximum extent permitted by applicable law, Serendesk and
its licensors disclaim all warranties, express or implied, including, without
limitation, any implied warranties of merchantability, fitness for a particular
purpose and non-infringement of third party intellectual property rights or
lack of viruses, for the Software. In no event will Serendesk or its licensors
be liable for any consequential, incidental, indirect, special, punitive, or
other damages whatsoever arising out of this Agreement, the use of or inability
to use the Software, even if Serendesk has been advised of the possibility of
The Software is not intended for use in the operation of medical instruments, water craft, military installations, warfare
equipment, industrial control systems and or SCADA systems and or robotic systems,
surgical/medical application or equipment, artificial intelligence application
or system, gambling/wagering system, and prototype, experimental or single
product items, nuclear facilities, aircraft navigation or communications
systems or air traffic control machines or any other machines in which case the
failure of the Software could lead to death, personal injury or severe physical
or environmental damage.
The User acknowledges that Serendesk may pursue any available
equitable or other remedy against you as a result of a breach by the User of
any provision of this Agreement.
Serendesk or its licensors’ liability for breach of any of its
obligations under this Agreement for the Software, or breach of any warranty
implied by law, will be limited, to the extent permitted by law, to the total
price paid for the License to execute the Software or any related Services. Serendesk’s
total liability to you for all damages in connection with the Software will not
exceed the price paid by you under this Agreement for the Software. The
foregoing limitations, exclusions and disclaimers will apply to the maximum
extent permitted by applicable law, even if any remedy fails its essential
The User acknowledges and agrees that Serendesk will not be
liable for any non-compensatory damages including punitive, aggravated,
multiple, exemplary, liquated or any other non-compensatory damages or the
consequences of non-payment.
AUSTRALIAN CONSUMER LAW
Certain legislation including the Australian Consumer Law (ACL)
in the Consumer and Competition Act 2010 (Cth), and similar
consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of
Services by us to you which cannot be excluded, restricted or modified (Statutory
Nothing in these Terms removes your Statutory Rights as a
consumer under the ACL. You agree that our liability for Services provided to
consumers is governed solely by the ACL and these Terms. We exclude all
conditions and warranties implied by custom, law or statute except for your
Except for your Statutory Rights, all material and work is
provided to you without warranties of any kind, either express or implied; and
we expressly disclaim all warranties of any kind including but not limited to
implied warranties of merchantability and fitness for a particular purpose.
If you are a consumer as defined in the ACL, the
following applies to you: We guarantee that the services we supply to
you are rendered with due care and skill; fit for the purpose that we
advertise, or that you have told us you are acquiring the services for or for a
result which you have told us you wish the services achieve, unless we consider
and disclose that this purpose is not achievable; and will be supplied within a
reasonable time. To the extent we are unable to
exclude liability; our total liability for
loss or damage you suffer or incur from our services is limited to us re-supplying
the services to you, or, at our option, us refunding to you the amount you have
paid us for the services to which your claim relates.
You will be liable for and agree to indemnify, defend and hold us
harmless for and against any and all claims, liabilities, suits, actions and
expenses, including costs of litigation and reasonable legal costs, resulting
directly or indirectly from: (i) any information
that is not accurate, up to date or complete or is misleading or a
misrepresentation; (ii) any breach of these Terms; (iii) and any misuse of the Software and/or License; from or by
you, your employees, contractors or agents.
21.2 You agree to co-operate with us (at your own expense)
in the handling of disputes, complaints, investigations or litigation that
arise as a result of your use of our Software and License including but not
limited to disputes, complaints, investigations or litigation that arises out
of or relates to incorrect information you have given us.
The obligations under this clause will survive termination of
Any notice required or permitted to be given to the User under
these Terms will be addressed to the User at the email address provided by the
User when requesting a License.
RELATIONSHIP OF PARTIES
Neither Party is authorised to bind the other Party in any way
without prior written consent of the other Party.
The Parties acknowledge and agree that they will not seek to bind
the other Party other than with the prior written consent of the other Party.
RIGHTS OF THIRD PARTIES
Any person or entity who is not a party to these Terms has no
right to benefit under or to enforce any of these Terms.
This Agreement is personal to the Parties. A Party must not
assign or deal with the whole or any part of its rights and/or obligations
under this Agreement without the prior written consent of the other Parties.
Any purported dealing in breach of this clause is of no effect.
WAIVER OR VARIATION OF RIGHTS
Any failure or delay by a Party in exercising a power or right
(either wholly or partially) in relation to this Agreement does not operate as
a waiver or prevent that Party from exercising that power or right or any other
power or right.
A Party is not liable to any other Party for any loss, cost or
expense that may have been caused or contributed to by the failure, delay,
waiver or exercise of a power or right.
POWERS, RIGHTS AND REMEDIES
Except as expressly stated to the contrary in this Agreement, the
powers, rights and/or remedies of a Party under this Agreement are cumulative
and are in addition to any other powers, rights and remedies of that Party.
Nothing in this Agreement merges, extinguishes, postpones, lessens or otherwise
prejudicially affects any power, right, or remedy that a Party may have at any
time against the other Party to this Agreement or any other person.
Neither Party will be liable for any delay in performing any of
its obligations under this Agreement if such delay is caused by circumstances
beyond the reasonable control of the party so delaying, and such party will be
entitled to a reasonable extension of time for the performance of such
CONSENTS AND APPROVALS
Where this Agreement provides that a Party may conditionally or
unconditionally give or withhold any consent or approval in relation to any
matter in this Agreement, that Party may in its absolute discretion, and
without being obliged to give reasons for doing so, withhold any consent or
approval or give consent or approval conditionally or unconditionally.
Each Party must from time to time and in a timely manner do all
things reasonably required of it by another Party to give effect to this
If any provision of these Terms is held by any competent authority
to be invalid or unenforceable in whole or in part, the validity of the other
provisions of these Terms and the remainder of the provisions in question will
not be affected.
This Agreement may be executed in any number of counterparts and,
if so, the counterparts taken together will constitute one and the same
ENTIRE AGREEMENT AND UNDERSTANDING
The date of this Agreement is the date that these Terms are
accepted by the User.
In respect of the subject matter of this Agreement:
this Agreement contains the entire understanding between the Parties;
all previous oral and written communications, representations,
warranties or commitments are superseded by this Agreement and do not affect
the interpretation or meaning of this Agreement.
GOVERNING LAW AND JURISDICTION
This Agreement is governed by the laws of NSW and the
Commonwealth of Australia. Each party irrevocably and unconditionally submits
to the exclusive jurisdiction of the courts operating in NSW.
Confidential Information includes confidential
information about the business, structure, programs, processes, methods,
operating procedures, activities, products and services, trade secrets, know
how, financial, accounting, marketing and technical information, customer and
supplier lists (including prospective customer and supplier information),
ideas, concepts, know-how, Intellectual Property, technology, and other
information whether or not such information is reduced to a tangible form or
marked in writing as "confidential".
Intellectual Property includes any and all
intellectual and industrial property rights throughout the world, whether
subsisting now or in the future and includes all copyright and analogous
rights, all rights in relation to inventions (including patent rights),
registered and unregistered trademarks, designs (whether or not registered or
registrable), circuit layouts, trade names, trade secrets, business names,
company names or internet domain names.
Last update: 20 February