Terms of Service

IMPORTANT NOTICE

CloudeNotes is an online communication tool used by children’s schools, clubs and other organizations to facilitate any required electronic consents (E-signatures), communications and payments with parents/caregivers. Any use of CloudeNotes by persons under the age of 18 years is strictly prohibited.

It is important that you read these Terms of Service to understand how CloudeNotes works to enhance care for children and communication between organizations and parents/caregivers.

CloudeNotes is only a tool and is not responsible for any content uploaded into CloudeNotes nor any consents, communications or payments between parents/caregivers and organizations that use CloudeNotes.

PARTICULARS

A

KEY TERMS

A.1

The following terms are used regularly throughout these Terms of Service and have a particular meaning:

(a)

CloudeNotes means the CloudeNotes application accessible from https://cloudenotes.com.au

(b)

Agreement means the agreement formed in accordance with these Terms of Service between the Company and the User.

(c)

Child means a legal minor being cared for by an Organization.

(e)

Fee means any fee paid by a User for access to or use of CloudeNotes.

(f)

Organization means any school, club, society or other provider of care to a Child that uses CloudeNotes.

(g)

Organization Identifier means the name, logo or any other words or marks associated with an Organization or used to identify it.

(h)

The Company means OTC Trading Pty Ltd trading as CloudeNotes ABN 79 142 676 819.

(i)

Privacy Policy means CloudeNotes privacy policy.

(j)

Staff Member means any employee, volunteer or other personnel of an Organization, including teachers, coaches, instructors etc.

(k)

Student means a Child of School going age.

(l)

User means any Caregiver, Organization and Staff Member that uses CloudeNotes.

(m)

Caregiver means the Parent or legal Guardian of a Child.

B

AGREEMENT

B.1

This Agreement governs the use of CloudeNotes by any User and limits the liability of the Company to any User. This Agreement has specific terms of use (in addition to the General Conditions) that apply to:

(a)

Parents/Caregivers (Item C)

(b)

Organizations (Item D)

(c)

Staff Members (Item E)

(d)

Students (Item F)

B.2

In addition to any other express or implied consents, by using CloudeNotes the User accepts and agrees to the terms of:

(a)

This Agreement; and

(b)

The Privacy Policy.

C

PARENTS/CAREGIVERS TERMS OF USE

C.1

CloudeNotes enables the Caregiver to:

(a)

Consent to activities and actions for the Child at the Organization;

(b)

Communicate with the Organization and its Staff Members;

(c)

Input Health Information about their Child;

(d)

Make payments to the Organization through CloudeNotes; and

(e)

View a record of all their activities within CloudeNotes.

(f)

Download and use Mobile Application. See Mobile Application Terms Here.

C.2

The Caregiver agrees and accepts that:

(a)

CloudeNotes may share the Health Information and other personal information of their Child with any Organization authorized by the Caregiver;

(b)

To correspond with the Caregiver, the Organization must use the Caregiver’s contact information and Child’s information;

(c)

Some communications are emergent and cannot be opted-out;

(d)

The Organization and its Staff Members may use CloudeNotes to request consents, make communications and request and receive payments from the Caregiver, in conjunction with other means of correspondence (such as paper notes);

(e)

CloudeNotes will send the Caregiver emails and text messages on behalf of the Organization and/or Staff Members;

(f)

Any consent made through CloudeNotes is valid and binding unless and until revoked by the Caregiver, and the Organization may rely on the validity of the consent;

(g)

Payments made by the Caregiver through CloudeNotes may attract a small service Fee (which shall be notified in writing to the Caregiver or listed on the website prior to any transaction);

(h)

Any refunds, for any reason whatsoever, are the responsibility of the Organization; and

(i)

Child information is not used or controlled by CloudeNotes,

D

ORGANIZATION TERMS OF USE

D.1

CloudeNotes enables the Organization to:

(a)

Upload and input Child information;

(b)

Upload and input Caregiver information (including contact information);

(c)

Organize Child information by class/team/group etc;

(d)

Authorize Staff Members to access and use CloudeNotes;

(e)

Create forms and mail messages to:

i

Request consents from Caregivers to undertake activities or actions with or for their Child;

ii

Request information from Caregivers;

iii

Communicate with Caregivers;

iv

Request payment from Caregivers;

(f)

Manage and reconcile consents, communications and payments with and from Caregivers;

(g)

View a record of all of the activities within CloudeNotes by the Organization, its Staff Members and Caregivers.

D.2

The Organization agrees that:

(a)

It has in place a current and compliant Privacy Policy covering how it handles personal information, including Child information and Health Information;

(b)

It shall only use the CloudeNotes for its intended purpose as set out in this Agreement;

(c)

It shall comply with all anti-SPAM legislation in its jurisdiction;

(d)

It is solely responsible for the use of the Child information uploaded or input into CloudeNotes by any Staff Member; and

(e)

It grants the Company a royalty free license to use any Organization Identifier in any form, media or technology for the purpose of promoting or marketing CloudeNotes

(f)

It’s license to use CloudeNotes, as provided for in the General Conditions, is subject the payment of all necessary Fees.

D.3

Registration:

(a)

Any person who registers an Organization on CloudeNotes warrants he or she is an authorized representative of that Organization, with the requisite authority to bind the Organization to this Agreement

D.4

Payments:

(a)

The Organization authorizes and appoints the Company to act as its payment agent to receive money on its behalf through CloudeNotes.

(b)

The Company authorizes the Organization to use CloudeNotes and to promote it as an available payment method to Caregivers.

(c)

The Organization warrants that it shall only request payments through CloudeNotes for which it is rightfully entitled to charge.

(d)

The Company warrants that it will diligently pay funds received on behalf of the Organization to the Organization as per Funds Transfer Requests.

(e)

Any Fees shall be deducted from monies received by CloudeNotes on behalf of the Organization.

(f)

All payments made through CloudeNotes shall be made by credit card. The User acknowledges:

i

All transactions will be processed by a third party,

ii

The User may choose to store their credit card details with the third party; and

iii

CloudeNotes will not store the Users credit card details.

E

STAFF MEMBER TERMS OF USE

E.1

Staff Members agree to use CloudeNotes in accordance with the rights and obligations of the Organization that authorizes their access.

F

STUDENT TERMS OF USE

F.1

Students under the age of 18 years are prohibited from using CloudeNotes.

G

ELECTRONIC TRANSACTIONS

G.1

The User agrees that when it provides any consent, authority or agreement through CloudeNotes it does so as an electronic transaction and warrants that such transaction shall be binding on the party.

G.2

The User is under no obligation to provide a consent, authority or agreement through an electronic transaction.

G.3

The User may choose to:

(a)

Print a hard copy of a consent, authority or agreement from CloudeNotes; or

(b)

Request an Organization provide the User with a hard copy of a consent, authority or agreement and provide their consent, authority or agreement to the Organization in hard copy.

H

VERIFICATION

H.1

The User is solely responsible for verifying the identity of a signatory to any electronic transaction it is a party to.

H.2

The Company does not guarantee the validity of any electronic transaction.

I

TERM & LIMITATIONS

I.1

Term.

The User’s license to access CloudeNotes shall be ongoing until terminated by CloudeNotes in accordance with this Agreement.

I.2

Limitations on Use.

CloudeNotes may limit or restrict access to CloudeNotes from time-to-time as it sees fit, including (but not limited to):

(a)

Entities. CloudeNotes may restrict access only to reputable and/or registered organizations; and

(b)

Location. CloudeNotes may restrict access to CloudeNotes to certain jurisdictions where it is able to offer CloudeNotes.

J

REGISTRATION

J.1

Registration.

CloudeNotes may limit or restrict access to CloudeNotes from time-to-time as it sees fit, including (but not limited to):

(a)

The User must register an account in CloudeNotes to use CloudeNotes.

(b)

CloudeNotes may set any registration requirements in its absolute discretion.

K

CONFIDENTIAL INFORMATION

K.1

CloudeNotes will keep confidential all information that it becomes aware of regarding the User’s:

(a)

Personal information;

(b)

Child information; and

(c)

Business, employees and contractors;

L

TERMINATION

L.1

Either party may end this Agreement at any time by 30 days’ written notice to the other party.

L.2

Where CloudeNotes terminates this Agreement without cause, it shall provide a pro-rata refund for any fees paid in advance.

M

DISCLAIMER – THIRD PARTY SERVICES

M.1

The User acknowledges that CloudeNotes is dependent on third-party services, including but not limited to banks, credit card providers, BPAY and telecommunications services.

M.2

The User agrees that CloudeNotes shall not be responsible or liable in any way for interruptions to the availability of CloudeNotes due to third-party services.

N

GENERAL

N.1

Governing Law. New South Wales, Australia

N.2

Reference City. Sydney.

SPECIAL CONDITIONS

1

EFFECT OF SPECIAL CONDITIONS

1.1

The parties may agree to any Special Conditions to this Agreement in writing. Where the parties make such Special Conditions those Special Conditions shall prevail over any inconsistency with any other provisions of this Agreement

GENERAL CONDITIONS

1

BACKGROUND

1.1

The User wishes to access CloudeNotes provided by the Company.

1.2

The terms and conditions in this Agreement govern the provision of CloudeNotes to the User by the Company.

2

INTERPRETATION

2.1

The following definitions apply in this document:

(a)

ABN means Australian Business Number

(b)

ACN means Australian Company Number.

(c)

Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in the Reference City set out in item L of the Particulars.

(d)

Commencement Date means the date set out in this Agreement.

(e)

Confidential Information means all information (whether or not it is described as confidential) in any form or medium concerning any past, present or future business, operations or affairs of either party, including, without limitation:

i

All technical or non-technical data, formulae, patterns, programs, devices, methods, techniques, plans, drawings, models and processes, source and object code, software and computer records;

ii

All business and marketing plans and projections, details of agreements and arrangements with third parties, and customer and supplier information and lists;

iii

All financial information, pricing schedules and structures, product margins, remuneration details and investment outlays;

iv

All information concerning any employee, customer, contractor, supplier or agent of the relevant party;

v

The party's policies and procedures; and

vi

But excludes information that the other party can establish:

vii

Is known by or is in the other party's possession or control other than through a breach of this document and is not subject to any obligation of confidence; or

vii

Is in the public domain other than by a breach of this document or any obligations of confidence.

(f)

Corporations Act means the Corporations Act 2001 (Cth).

(g)

Fees means the fees and charges as set out in the Particulars.

(h)

Force Majeure means an event or cause beyond the reasonable control of the party claiming force majeure. It includes each of the following, to the extent it is beyond the reasonable control of that party:

i

Act of God, lightning, storm, flood, fire, earthquake or explosion cyclone, tidal wave, landslide, adverse weather conditions;

ii

Act of public enemy, war (declared or undeclared), terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic;

iii

The effect of any change in applicable laws, orders, rules or regulations of any government or other competent authority; and

iv

Embargo, inability to obtain necessary materials, equipment or facilities, or power or water shortage.

(i)

General Conditions means the terms and conditions set out in the section of this Agreement entitled “General Conditions”.

(j)

GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

(k)

Intellectual Property means all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property;

(l)

Intellectual Property Rights means, for the duration of the rights in any part of the world, any Moral Rights, industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property, applications for the registration of any Intellectual Property and any improvements, enhancements or modifications to any Intellectual Property registrations.

(m)

Health Information has the meaning given to it in the Privacy Act.

(n)

Moral Rights means:

i

Moral rights pursuant to the Copyright Act 1968 (Cth);

ii

Or any rights analogous to the rights set out in Article 6bis of the Berne Convention for Protection of Literary and Artistic Works 1886 (as amended from time to time).

(o)

Particulars means this Agreement’s details and variables set out in the section of this Agreement entitled “Particulars”.

(p)

Pricing means the pricing set out in this Agreement or as notified to the User in writing by the Company from time-to-time.

(q)

Privacy Act means the Privacy Act 1989 (Cth).

(r)

Solution means the solution described in the Particulars.

(s)

Special Conditions means the terms and conditions set out in the section of this agreement entitled “Special Conditions”.

(t)

Tax Invoice has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

(u)

User Content means data that is uploaded or input into CloudeNotes by the User or that forms part of the User’s Intellectual Property.

2.2

Headings are only for convenience and do not affect interpretation. The following rules apply unless the context requires otherwise:

(a)

The singular includes the plural and the opposite also applies.

(b)

If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.

(c)

A reference to a clause refers to clauses in this Agreement.

(d)

A reference to legislation is to that legislation as amended, re enacted or replaced, and includes any subordinate legislation issued under it.

(e)

Mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included.

(f)

A reference to a party to this Agreement or another agreement or document includes that party’s successors and permitted substitutes and assigns (and, where applicable, the party’s legal personal representatives).

(g)

A reference to information is to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets.

3

APPLICATION

3.1

This Agreement applies to use of and access to CloudeNotes.

3.2

Where the User does not accept the terms and conditions of this Agreement, the User must immediately cease using CloudeNotes.

3.3

This Agreement may be updated by the Company at its absolute discretion from time-to-time, and unless stated otherwise by the Company in writing, such updates shall come into effect for use of CloudeNotes at the User’s next login after the User receives written notice of the update(s).

4

SOLUTION

4.1

CloudeNotes is the product described in the Particulars.

4.2

CloudeNotes is only accessible to the User for the term set out in the Particulars.

4.3

The User agrees and accepts that CloudeNotes is:

4.4

CloudeNotes is only accessible to the User for the term set out in the Particulars.

(a)

Hosted by the Company and shall only be installed, accessed and maintained by the Company, accessed using the internet or other connection to the Company servers and is not available ‘locally’ from the User’s systems; and

(b)

Managed and supported exclusively by the Company from the Company servers and that no ‘back-end’ access to CloudeNotes is available to the User unless expressly agreed in writing.

4.5

As a hosted and managed service, the Company reserves the right to upgrade, maintain, tune, backup, amend, add or remove features, redesign, improve or otherwise alter CloudeNotes..

4.6

The Company shall not exercise its rights under clause 4.4 in a manner that would intentionally cause the User to lose access to User Content or fundamentally decrease the utility of CloudeNotes to the User, other than in accordance with the terms of this Agreement.

5

LICENSE

5.1

By accepting the terms and conditions of this Agreement, the User is granted a limited, non-exclusive and revocable license to access and use CloudeNotes for the duration of this Agreement, in accordance with the terms and conditions of this Agreement.

5.2

The Company may issue the license to the User on the further terms or limitations (including the number of users or volume of use or transactions) as it sees fit.

5.3

The Company may revoke or suspend the User’s license(s) in its absolute discretion for any reason that it sees fit, including for breach of the terms and conditions in this Agreement by the User or any of its users. The Company will ordinarily advise the User of any suspension or revocation however it is under no obligation to do so.

6

USE

6.1

The User agrees that it shall only use CloudeNotes for legal purposes and shall not use it to engage any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by the Company in its discretion.

7

AUTHORIZED USERS

7.1

The User shall authorize users to access CloudeNotes in its absolute discretion. The Company accepts no liability for access to User Content by users authorized by the User or using login details of users authorized by the User.

7.2

The User is solely responsible for the security of its username and password for access to CloudeNotes.

7.3

In the event the security of the User’s username and/or password for access to CloudeNotes is breached, or the User suspects has been breached, it is the responsibility of the User to change these details on CloudeNotes.

7.4

The User is responsible for ensuring that users comply with this Agreement in full and are liable for any breach of them.

8

CUSTOMER DATA

8.1

The Company obtains no right, title or interest in User Content including any Intellectual Property found within it. The Company accepts no liability for the content of User Content.

8.2

The User is responsible for the accuracy, quality and legality of User Content and the User’s acquisition of it, and the users that create, access and/or use User Content.

8.3

Despite clause 8.1 The Company shall be authorized to permanently delete User Content where outstanding Fees remain unpaid in accordance with clauses 10 and 11.

8.4

The Company shall not access, use, modify or otherwise deal with User Content except where required by compulsion of law or upon the User’s authority (such as to provide support for CloudeNotes).

9

PRIVACY

9.1

The Company maintains the Privacy Policy in compliance with the provisions of the Privacy Act for data that it collects about the User and other customers.

9.2

The Privacy Policy does not apply to how the Organization handles personal information. It is the Organization’s responsibility to meet the obligations of the Privacy Act by implementing a Privacy Policy in accordance with law.

9.3

The Company makes no warranty as to the suitability of CloudeNotes in regards to the Organization’s privacy obligations at law or contract, and it is the Organization’s responsibility to determine whether CloudeNotes is appropriate for the Organization’s circumstances.

9.4

The CloudeNotes website may use cookies (a small tracking code in your browser) to improve a User’s experience while browsing, while also sending browsing information back to the Company . The User may manage how it handles cookies in its own browser settings.

10

FEES

10.1

The User agrees to pay all Fees as and when they fall due and to the extent permissible by law. Fees are non-cancellable and/or non-refundable once ordered or paid.

10.2

The Company may introduce new services with corresponding Fees by giving the User written notice of their availability and applicability.

10.3

The Company shall maintain all Fees for the term of the license paid for by the Organization.

10.4

The Company shall notify the User of any changes to existing Fees no less than 14 days before the end of the term of the Organization’s license .

10.5

The Company may revoke or suspend the User’s license to access CloudeNotes for unpaid Fees without liability.

10.6

Where the Company :

(a)

Is required to perform any services for the User outside of what is set out in this Agreement or otherwise in writing; and

(b)

Is subject to delays caused by changes or complexities outside of its control (and not caused by its breach of this Agreement); then The User agrees that the Company shall be entitled to charge the User an additional amount that is reasonable for the service performed.

10.7

All transactions are processed in Australian Dollars in Australia. If your currency is not listed, then the transaction will be processed United States dollars.

10.8

GST is applicable to any Fees charged by CloudeNotes to Users within Australia. Unless expressed otherwise, all Fees shall be deemed exclusive of GST. CloudeNotes will provide the Member with a Tax Invoice for its payment.

10.9

No refunds of Fees are offered other than as specified in this Agreement or as required by law.

11

INVOICING & PAYMENTS

11.1

The Company shall issue the User a Tax Invoice for all Fees for which GST applies.

11.2

The terms of payment set out in the Fees shall apply.

11.3

Should the User dispute a Tax Invoice, the User must notify the Company of the disputed item within 5 Business Days of the date of the Tax Invoice. The User must pay the amount of the Tax Invoice not in dispute within the prescribed payment period.

11.4

Overdue Tax Invoices shall accrue interest at the rate of 1.5% per month, or in default, the maximum rate of penalty interest prescribed under law.

11.5

The User authorizes The Company to use the User’s information for the purposes of obtaining a credit assessment or to otherwise make investigations as to the User’s payment history.

12

DATA

12.1

Security.The Company takes the security of CloudeNotes and the privacy of its users very seriously. The User agrees that the User shall not do anything to prejudice the security or privacy of the Companies systems or the information on them.

12.2

Transmission. The Company shall do all things reasonable to ensure that the transmission of data occurs according to accepted industry standards. It is up to the User to ensure that any transmission standards meet the User’s operating and legal requirements.

12.3

Storage. The Company may limit the amount of data that the User stores in CloudeNotes, and shall advise the User of such. Data that is stored with the Company shall be stored according to accepted industry standards.

12.4

Backup. The Company shall perform backups of its entire systems in as reasonable manner at such times and intervals as is reasonable for its business purposes. The Company does not warrant that it is able to backup or recover specific User Content from any period of time unless so stated in writing by the Company .

13

ACCESS

13.1

Solution. By accepting the terms of this Agreement the User agrees that the Company shall provide access to the solution to the best of its abilities, however it accepts no responsibility for ongoing access to CloudeNotes.

14

INTELLECTUAL PROPERTY

14.1

Trademarks. The Company has moral & registered rights in its trademarks and the User shall not copy, alter, use or otherwise deal in the marks without the prior written consent of the Company .

14.2

Proprietary Information. CloudeNotes may use software and other proprietary systems and Intellectual Property for which the Company has appropriate authority to use, and the User agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally. The User warrants that it shall not infringe on any third-party rights through the use of CloudeNotes.

14.3

Solution. The User agrees and accepts that CloudeNotes is the Intellectual Property of the Company and the User further warrants that by using CloudeNotes the User will not:

(a)

Copy CloudeNotes or the services that it provides for the User’s own commercial purposes; and

(b)

Directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in CloudeNotes or any documentation associated with it.

14.4

Content. All content (with the exception of User Content) remains the Intellectual Property of the Company, including (without limitation) any source code, ideas, enhancements, feature requests, suggestions or other information provided by the User or any other party with respect to CloudeNotes.

15

CONFIDENTIALITY

15.1

The information and classes of information set out in the Particulars are Confidential Information for the purposes of this Agreement. In default, information relating to the business operations, personal information and other information that should be confidential is Confidential Information.

15.2

Each party acknowledges and agrees that:

(a)

The Confidential Information is secret, confidential and valuable to the disclosing party (Discloser);

(b)

It owes an obligation of confidence to the Discloser concerning the Confidential Information;

(c)

It must not disclose the Confidential Information to a third party except as permitted in this Agreement;

(d)

All Intellectual Property rights remain vested in the Discloser but disclosure of Confidential Information does not in any way transfer or assign any rights or interests in the Intellectual Property to the receiving party; and

(e)

Any breach or threatened breach by the receiving party of an obligation under this Agreement may cause the Discloser immediate and irreparable harm for which damages alone may not be an adequate remedy. Consequently the Discloser has the right, in addition to other remedies available at law or in equity, to seek injunctive relief against the receiving party (and its agents, assigns, employees, officers and directors, personally) or to compel specific performance of this clause.

15.3

A party must notify the Discloser in writing, giving full details known to it immediately, when it becomes aware of:

(a)

Any actual, suspected, likely or threatened breach by it of clause 15.1;

(b)

Any actual, suspected, likely or threatened breach by any person of any obligation in relation to the Confidential Information; or

(c)

Any actual, suspected, likely or threatened theft, loss, damage, or unauthorized access, use or disclosure of or to any Confidential Information.

15.4

The receiving party must promptly take all steps that the Discloser may reasonably require and must co-operate with any investigation, litigation or other action of the Discloser or of a related body corporate if there is:

(a)

Any actual, suspected, likely or threatened breach of a term of this Agreement; or

(b)

Any theft, loss, damage or unauthorized access, use or disclosure of or to any Confidential Information that is or was in its possession or control.

16

LIABILITY & INDEMNITY

16.1

The User agrees that it uses CloudeNotes at its own risk.

16.2

The User acknowledges that the Company is not responsible for the conduct or activities of any user and that the Company is not liable for such under any circumstances.

16.3

The User agrees to indemnify the Company for any loss, damage, cost or expense that the Company may suffer or incur as a result of or in connection with the User’s use of or conduct in connection with CloudeNotes, including any breach by the User of these Terms.

16.4

In no circumstances will the Company be liable for any direct, incidental, consequential or indirect damages, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the User’s access to, or use of, or inability to use CloudeNotes or any content, or in any way relating to an experience itself (or the provision or non-provision of an experience), whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not the Company knew or should have known of the possibility of such damage, to business interruption of any type, whether in tort, contract or otherwise.

16.5

Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted or modified. Apart from those that cannot be excluded, the Company and the Companies related entities exclude all conditions and warranties that may be implied by law. To the extent permitted by law, the Companies liability for breach of any implied warranty or condition that cannot be excluded is restricted, at the Companies option to:

(a)

The re-supply of services or payment of the cost of re-supply of services; or

(b)

The replacement or repair of goods or payment of the cost of replacement or repair.

17

BREACH

17.1

Where a party is in breach of this Agreement, the other party may issue a written notice (Breach Notice) requiring the party in breach that must set out:

(a)

The nature of the breach;

(b)

The provisions of the Agreement that are alleged to have been breached;

(c)

A reasonable time frame to remedy the breach in no less than 10 Business Days; and

(d)

The action required to remedy the breach.

17.2

Where a party issues a compliant Breach Notice in accordance with clause 17.1, the receiving party shall be required to respond and/or remedy the breach as so set out in the Breach Notice. Failure to respond in writing setting out:

(a)

The steps taken to remedy the breach; or

(b)

Why the party believes it is not in breach as put forward in the Breach Notice,

(c)

Shall not in itself confirm the alleged breach but shall be in itself a breach of this Agreement.

17.3

Failure to remedy a breach set out in a Breach Notice shall be a material breach of this Agreement (Material Breach).

18

TERMINATION

18.1

Breach. Where a party is in Material Breach of this Agreement, the other party may terminate this Agreement by giving written notice of termination, which shall become effective 5 Business Days after the date of the notice.

18.2

Insolvency. Either party may terminate this Agreement immediately by notice, if either party:

(a)

Stops or suspends or threatens to stop or suspend payment of all or a class of its debts;

(b)

Is insolvent within the meaning of section 95A of the Corporations Act;

(c)

Shall not in itself confirm the alleged breach but shall be in itself a breach of this Agreement.

(d)

The debt to which the statutory demand relates is discharged within 15 Business Days of the date of the failure; or

(e)

The party demonstrates to the satisfaction of the other party (acting reasonably) that it is able to pay all its debts as and when they become due and payable;

(f)

Has an administrator appointed in respect of it;

(g)

Has a controller within the meaning of section 9 of the Corporations Act or similar officer appointed to the whole or a substantial part of its assets or undertaking and that controller or similar officer is not removed within 15 Business Days of the appointment;

(h)

Has an order made or a resolution passed for its winding up or dissolution or it enters into an arrangement, compromise or composition with or assignment for the benefit of its creditors or a class of them;

(i)

Has any security enforced over, or a distress, execution or other similar process levied or served against, the whole or a substantial part of its assets or undertaking; or

(j)

Is subject to any event, which, under the law of any relevant jurisdiction, has an analogous or equivalent effect to any of the events listed above.

18.3

Expiry or termination of this Agreement is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of this Agreement up to the date of expiry or termination.

18.4

The rights and obligations under the relevant provisions of clauses 7, 8, 9, 10, 11, 14, 15, 16, 17, 18, 19, 20, 21 and 21.6 survive termination of this Agreement.

19

DISPUTES

19.1

All disputes shall be handled in accordance with the Companies dispute resolution policy.

19.2

Where the Company does not have a relevant dispute resolution policy for a type of dispute, the following process shall apply:

(a)

Negotiation. If there is a dispute between the parties relating to or arising out of this Agreement, then within 5 Business Days of a party notifying the other party of a dispute, senior representatives from each party must meet (or discuss directly via the telephone or internet) and use all reasonable endeavours acting in good faith to resolve the dispute by joint discussions;

(b)

Mediation. If the dispute between the parties relating to or arising out of this Agreement is not resolved within five Business Days of notification of the dispute under Clause 19.1, the parties must agree to submit the dispute to mediation, administered by lawyers engaged in alternative dispute resolution;

(c)

Arbitration. If the dispute between the parties relating to or arising out of this Agreement is not settled by mediation under Clause (b), either party may by written notice to the other refer the dispute to arbitration administered by the Institute of Arbitrators Australia. The arbitrator will be agreed between the parties from a panel suggested by the President of the Institute of Arbitrators Australia or failing Agreement, an arbitrator will be appointed by the President of the Institute of Arbitrators Australia; and

(d)

Court proceedings. A party may not commence court proceedings in relation to a dispute relating to or arising out of this Agreement until it has exhausted the procedures in this clause (d) unless the party seeks appropriate injunctive or other interlocutory relief to preserve property or rights or to avoid losses that are not compensable in damages.

20

FORCE MAJEURE

20.1

If a party is prevented in whole or in part from carrying out its obligations under this Agreement as a result of Force Majeure, it will promptly notify the other party accordingly. The notice must:

(a)

Specify the obligations and the extent to which it cannot perform those obligations;

(b)

Fully describe the event of Force Majeure;

(c)

Estimate the time during which the Force Majeure will continue; and

(d)

Specify the measures proposed to be adopted to remedy or abate the Force Majeure.

20.2

Following a notice of Force Majeure in accordance with clause 20.1 and while the Force Majeure continues, the obligations which cannot be performed because of the Force Majeure will be suspended, other than obligations to pay money that is due and payable.

20.3

The party that is prevented from carrying out its obligations under this Agreement as a result of Force Majeure must remedy the Force Majeure to the extent reasonably practicable and resume performance of its obligations as soon as reasonably possible.

20.4

The party that is prevented from carrying out its obligations under this Agreement as a result of Force Majeure must take all action reasonably practicable to mitigate any loss suffered by the other party as a result of the party’s failure to carry out its obligations under this Agreement.

20.5

The term of this Agreement will not be extended by the period of Force Majeure.

21

ELECTRONIC COMMUNICATION, AMENDMENT AND ASSIGNMENT

21.1

The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.

21.2

The User can direct notices, enquiries, complaints and so forth to the Company as set out in this Agreement. The Company will notify the User of a change of details from time-to-time.

21.3

The Company will send the User notices and other correspondence to the details that the User submits to the Company, or that the User notifies the Company of from time-to-time. It is the User’s responsibility to update its contact details as they change.

21.4

A consent, notice or communication under this Agreement is effective if it is sent as an electronic communication unless required to be physically delivered under law.

21.5

Notices must be sent to the parties’ most recent known contact details.

21.6

The User may not assign or otherwise create an interest in this Agreement.

21.7

The Company may assign or otherwise create an interest in its rights under this Agreement by giving written notice to the User.

22

GENERAL

22.1

Special Conditions. The parties may agree to any Special Conditions to this Agreement in writing.

22.2

Prevalence. To the extent that the Particulars are inconsistent with the General Conditions, the terms of the Particulars will prevail.

22.3

Disclaimer. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Agreement.

22.4

Relationship. The relationship of the parties to this Agreement does not form a joint venture or partnership.

22.5

Waiver. No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.

22.6

Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to this Agreement and the transaction facilitated by it.

22.7

Governing Law. This Agreement is governed by the laws of the state set out in item N of the Particulars. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.

22.8

Severability. Any clause of this Agreement, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Agreement.

END GENERAL CONDITIONS