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Pathzero Subscription Terms and Conditions

Pathzero Subscription Agreement Terms and Conditions: for Sponsored Accounts (last updated 28 April 2023)

Pathzero Sponsored Account Terms and Conditions

This document sets out the terms and conditions applicable to your use of the Pathzero Pty Ltd (Pathzero, we, us or our) hosted software application and related products and components.

1. Defined terms & interpretation

1.1 Defined terms

In this document:

Access Credentials is defined in clause 1.

Add On means any development or module that adds new and independent functionality to the Core Product, as specified in the Documentation from time to time and provided to you under this Agreement, as Modified by us from time to time.

Agreement is defined in clause 4.

Australian Consumer Law means the Australian Consumer Law set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth) as amended or replaced from time to time.

Business Day means:

1. for receiving a notice under clause 12, a day that is not a Saturday, Sunday, public holiday or bank holiday in the place where the notice is received; and
2. for all other purposes, a day that is not a Saturday, Sunday, public holiday or bank holiday in Sydney, Australia.

Commencement Date means the date on which you accept the terms of this Agreement.

Conditions means clauses 1 to 12 (inclusive) of this document, and includes alterations (including additions) from time to time.

Confidential Information of a Disclosing Party means:

1. the following information, regardless of its form and whether the Receiving Party becomes aware of it before or after the date of this Agreement:
  1. information that is by its nature confidential;
  2. information that is designated by the Disclosing Party as confidential; and
  3. information the Receiving Party knows, or ought to know, is confidential;
2. all notes and other records prepared by the Receiving Party based on or incorporating information referred to in paragraph (a); and
3. all copies of the information, notes and other records referred to in paragraphs (a) and (b),
  
  and:
4. in the case of Pathzero, includes the Product (including any Contributor Data, OC Data or other data stored in the Product that is not Customer Data); and
5. in the case of the Customer, includes the Customer Data,
  
  but in all cases excludes information that:
6. the Receiving Party creates (whether alone or jointly with any third person) independently of the Disclosing Party; or
7. is public knowledge (otherwise than as a result of a breach of confidentiality by the Receiving Party or any of its permitted discloses).

Contributor Data means all data, information (including Personal Information) and other materials which a third party uploads or enters into the Product, together with all data (including emissions data), works, documents or other materials that are created through that third party's use of the Product.

Core Product means the Pathzero hosted software application provided to you under this Agreement as more particularly described in the Documentation, as Modified by (or on behalf of) us from time to time, but excluding any Add Ons.

Customer, you or your means the person who uses the Core Product.

Customer Data means:

1. data, information (including Personal Information) and other materials that you upload or enter into the Product; and
2. all data (including emissions data), works, documents or other materials that are created through your use of the Product,

but in all cases excludes the Product, the Digital Assets, the Contributor Data and the OC Data.

Digital Assets means the Pathzero digital logos and other digital assets that Pathzero may, in its discretion, make available to you from time to time for use in accordance with this Agreement.

Disclosing Party means a party to this Agreement who discloses or makes available Confidential Information to the Receiving Party.

Documentation means any documentation provided or made available by us to you under this Agreement which sets out a description of the Product and instructions for its use, and includes Modifications to that documentation from time to time.

Force Majeure Event is defined in clause 11.

Harmful Code means any computer code or routine that is harmful, destructive, disabling or that assists in or enables theft, alteration, denial of service, unauthorised disclosure or destruction or corruption of data, including viruses, worms, spyware, adware, ransomware, keyloggers, trojans and any new types of programmed threats that may be classified, but excluding passwords, software keys, trial period software and like features that are security features or intended elements of software used to prevent unauthorised access and use.

Insolvency Event means any of the following events:

1. a party disposes of the whole or any part of its assets, operations or business other than in the ordinary course of business;
2. a party ceases to carry on business;
3. a party ceases to be able to pay its debts as they become due;
4. any step is taken by a mortgagee to take possession or dispose of the whole or any part of a party's assets, operations or business;
5. any step is taken to enter into any arrangement between a party and its creditors; or
6. any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a liquidator, a provisional liquidator, an administrator or other like person of the whole or any part of a party's assets or business.

Intellectual Property Rights means all intellectual property rights, including the following rights:

1. patents, copyright, rights in circuit layouts, designs, trade and service marks (including goodwill in those marks), domain names and trade names and any right to have confidential information kept confidential;
2. any application or right to apply for registration of any of the rights referred to in paragraph (a); and
3. all rights of a similar nature to any of the rights in paragraphs (a) and (b) that may subsist anywhere in the world (including Australia),

whether or not such rights are registered or capable of being registered.

IPR Claim means a third party claim that your use of the Product or possession or use of the Documentation in accordance with the provisions of this Agreement infringes a third party's Intellectual Property Rights.

Modification, in relation to any material, means any modification, translation, update, enhancement or new version of that material (and, in the case of software, also includes patches, fixes, service packs or upgrades), and Modify and Modified have corresponding meanings.

OC Data means any data, information or other materials of an Other Customer uploaded or entered into, or created through, that Other Customer’s use of its own subscription to the Product.

Other Customer means any customer of Pathzero (other than you) who is authorised to use the Product (either on terms that are substantially equivalent to these Conditions or otherwise on an ongoing paid-subscription basis).

Personal Information has the same meaning as in the Privacy Act 1988 (Cth).

Product means the Core Product and each Add On.

Receiving Party means a party to this Agreement who obtains Confidential Information of the other party to this Agreement.

Sponsor means the party sponsoring your use of the Product pursuant to a paid subscription arrangement between that party and Pathzero.

Sponsored Subscription Period means a period of six months (or such longer period as notified by Pathzero in writing from time to time).

Taxes means all forms of taxes, duties, imposts, charges, withholdings, rates, levies or other governmental impositions of whatever nature and by whatever authority imposed, assessed or charged, together with all costs, charges, interest, penalties, fines, expenses and other additional statutory charges, incidental or related to their imposition.

Term is defined in clause 2.

Trade Marks means any trade marks owned by Pathzero, whether or not capable of registration, and whether registered or unregistered, including Australian trade mark number 2190577.

Website means Pathzero's website available at https://www.pathzero.com/.

1.2 Interpretation

In this Agreement, unless otherwise stated, or where the context otherwise requires:

1. the singular includes the plural and vice versa, and a gender includes other genders;
2. another grammatical form of a defined word or expression has a corresponding meaning;
3. a reference to a clause, paragraph, schedule or annexure is to a clause or paragraph of, or schedule or annexure to, this Agreement, and a reference to this Agreement includes any schedule or annexure;
4. a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
5. a reference to time is to the time in Sydney, Australia;
6. a reference to a party is to a party to this Agreement, and a reference to a party to a document includes the party's executors, administrators, successors and permitted assigns and substitutes;
7. a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;
8. a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
9. the meaning of general words is not limited by specific examples introduced by including, for example, such asor similar expressions;
10. any agreement, representation, warranty or indemnity in favour of two or more persons (including where two or more persons are included in the same defined term) is for the benefit of them jointly and severally;
11. a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this Agreement or any part of it; and
12. if a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day.

1.3 Headings

Headings are for ease of reference only and do not affect interpretation.

1.4 Agreement and order of precedence

1. This agreement consists of:
  1. these Conditions; and
  2. the Documentation (if any),
    (Agreement).
2. If there is an inconsistency between these Conditions and any Documentation, these Conditions will prevail to the extent of any inconsistency.

2. Use of Product

2.1 Grant of licence

Subject to the terms of this Agreement, we grant you a non-exclusive, non-transferable, fee-free, revocable licence to access and use the Product for the limited purpose prescribed by your Sponsor.

2.2 Term

This Agreement, and the licence granted to you under clause 2.1:

1. commences on the Commencement Date; and
2. continues for the Sponsored Subscription Period,

unless this Agreement is terminated earlier in accordance with clause 10 (Term).

3. Use of Digital Assets

3.1 Ownership of Digital Assets

You acknowledge and agree that Pathzero (or its third party licensors) are the sole owners of all rights, title and interest (including all Intellectual Property Rights) in and to the Digital Assets.

3.2 Use of Digital Assets

1. To the extent we provide you with any Digital Assets, we grant you a non-exclusive, non-transferable, royalty-free, revocable licence to access and use the Digital Assets, as is, for the Term, by displaying such digital assets in digital methods of communication used by you (including email signatures and on your website), and in such other digital locations as may be agreed in writing by us from time to time.
2. We may, at any time by notice to you in writing, and without giving reason, revoke your licence to use any of our Digital Assets, and you must immediately cease using the Digital Assets.

3.3 Trade Mark ownership and quality control

1. You acknowledge and agree that Pathzero is the sole owner of all rights, title and interest (including all Intellectual Property Rights) in and to the Trade Marks.
2. To the extent the Digital Assets include any Trade Marks, Pathzero grants you a non-exclusive, non-transferable, royalty-free, revocable licence to use the Trade Marks for the sole purpose of exercising your rights in the Digital Assets, as set out in clause 3.2.
3. You must:
  1. not use the Trade Marks:
    (A) in any way that is likely to harm or prejudice Pathzero's rights in the Trade Marks; or
    (B) for any unlawful purpose;
  2. comply with any directions given to you by Pathzero in relation to the Trade Marks;
  3. not use the Trade Marks in any way that may damage the goodwill or reputation of Pathzero's brand;
  4. not intentionally or recklessly do or cause anything that may challenge, damage or endanger Pathzero's title to the Trade Marks or assist or allow any other person to do so;
  5. not register or attempt to register any part of the names or words forming part of the Trade Marks or any word that are substantially identical with or deceptively similar to them as or as part of a business name, domain name or corporate name;
  6. not register or attempt to register any part of the Trade Marks or any name, word, mark, design, emblem, visual representation or slogan substantially identical with or deceptively similar to it as or as part of a trade mark or design;
  7. not represent that you have any right, title or interest in the Trade Marks or in any application for registration of them or in any fraudulent or obvious imitation of them other than pursuant to the rights expressly granted under this Agreement;
  8. not use any name, word, mark, design, emblem, visual representation or slogan similar to or capable of being confused with the Trade Marks;
  9. not use the Trade Marks in a partial or fragmentary form but always in their complete form, unless otherwise agreed by Pathzero in writing; and
  10. not use the Trade Marks in conjunction with any other name, word, mark, design, emblem, visual representation, slogan or other means of identification, unless otherwise agreed by Pathzero in writing.

4. Usage conditions

4.1 Access Credentials

In order to access the Product, we will issue you with an unique user name and password through which you may access the Product (Access Credentials). You acknowledge that we can require you to:

1. replace passwords used to access the Product; and/or
2. adopt specific protocols for devising new or replacement passwords,

and you must comply with any such requirements.

4.2 Security

1. You must keep your Access Credentials secret and not disclose or share those Access Credentials with any person.
2. You must ensure that, to the extent practicable, the Product is protected at all times from unauthorised access or use and from misuse, damage or destruction by any person.
3. You must notify us if:
  1. the security of your Access Credentials is, or becomes, compromised; or
  2. you suspect that there has been unauthorised access to and/or use of the Product through your Access Credentials.
4. You are responsible, and liable, for any access to and/or use of the Product, Customer Data, Contributor Data and other materials stored on the Product, that is effected through your Access Credentials irrespective of whether that access and/or use is effected by you.

4.3 Conditions

You must:

1. comply with all reasonable directions issued by us regarding use of the Product; and
2. ensure that you use the Product only in accordance with this Agreement.

4.4 Access and usage restrictions

You must not:

1. allow any other person to access or use the Product via your Access Credentials, for any purpose, without our prior written consent;
2. modify, add to, adapt, delete or amend any part of the Product without our prior written consent;
3. sell, translate, network, publish, commercialise, rent, lease, assign, transfer, loan, or otherwise distribute all or part of the Product, or any adaptation, modification or derivative of all or part of the Product, except as expressly permitted by this Agreement;
4. reverse engineer, disassemble, or decompile any software forming part of the Product, unless permitted to do so by law, and then only strictly in accordance with the provisions or terms under which that right is given by that law;
5. use the Product:
  1. for any unlawful purpose; or
  2. in a manner than contravenes any applicable laws;
6. remove, obscure or interfere with any copyright, acknowledgment, attribution, trade mark, warning, disclaimer statement, rights management information or serial numbers affixed to, incorporated in or otherwise applied in connection with the Product;
7. transmit or introduce any Harmful Code into or via the Product; or
8. directly or indirectly, introduce or permit the introduction of any virus, worm, trojan or other malicious code into the Product, or in any other manner whatsoever corrupt, degrade or disrupt the operation of the Product.

4.5 Availability and reliance

You acknowledge and agree that:

1. to the extent permitted by law, we make no representations, warranties or guarantees in relation to the availability, continuity, reliability, accuracy, currency or security of the Product (or any services provided in connection with the Product). We will not be liable if the Product (or any services provided in connection with the Product) is unavailable for any reason, including directly or indirectly as a result of:
  1. telecommunications unavailability, interruption, delay, bottleneck, failure or fault;
  2. negligent, malicious or wilful acts or omissions of third parties (including our third party service providers);
  3. maintenance or repairs carried out by us or any third party service provider in respect of any of the systems used in connection with the provision of the Product;
  4. services provided by third parties ceasing or becoming unavailable; or
  5. Force Majeure Events;
2. to the extent permitted by law, we:
  1. do not guarantee the accuracy of any Contributor Data obtained using the Product;
  2. are not responsible for any action taken by you in reliance on the Contributor Data; and
3. any act or omission that is based on the Contributor Data is at your own risk.

4.6 Monitoring of usage

We may monitor your use of the Product and the Digital Assets for our business purposes, including:

1. for security and availability reasons;
2. to ensure compliance with this Agreement; and
3. to detect, prevent or stop any use of the Product or the Digital Assets in breach of this Agreement.

5. Intellectual Property Rights

5.1 Customer Data and OC Data

1. Subject to clause 5.3, all rights, title and interest (including all Intellectual Property Rights) in the Customer Data vest in you on their creation.
2. You grant us:
  1. a non-exclusive licence (including a right to sublicense) to use, reproduce and communicate the Customer Data during the term of this Agreement to enable us to perform our obligations under this Agreement; and
  2. a non-exclusive, perpetual licence (including a right to sublicense) to aggregate and anonymise the Customer Data and use, publish and sublicense the aggregated and anonymised data for our business purposes, including for analytics, benchmarking and marketing.
3. One or more Other Customers may request access to view your Customer Data through the Product. If an Other Customer requests access to your Customer Data, you will be notified through the Product of the Customer Data to which the Other Customer has requested access. You grant us a licence to disclose the Customer Data to Other Customers through the Product to the extent you provide your consent to that disclosure via the Product. You may withdraw your consent to sharing of Customer Data with Other Customers at any time through the Product settings.
4. You may also request access to view OC Data through the Product. If, following that request, one or more Other Customers grant you access to their OC Data:
  1. you acknowledge that all rights, title and interest (including all Intellectual Property Rights) in that OC Data remain vested in the relevant Other Customer(s); and
  2. we grant you a non-exclusive licence during the term of this Agreement:

(A) to use that OC Data solely for your internal business purposes; and

(B) to disclose that OC Data to third parties solely to enable you to discharge your reporting obligations to regulators and other relevant stakeholders,

and subject to any additional limitations notified to you via the Product in respect of that OC Data.

5.2 Contributor Data

1. To the extent that third parties provide their consent to us sharing their Contributor Data with you, we grant you a non-exclusive licence to use that Contributor Data during the term of this Agreement for your internal business purposes.
2. If a third party revokes its consent to us sharing its Contributor Data with you, the licence granted in paragraph (a) will automatically terminate in respect of that Contributor Data.

5.3 Product, Digital Assets and Documentation

1. Except for the licences to use the Product, the Digital Assets and the Documentation granted under this Agreement, all rights, title and interest (including all Intellectual Property Rights) in the Product, the Digital Assets and the Documentation vest in us (and/or our third party licensors).
2. To the extent that any Customer Data incorporate any element of the Product, you do not acquire any interest or rights in the Product. Despite the previous sentence, we grant to you a non-exclusive, perpetual licence to use, reproduce and communicate any element of the Product incorporated into Customer Data, but only as part of those Customer Data and only for your internal business purposes.

6 Marketing

1. We will seek your approval in writing prior to referring to you in any marketing material or publicly refer to you as our customer or include you in customer lists and use your name, trade name, trade marks and logo for this purpose.

7. Confidentiality and privacy

7.1 Use and disclosure

A Receiving Party:

1. may use Confidential Information of the Disclosing Party only for the purposes of this Agreement; and
2. must keep confidential all Confidential Information of the Disclosing Party except:
  1. (in your case) to the extent required to enjoy the benefit of the licence granted under clause 1;
  2. (in our case) for disclosures permitted under clause 1(c);
  3. for disclosures permitted under this clause 7; and
  4. to the extent (if any) the Receiving Party is required to disclose any Confidential Information by law.

7.2 Use and disclosure of Confidential Information

A Receiving Party may disclose Confidential Information of the Disclosing Party to persons who:

1. have a need to know for the purposes of this Agreement (and only to the extent that each has a need to know); and
2. before disclosure:
  1. in the case of the Receiving Party's officers and employees, have been directed by the Receiving Party to keep confidential all Confidential Information of the Disclosing Party; and
  2. in the case of other persons, have agreed in writing with the Receiving Party to comply with substantially the same obligations in respect of Confidential Information of the Disclosing Party as those imposed on the Receiving Party under this Agreement,

(each a Direction).

7.3 Receiving Party's obligations

A Receiving Party must:

1. ensure that each person to whom it discloses Confidential Information of the Disclosing Party under clause 2(b)(ii) complies with its Direction; and
2. notify the Disclosing Party of, and take all steps to prevent or stop, any suspected or actual breach of a Direction.

7.4 Disclosure required by law

If a Receiving Party is required by law to disclose any Confidential Information of a Disclosing Party to a third person (including government) the Receiving Party must:

1. before doing so:
  1. notify the Disclosing Party; and
  2. give the Disclosing Party a reasonable opportunity to take any steps that the Disclosing Party considers necessary to protect the confidentiality of that information; and
2. notify the third person that the information is confidential to the Disclosing Party.

7.5 Compliance with privacy laws

1. Disclosure by you of personal information to us in connection with the Product or this Agreement may be subject to the Privacy Act 1988 (Cth) (Privacy Act). Accordingly, the Product is provided on the basis that you will only disclose Personal Information to us where:
  1. the disclosure is for a purpose related to the Product or this Agreement;
  2. you have obtained all consents required to be obtained under the Privacy Act; and
  3. to do so would not otherwise breach the Privacy Act.
2. If the provision of the Product requires a third party to provide Personal Information to us at your request, it is your obligation to ensure that the third party complies with paragraphs (a)(i) to (a)(iii) above, and you indemnify us against any claim, loss or expense resulting from your failure to do so or to otherwise comply with the Privacy Act.
3. Without limiting paragraphs (a) and (b), each party agrees that, to the extent that they come into possession of any Personal Information in the course of exercising their rights or performing their obligations under this Agreement, that they will comply with the provisions of the Privacy Act in respect of that Personal Information.

8 Exclusion and limitation of liability

8.1 No exclusion or limitation

1. To the extent that you acquire goods or services from us as a consumer within the meaning of the Australian Consumer Law, you may have certain rights and remedies (including, without limitation, consumer guarantee rights) that cannot be excluded, restricted or modified by agreement.
2. Nothing in this clause 8 operates to exclude, restrict or modify the application of any condition, warranty or provision implied by law, the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law or any other statute where to do so would:
  1. contravene that statute; or
  2. cause any term of this Agreement to be void,

(Non-excludable Obligation).

8.2 Exclusion of implied obligations and limitation of liability

Except in relation to Non-excludable Obligations, and to the extent permitted by law:

1. all conditions, warranties, guarantees, rights, remedies, liabilities or other terms that may be implied or imposed by custom, under the general law or by statute are expressly excluded under this Agreement;
2. we exclude all liability to you (including in negligence) for loss of revenue, loss of goodwill, loss of customers, loss of capital, downtime costs, loss of profit, loss of or damage to reputation, loss under or in relation to any other contract, loss of data or loss of use of data, loss of anticipated savings or benefits, or any indirect, consequential or special loss, damage, cost or expense or other claims for consequential compensation, incurred by or awarded against you in relation to the Product or under or in any way connected with this Agreement;
3. except as provided under clause 9, our total aggregate liability to you (including in negligence) in relation to the Product or under or in any way connected with this Agreement is otherwise limited to $10,000.

9. Indemnities

9.1 Intellectual Property Rights infringement

1. Provided that you comply with paragraph (b), we indemnify you against any final judgement or settlement amounts incurred by or awarded against you as a result of an IPR Claim.
2. If a third party makes an IPR Claim, you must:
  1. notify us in writing as soon as practicable of the IPR Claim having been made or brought against you;
  2. give us the option to conduct the defence and settlement of the IPR Claim and not make any admissions or otherwise attempt to settle or compromise the IPR Claim except on our express instructions;
  3. provide us with reasonable assistance (at our expense) in conducting the defence or settlement of the IPR Claim; and
  4. permit us to (at its expense):
    
    (A) modify or substitute the infringing part of the Product (so that it becomes non-infringing without suffering a material adverse effect on performance or functionality); or
    
    (B) obtain for you the right to continue to use the Product.
3. To the extent permitted by law, the remedies specified in paragraphs (a) and (b) are your sole remedy in respect of an IPR Claim.
4. If we are unable (despite applying its commercially reasonable endeavours) to remedy the IPR Claim as contemplated in paragraph (b)(iv), we may terminate this Agreement (wholly or in part, including any and all licences).

9.2 Your indemnity

Notwithstanding clause 9.1, you indemnify us against all expenses, losses, damages and costs (on a solicitor and own client basis and whether incurred by or awarded against us) that we sustain or incur as a result, whether directly or indirectly, of any claim against us by any third party arising from your use of the Product (including access to and use of any OC Data).

10. Suspension and termination

10.1 Suspension

1. We can suspend your access to, or use of, the Product (or any part of it) if we consider that:
  1. you are accessing or using the Product:
    
    (A) to commit an illegal act; or
    
    (B) in a manner that breaches this Agreement; or
  2. there is a material threat to the functionality, security, integrity or availability of the Product (or any applications, content or data contained within the Product).
2. We will:
  1. to the extent reasonably practicable and lawfully permitted, provide you with reasonable prior notice of any such suspension; and
  2. use reasonable efforts to re-establish the Product promptly after determining that the issue causing the suspension has been resolved.

10.2 Termination without cause

Either party may terminate this Agreement without cause by giving the other party not less than five Business Days' notice.

10.3 Termination for cause

Either party (Terminating Party) may terminate this Agreement immediately by telling the other party (Breaching Party) in writing if the Breaching Party:

1. breaches any term of this Agreement that is not capable of remedy;
2. breaches any term of this Agreement that is capable of remedy and fails to rectify that breach within five Business Days of receiving a notice from the Terminating Party requiring the Breaching Party to do so; or
3. suffers an Insolvency Event (subject to any applicable statutory stay on the exercise of rights, including under sections 415D, 434S or 451E of the Corporations Act 2001 (Cth)).

10.4 Rights and obligations on expiry or termination

On the date of expiry or effective termination of this Agreement:

1. the licence granted under clause 2.1 terminates;
2. the licence granted under clause 3.2(a) terminates;
3. the licence granted under clause 5.1(d) terminates;
4. you must immediately cease using the Product;
5. you must immediately cease using the Digital Assets; and
6. you must within ten (10) days of such termination send to us, or otherwise dispose of in accordance with our directions, all of our Confidential Information relating to the Product (including the Documentation) and the Digital Assets then in your possession or control.

11 Force majeure

The non-performance or delay in performance by a party of any obligation in this Agreement is excused during the time and to the extent that performance is prevented by a circumstance or event beyond its reasonable control (Force Majeure Event), provided that the party affected by the Force Majeure Event takes reasonable steps to mitigate the impact of the Force Majeure Event on the performance of its obligations. This clause 11 does not apply to any obligation to pay money.

12 Dispute resolution

12.1 No court proceedings unless procedure followed

A party must not commence proceedings (except proceedings seeking interlocutory relief) unless it has complied with this clause 12.

12.2 Notice of Dispute

A party claiming that a dispute, difference or question arising out of this Agreement, including a question as to whether certain services are in scope or not, has arisen (Dispute) must give the other party notice of the details of the Dispute (Dispute Notice).

12.3 Negotiated resolution

1. When a Dispute Notice is given, each party's representatives must meet and attempt to resolve the Dispute.
2. If the parties' representatives cannot resolve the Dispute, then the parties' immediate managers must meet and attempt to resolve the Dispute.
3. If the immediate manager's meet and cannot resolve the Dispute, then the parties' chief executive officers (or their nominee) must meet and attempt to resolve the Dispute.

12.4 Mediation

If the chief executive officers (or their nominees) cannot resolve the Dispute under clause 12.3 within sixty (60) days (or longer period as agreed between the parties), then the parties must refer the Dispute for mediation by the Australian Commercial Dispute Centre Limited for resolution in accordance with the Conciliation Rules of the Australian Commercial Dispute Centre.

12.5 Court proceedings if procedure fails

If the parties cannot resolve a Dispute in accordance with the escalation procedure in clauses 12.3 and 12.4, then any party may commence court proceedings.

12.6 Release if other party breaches

If a party breaches this clause 12 in relation to a Dispute, then the other party need not comply with this clause 12 in relation to that Dispute.

12.7 Obligations continue

The parties must continue to perform their respective obligations under this Agreement pending the resolution of a Dispute.

12.8 Costs

Each party must pay its own costs of complying with this clause 12.

13 Miscellaneous

13.1 Alterations

1. Pathzero may alter these Conditions from time to time. If we reasonably consider that the alteration is likely to:
  1. benefit you or have a neutral or minor detrimental impact on you, then we may alter these Conditions by making such alterations immediately without notifying you except by publishing these Conditions as amended on our Website; or
  2. have a significant detrimental impact on you, then we will make such alterations to these Conditions no sooner than five Business Days after we have notified you of those alterations on the home page of our Website.
    
    If you do not accept an alteration made by us to these Conditions, you must immediately cease using the Product and may terminate this Agreement by notice in writing to us.
2. Documentation may be altered by Pathzero at any time by Pathzero providing a copy of the altered documentation to you.

13.2 Assignment and novation

You must not assign this Agreement (or any right under it) or purport to novate any of your obligations under this Agreement to another person without our prior written consent.

13.3 Costs

Each party must pay its own costs of negotiating, preparing and executing this Agreement.

13.4 Stamp duty

Any stamp duty, duties or other Taxes of a similar nature (including fines, penalties and interest) in connection with this Agreement or any transaction contemplated by this Agreement must be paid by you.

13.5 Execution

Where a person purports to enter into this Agreement for you or on your behalf, that person warrants and represents on your behalf that he or she has actual authority to bind you to this Agreement.

13.6 Further action

Each party must do, at its own expense, everything reasonably necessary (including executing documents) to give full effect to this Agreement and any transaction contemplated by it.

13.7 Severability

A term or part of a term of this Agreement that is illegal or unenforceable may be severed from this Agreement and the remaining terms or parts of the terms of this Agreement continue in force.

13.8 Waiver

A party does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy. A single or partial exercise of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy. A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.

13.9 Relationship

Except where this Agreement expressly states otherwise, it does not create a relationship of employment, trust, agency or partnership between the parties.

13.10 Governing law and jurisdiction

This Agreement is governed by the laws of New South Wales, Australia and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of New South Wales, Australia.

13.11 Entire agreement

This Agreement constitutes the entire agreement between the parties in connection with its subject matter and supersedes all previous agreements or understandings between the parties in connection with its subject matter.

13.12 Survival

Any term by its nature intended to survive termination of this Agreement survives termination of this Agreement, including clauses 7.5, 8 and 9.