Effective from 14 July 2022
Pathzero Subscription Agreement Terms and Conditions
This document sets out the terms and conditions applicable to the 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 4.1.
Access Date means, for the Product or each Add On, the relevant date specified in the Quote.
Add On means any development or module that adds new and independent functionality to the Core Product, as specified in a Quote and/or Documentation from time to time and provided to you under this Agreement, as Modified by us from time to time.
Administrative User means your Personnel who are authorised by you to access and use the Product for the purpose of administering, managing and monitoring the use of the Product by Authorised Users.
Agreement is defined in clause 1.4.
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.
Authorised User means any of your Personnel who are authorised by you to access and use the Product.
Business Day means:
(a) for receiving a notice under clause 15, a day that is not a Saturday, Sunday, public holiday or bank holiday in the place where the notice is received; and
(b) 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 the last of Pathzero and the Customer signs the Quote for the Core Product.
Conditions means clauses 1 to 16 (inclusive) of this document, and includes alterations (including additions) from time to time.
Confidential Information of a Disclosing Party means:
(a) the following information, regardless of its form and whether the Receiving Party becomes aware of it before or after the date of this Agreement:
(i) information that is by its nature confidential;
(ii) information that is designated by the Disclosing Party as confidential; and
(iii) information the Receiving Party knows, or ought to know, is confidential;
(b) all notes and other records prepared by the Receiving Party based on or incorporating information referred to in paragraph (a); and
(c) all copies of the information, notes and other records referred to in paragraphs (a) and (b), and:
(d) 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
(e) in the case of the Customer, includes the Customer Data,
but in all cases excludes information that:
(f) the Receiving Party creates (whether alone or jointly with any third person) independently of the Disclosing Party; or
(g) 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 Quote and/or Documentation, as Modified by (or on behalf of) us from time to time, but excluding any Add Ons.
Customer, you or your means the customer identified in the Quote for the Core Product.
Customer Data means:
(a) data, information (including Personal Information) and other materials which you or your Authorised Users upload or enter into the Product; and
(b) all data (including emissions data), works, documents or other materials that are created through the use of the Product by you or any of your Authorised Users,
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.
Fees means the fees specified in the Quote and any other amounts payable to us under this Agreement.
Force Majeure Event is defined in clause 14.
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.
Initial Subscription Period means the subscription period specified in the Quote.
Insolvency Event means any of the following events:
(a) a party disposes of the whole or any part of its assets, operations or business other than in the ordinary course of business;
(b) a party ceases to carry on business;
(c) a party ceases to be able to pay its debts as they become due;
(d) 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;
(e) any step is taken to enter into any arrangement between a party and its creditors; or
(f) 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:
(a) 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;
(b) any application or right to apply for registration of any of the rights referred to in paragraph (a); and
(c) 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 you or your Authorised Users' 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.
Locations mean the addresses specified in the Quote and any additional and replacement addresses notified in writing by you to us and accepted by us in writing.
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 has acquired the Product on terms that are substantially equivalent to these Conditions.
Personal Information has the same meaning as in the Privacy Act 1988 (Cth).
Personnel means, in relation to a party, the officers, employees, contractors and agents of that party.
Product means the Core Product and each Add On.
Quote means an executed quotation between you and Pathzero for the Core Product and/or any Add On (as applicable).
Receiving Party means a party to this Agreement who obtains Confidential Information of the other party to this Agreement.
Renewal Period is defined in clause 2.2(b).
Subscription Period means the Initial Subscription Period and all Renewal Periods.
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 means the period commencing on the Commencement Date and ending on the effective date of termination of this Agreement under clause 13.
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/.
In this Agreement, unless otherwise stated, or where the context otherwise requires:
(a) the singular includes the plural and vice versa, and a gender includes other genders;
(b) another grammatical form of a defined word or expression has a corresponding meaning;
(c) 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;
(d) a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
(e) a reference to A$, $A, dollar or $ is to Australian currency;
(f) a reference to time is to the time in Sydney, Australia;
(g) 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;
(h) a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;
(i) 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;
(j) the meaning of general words is not limited by specific examples introduced by including, for example, such as or similar expressions;
(k) 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;
(l) 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
(m) 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.
Headings are for ease of reference only and do not affect interpretation.
1.4 Agreement and order of precedence
(a) This agreement consists of:
(i) these Conditions;
(ii) the Quote for the Core Product;
(iii) any Quotes for an Add On (or Add Ons) accepted pursuant to clause 5; and
(iv) the Documentation (if any),
(b) If there is an inconsistency between the Quote for the Core Product or an Add On and any other document listed in paragraph (a), then:
(i) the Quote will prevail but only to the extent that it is expressly stated to override specific provisions of another document; and
(ii) in all other cases, these documents will prevail to the extent of any inconsistency in the descending order of precedence listed in paragraph (a).
2. Use of Product
2.1 Grant of licence
Subject to your payment of the Fees in accordance with this Agreement and the terms of this Agreement, we grant you a non-exclusive, non-transferable, revocable licence to access and use, and authorise an unlimited number of Authorised Users to use, the Product for the number of Locations specified in the Quote.
2.2 Subscription Period
The licence granted to you under clause 2.1 commences on the Access Date and will continue:
(a) for the Initial Subscription Period; and
(b) automatically for successive 12 months thereafter (each, a Renewal Period),
unless this Agreement is terminated earlier in accordance with clause 13.
2.3 Change to number of Locations
(a) You may:
(i) increase the number of Locations at any time by making a request in writing;
(ii) decrease the number of Locations with effect from the end of the Initial Subscription Period or then current Renewal Period (as applicable), by making a request in writing at least 30 days prior to the end of the Initial Subscription Period or then current Renewal Period (as applicable).
(b) If you request an increase in the number of Locations, the Fees for further Locations specified in the Quote (Further Location Fee) will apply from the date on which we confirm your request in writing (calculated pro rata based on the number of months left in the Initial Subscription Period or current Renewal Period).
(c) If you request a decrease in the number of Locations, the Fees for additional Locations specified in the Quote will be reduced with effect from the first day of the next Renewal Period. The new annual Fees for additional Locations will be calculated based on the number of remaining Locations multiplied by the Further Location Fee.
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
(a) 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, and authorise your Personnel to 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.
(b) 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, any you must immediately cease using (and ensure all your Personnel immediately cease using) the Digital Assets.
3.3 Trade Mark ownership and quality control
(a) 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.
(b) 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.
(c) You must:
(i) 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;
(ii) comply with any directions given to you by Pathzero in relation to the Trade Marks
(iii) not use the Trade Marks in any way that may damage the goodwill or reputation of Pathzero's brand;
(iv) 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;
(v) 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;
(vi) 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;
(vii) 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;
(viii) not use any name, word, mark, design, emblem, visual representation or slogan similar to or capable of being confused with the Trade Marks;
(ix) 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
(x) 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 and responsibility for users
4.1 Access Credentials
In order to access the Product, each Authorised User will be issued (by us or an Administrative User), or must create, a unique user name and password through which that Authorised User may access the Product (Access Credentials). You acknowledge that we can require Authorised Users to:
(a) replace passwords used to access the Product; and/or
(b) adopt specific protocols for devising new or replacement passwords,
and you will ensure that each Authorised User complies with any such requirements.
(a) You will ensure that each Authorised User keeps his or her Access Credentials secret, and does not disclose or share those Access Credentials with any person.
(b) You must ensure that, to the extent practicable, the Product is protected at all times from unauthorised access or use and from physical misuse, damage or destruction by any person.
(c) You must notify us if:
(i) an Authorised User ceases to be your Personnel;
(ii) the security of the user name and password issued to an Authorised User is, or becomes, compromised; or
(iii) you suspect that there has been unauthorised access to and/or use of the Product through particular Access Credentials.
(d) 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 the Access Credentials issued to any Authorised User, irrespective of whether that access and/or use is effected by the particular individual to whom the Access Credentials were issued.
(a) comply with all reasonable directions issued by us regarding use of the Product;
(b) ensure that you use the Product only in accordance with this Agreement; and
(c) ensure that each Authorised User who accesses or uses the Product is properly trained in the operation of the Product.
4.4 Access and usage restrictions
You must not, and must ensure that your Authorised Users do not:
(a) allow any person (other than Authorised Users) to access or use the Product for any purpose without our prior written consent;
(b) modify, add to, adapt, delete or amend any part of the Product without our prior written consent;
(c) 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;
(d) 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;
(e) use the Product:
(i) for any unlawful purpose; or
(ii) in a manner than contravenes any applicable laws;
(f) 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;
(g) transmit or introduce any Harmful Code into or via the Product; or
(h) directly or indirectly, introduce or permit the introduction by your Personnel (including any User) 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:
(a) 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) are unavailable for any reason, including directly or indirectly as a result of:
(i) telecommunications unavailability, interruption, delay, bottleneck, failure or fault;
(ii) negligent, malicious or wilful acts or omissions of third parties (including our third party service providers);
(iii) 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;
(iv) services provided by third parties ceasing or becoming unavailable; or
(v) Force Majeure Events;
(b) to the extent permitted by law, we:
(i) do not guarantee the accuracy of any Contributor Data obtained using the Product;
(ii) are not responsible for any action taken by you or any Authorised User in reliance on the Contributor Data; and
(c) 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:
(a) for security and availability reasons;
(b) to ensure compliance with this Agreement; and
(c) to detect, prevent or stop any use of the Product or the Digital Assets in breach of this Agreement.
5. Add Ons
(a) If Add Ons are specified by us to be available on request, you may request those Add Ons in writing. We will provide a written quotation in response to any such request within ten (10) Business Days.
(b) If you accept the quotation provided under paragraph (a), we will provide the requested Add Ons. The Fees for those Add Ons will be as specified in the accepted Quote.
6. Intellectual Property Rights
6.1 Customer Data and OC Data
(a) Subject to clause 6.3, all rights, title and interest (including all Intellectual Property Rights) in the Customer Data vest in you on their creation.
(b) You grant us:
(i) 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
(ii) 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.
(c) 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.
(d) If a Quote specifies that you have acquired the 'Portfolio Profile' Add On:
(i) you may request access to view OC Data through the Product;
(ii) you acknowledge that all rights, title and interest (including all Intellectual Property Rights) in the OC Data remain vested in the Other Customers; and
(iii) if an Other Customer consents to your access to its OC Data, we grant you a non-exclusive licence (with no right to sublicense) to use that OC Data during the term of this Agreement solely for your internal business purposes.
6.2 Contributor Data
(a) 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.
(b) 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.
6.3 Product, Digital Assets and Documentation
(a) 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).
(b) 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.
(a) You agree that we can 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.
(b) Subject to paragraph (a), we will seek your approval in writing prior to referring to you in any marketing material.
8.1 Payment of Fees
You must pay us the Fees as specified in each Quote within fourteen (14) days of the receipt of a correctly rendered tax invoice, or as otherwise invoiced by us from time to time.
8.2 Fee increases
We may, with effect from the start of each Renewal Period, increase the Fees. If such increase occurs, we will tell you in writing at least ninety (90) days beforehand.
8.3 Interest on late payments
If any amount payable under this Agreement is in arrears for more than thirty (30) days, we reserve the right to charge interest on the overdue amounts, calculated daily at the rate of 1% greater than the Commonwealth Bank of Australia's annual business lending rate then applying.
9.1 Defined terms
In this clause 9, a word or expression defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) has the meaning given to it in that Act.
9.2 GST inclusive amounts
For the purposes of this Agreement, where the expression ‘GST inclusive’ is used in relation to an amount payable or other consideration to be provided for a supply under this Agreement, the amount or consideration will not be increased on account of any GST payable on that supply.
9.3 Consideration GST exclusive
Any consideration to be paid or provided for a supply made under or in connection with this Agreement, unless specifically described in this Agreement as 'GST inclusive’, does not include an amount on account of GST.
9.4 Gross up of consideration
Despite any other provision in this Agreement, if a party (Supply Maker) makes a supply under or in connection with this Agreement on which GST is imposed (not being a supply the consideration for which is specifically described in this Agreement as GST inclusive):
(a) the consideration payable or to be provided for that supply under this Agreement but for the application of this clause (GST exclusive consideration) is increased by, and the recipient of the supply (Recipient) must also pay to the Supply Maker, an amount equal to the GST payable by the Supply Maker on that supply; and
(b) the amount by which the GST exclusive consideration is increased must be paid to the Supply Maker by the Recipient without set off, deduction or requirement for demand, at the same time as the GST exclusive consideration is payable or to be provided.
9.5 Reimbursement (net down)
If a payment to a party under this Agreement is a reimbursement or indemnification, calculated by reference to a loss, cost or expense incurred by that party, then the payment will be reduced by the amount of any input tax credit to which that party is entitled for that loss, cost or expense.
10. Confidentiality and privacy
10.1 Use and disclosure
A Receiving Party:
(a) may use Confidential Information of the Disclosing Party only for the purposes of this Agreement; and
(b) must keep confidential all Confidential Information of the Disclosing Party except:
(i) (in your case) to the extent required to enjoy the benefit of the licence granted under clause 2.1;
(ii) (in our case) for disclosures permitted under clause 6.1(c);
(iii) for disclosures permitted under this clause 10; and
(iv) to the extent (if any) the Receiving Party is required to disclose any Confidential Information by law.
10.2 Use and disclosure of Confidential Information
A Receiving Party may disclose Confidential Information of the Disclosing Party to persons who:
(a) have a need to know for the purposes of this Agreement (and only to the extent that each has a need to know); and
(i) before disclosure:
(ii) 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
(b) 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).
10.3 Receiving Party's obligations
A Receiving Party must:
(a) ensure that each person to whom it discloses Confidential Information of the Disclosing Party under clause 10.2(b) complies with its Direction; and
(b) notify the Disclosing Party of, and take all steps to prevent or stop, any suspected or actual breach of a Direction.
10.4 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:
(a) before doing so:
(i) notify the Disclosing Party; and
(ii) 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
(b) notify the third person that the information is confidential to the Disclosing Party.
10.5 Compliance with privacy laws
(a) 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:
(i) the disclosure is for a purpose related to the Product or this Agreement;
(ii) you have obtained all consents required to be obtained under the Privacy Act; and
(iii) to do so would not otherwise breach the Privacy Act.
(b) 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.
(c) 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.
11. Exclusion and limitation of liability
11.1 No exclusion or limitation
(a) 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.
(b) Nothing in this clause 11 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:
(i) contravene that statute; or
(ii) cause any term of this Agreement to be void,
11.2 Exclusion of implied obligations and limitation of liability
Except in relation to Non-excludable Obligations, your liability to pay the Fees, and your breach of any of the licences granted to you under this Agreement:
(a) 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; and
(b) each party's (Liable Party) liability to the other (Claiming Party) arising directly or indirectly under or in connection with this Agreement (and whether arising under any statute, in tort (for negligence or otherwise), or on any other basis in law or equity), is limited as follows:
(i) the Liable Party excludes all liability 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; and
(ii) the Liable Party's total aggregate liability to the Claiming Party, is otherwise limited to the amounts paid by you to us under this Agreement in the 12 months immediately preceding the date on which the claim giving rise to such liability arose.
12.1 Intellectual Property Rights infringement
(a) 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.
(b) If a third party makes an IPR Claim, you must:
(i) notify us in writing as soon as practicable of the IPR Claim having been made or brought against you;
(ii) 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;
(iii) provide us with reasonable assistance (at our expense) in conducting the defence or settlement of the IPR Claim; and
(iv) 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.
(c) To the extent permitted by law, the remedies specified in paragraphs (a) and (b) are your sole remedy in respect of an IPR Claim.
(d) 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).
12.2 Your indemnity
Notwithstanding clause 12.1, 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:
(a) by any third party arising from the use of the Product (including access to any OC Data) by you or any Authorised User; or
(b) by any Authorised User in respect of that Authorised User's use of, or inability to use, the Product (including its use of any OC Data).
13. Suspension and termination
(a) We can suspend your or an Authorised User's access to, or use of, the Product (or any part of it) if we consider that:
(i) you have not paid any Fees by their due date;
(ii) you or any of your Authorised Users are accessing or using the Product:
(A) to commit an illegal act; or
(B) in a manner that breaches this Agreement; or
(iii) 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).
(b) We will:
(i) to the extent reasonably practicable and lawfully permitted, provide you with reasonable prior notice of any such suspension; and
(ii) use reasonable efforts to re-establish the Product promptly after determining that the issue causing the suspension has been resolved.
(c) No suspension effected under this clause 13 will excuse you from any obligation to make payments under this Agreement.
13.2 Termination without cause
(a) Either party may terminate this Agreement without cause by giving not less than sixty (60) days' notice prior to the expiry of:
(i) the Initial Subscription Period; and
(ii) any Renewal Period.
(b) If you terminate this Agreement under paragraph (a) or clause 17.1(a), you will pay us for any costs incurred or any amounts payable for services performed up to the date of termination.
13.3 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:
(a) breaches any term of this Agreement that is not capable of remedy;
(b) breaches any term of this Agreement that is capable of remedy and fail to rectify that breach within twenty (20) Business Days of receiving a notice from the Terminating Party requiring the Breaching Party to do so; or
(c) 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)).
13.4 Rights and obligations on expiry or termination
On the date of expiry or effective termination of this Agreement:
(a) the licence granted under clause 2.1 terminates;
(b) the licence granted under clause 3(a) terminates;
(c) the licence granted under clause 6.1(d) terminates;
(d) you must immediately cease using (and must ensure all your Authorised Users immediately cease using) the Product;
(e) you must immediately cease using (and ensure all your Personnel immediately cease using) the Digital Assets; and
(f) you must within thirty (30) 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 (or your Authorised Users') possession or control.
14. 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 14 does not apply to any obligation to pay money.
15. Notices and communications
15.1 Service of Notices
A notice, demand, consent, approval or communication under this Agreement (Notice) must be:
(a) in writing, in English and signed by a person duly authorised by the sender; and
(b) hand delivered or sent by prepaid post or email to the recipient’s address for Notices specified in the Quote, as varied by any Notice given by the recipient to the sender.
15.2 Effective on receipt
A Notice given in accordance with clause 15.1 takes effect when taken to be received (or at a later time specified in it), and is taken to be received:
(a) if hand delivered, on delivery;
(b) if sent by prepaid, certified or registered post, on the second Business Day after the date of posting (or on the seventh Business Day after the date of posting if posted from a different country to the country of its destination); or
(c) in the case of email, on the first to occur of:
(i) receipt by the sender of an email acknowledgement from the recipient’s information system showing that the Notice has been delivered to the email address stated in the Quote;
(ii) the time that the Notice enters an information system that is under the control of the recipient; and
(iii) the time that the Notice is first opened or read by the intended addressee,
however, if the sender receives an out of office reply that states the recipient is out of the office until a later date, the notice will only be taken to be given on that later date,
but if the delivery, receipt or transmission is not on a Business Day or is after 5.00pm on a Business Day, the Notice is taken to be received at 9.00am on the next Business Day.
15.3 Notices that must not be sent by email
A Notice may not be sent by email if the Notice relates to termination of this Agreement.
16. Dispute resolution
16.1 No court proceedings unless procedure followed
A party must not commence proceedings (except proceedings seeking interlocutory relief) unless it has complied with this clause 16.
16.2 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).
16.3 Negotiated resolution
(a) When a Dispute Notice is given, each party's representatives must meet and attempt to resolve the Dispute.
(b) If the parties' representatives cannot resolve the Dispute, then the parties' immediate managers must meet and attempt to resolve the Dispute.
(c) 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.
If the chief executive officers (or their nominees) cannot resolve the Dispute under clause 16.3 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.
16.5 Court proceedings if procedure fails
If the parties cannot resolve a Dispute in accordance with the escalation procedure in clauses 16.3 and 16.4, then any party may commence court proceedings.
16.6 Release if other party breaches
If a party breaches this clause 16 in relation to a Dispute, then the other party need not comply with this clause 16 in relation to that Dispute.
16.7 Obligations continue
The parties must continue to perform their respective obligations under this Agreement pending the resolution of a Dispute.
Each party must pay its own costs of complying with this clause 16.
(a) Pathzero may alter these Conditions from time to time. If we reasonably consider that the alteration is likely to:
(i) 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
(ii) have a significant detrimental impact on you, then we will make such alterations to these Conditions no sooner than 10 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.
(b) Documentation may be altered by Pathzero at any time by Pathzero providing a copy of the altered documentation to you.
(c) A Quote may be altered only in writing signed by each party.
17.2 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.
Each party must pay its own costs of negotiating, preparing and executing this Agreement.
17.4 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.
17.5 Execution and counterparts
(a) Where a person purports to execute the 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.
(b) This Agreement (including each Quote) may be executed in counterparts. All executed counterparts constitute one document.
17.6 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.
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.
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.
Except where this Agreement expressly states otherwise, it does not create a relationship of employment, trust, agency or partnership between the parties.
17.10 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.
17.11 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.
Date updated: 14 July 2022