This Privacy Statement is made on behalf of AssetEx Pty Ltd and AssetEx Ltd and all references to "AX", "AssetEx", Ad Manager, "Company", "we", "us", or "our" in this statement are references to AssetEx and its related bodies corporate. Protecting your information is important.At AX, we understand the importance you attach to information that identifies you (your 'personal information'). This Privacy Statement tells you how we collect information when you visit this site and what we do with it.
What information we collect about you and what we do with it.AX collects information about you each time you come to any part of theAX websites. We collect information about the time, date, duration and usage of the AX website/s and applications.
AX uses non-personalised statistics about the use of our website to continually improve it and to improve our customer service.
If you submit information to an AX company either using an electronic form or by sending an email we collect that information and use it for the purposes that you have provided it.
In addition, we may use your information to provide you with special offers, information about new products and special promotions that we think may interest you. If you do not want to receive this information, you can let us know by sending AX an email at [email protected], or by mail PO Box 325 Alderley QLD 4051 Australia. Please provide us with your customer details including name, address and contact number. In addition, indicate if you do not wish to receive any more promotional material.
What is a Cookie and what are they used for?
A cookie is a text file placed into the memory of your computer by our computers. Our computer can retrieve a copy of this text file.
If you think the information we hold about you is incorrect or you want to update it
We rely on the accuracy of the information you provide to us. If you think that we hold information about you that is incorrect in any way, or out of date, or you simply want to notify us of something new, please send an email to [email protected] indicating that your information is incorrect and the details.
Our security procedures
In designing this web site, we have incorporated security procedures and practices that we consider are consistent with Australian industry practice. We review our security procedures from time to time and update them when relevant.
Personal information about you and your business withAX is only accessible by you and by those who are authorised by us to access it. They also must use a password, and are bound to safeguard the information and access it only for approved business purposes.
Links to other sites
You may be able to access various other sites by clicking on links that we have provided. You should be aware that other sites are not subject to our privacy standards and procedures.
Changes to our Privacy Statement
This information relates to our current privacy standards. We may vary our privacy standards from time to time. We will notify you of these changes by publishing them on this website.
If you have any comments or suggestions regarding our website or this privacy statement please email us at [email protected]
AXData Privacy Information Bulletin
The Privacy Amendment (Private Sector) Act 2000 has come into effect as of the 21st of December 2001. As part of the Act, 10 National Privacy Principles (NPPs) were enacted. The 10 NPP's are as follow
6. Access and correction
A full version of the NPP's may be viewed at the Privacy Commission's Website - www.privacy.gov.au.How does the Privacy amendments affect my AX data services?According to advice from our solicitors and information from the Privacy Commissioner's office, the implications of the Privacy changes are that we will have some changes, but nothing substantial that you, the subscriber, will notice. However, there are obligations that you (the subscriber), will need to comply with.
What do I have to agree to do to access AX data's services?
We will ask you, upon entering the data information services area, to acknowledge that you are bound by the provisions of the Privacy Act and will comply with this at all times. This will now form part of your contract. If you do not agree to this, you will not be allowed to access the system. We apologise for any inconvenience this may cause.
How will this affect the information I collect?
Under the Privacy Act, when you are gathering information from your clients, for input into one of AX data's systems, we require that you have obtained the necessary approvals from your client for the use of their personal information. Again, before uploading this to our systems, we will again ask you have you complied with the Privacy Act.These privacy compliance screens will only appear once, upon first time entry to the system. However your obligations will continue with respect of privacy compliance if you continue using information sourced from our services, even if you cease subscribing to our services. Disclaimer* Whilst care has been taken in the production of this information bulletin and the information contained has been obtained from sourcesAX believes to be reliable,AX does not warrant, represent or guarantee the accuracy, adequacy, completeness or fitness for any purpose of this bulletin or any part of it can accept no liability for any loss incurred in any way whatsoever by any person who may rely on it. We recommend that you get your own legal advice on the implications of the privacy act in your business.
General Terms and Conditions
THESE TERMS AND CONDITIONS APPLY TO ALL CUSTOMERS OF THIS WEB SITE EXCEPT WHERE THE EDUCATION TERMS AND CONDITIONS DETAILED BELOW APPLY. BY VISITING AND USING THE WEB SITE YOU AGREE AS FOLLOWS:
This PRODUCTS AGREEMENT is entered into as of the Effective Date which we record as the earliest date and time that you either sign the usage contract or you login to the application, between AssetEx and its related bodies corporate.
1. DEFINITIONS AND INTERPRETATIONS
1.1 In this agreement unless the context otherwise requires, the following words will bear the meaning set out hereunder:
Company means AssetEx.
Confidential Information means all confidential, non-public or proprietary information, regardless of how the information is stored, which is delivered to the Customer before, on or after the date of this Contract, relating to the valuation products, product information services or the business, technology or other affairs of the Company, including any data (including Product Data), valuation and market share analyses, valuation models and tools, indices, programs or algorithms.
Contract means this Products Agreement which consists of these General Terms & Conditions and Schedule A provided to the Customer separately in either hard or soft copy.
Customer has the meaning set forth in Schedule A.
Customer Materials means any and all data, information, content, photographs and other materials provided or that may be supplied to the Company by the Customer (or otherwise obtained by the Company from the Customer), directly or indirectly, from time to time.
Effective Date is the earlier date of the Date on the signed Services Schedule and Agreement document or the first user accesses the service. It has the meaning set forth in the first paragraph to these General Terms and Conditions.
Excluded Information means Confidential Information which:
(a) is in or becomes part of the public domain other than through breach of this Contract or an obligation of confidence owed to the Company;
(b) the Customer can prove, by contemporaneous written documentation, was already known to it at the time of disclosure by the Company (unless such knowledge arose from disclosure of information in breach of an obligation of confidentiality); or
(c) the Customer acquires from a source other than the Company where such source is entitled to disclose it.
GST has the meaning it has in the A New Tax System (Goods and Services Tax) Act 1999 (Cwlth).
Initial Period has the meaning set forth in clause 2.
Insolvent means, with respect to an entity, that such entity is or states that it is insolvent, is unable to pay its debts as they come due, is in liquidation, is under administration or has a controller appointed to its property, ceases conducting business in the normal course, is subject to any arrangement to protect itself from creditors or dissolves.
Law means common law, principles of equity, and laws made by parliament (laws made by parliament include State, Territory and Commonwealth laws and regulations and other instruments under them, and consolidations, amendments, re-enactments or replacements of any of them).
Party and Parties means the Company and the Customer.
Product Data means any data or results, including any asset information, ownership information, sales information, photographs, valuation or market share analyses, index results or alerts, usernames, passwords, contained within or provided through the Products.
Products means those asset information services and/or valuation products listed as such on Schedule A.
Renewal Period has the meaning set forth in clause 2.
Territory means Australia.
1.2 The headings in this Contract are for convenience of reference only and will not affect the interpretation hereof. The words include and including when introducing an example, do not limit the meaning of the words to which the example relates to that example or examples of a similar kind. A clause or Schedule is a reference to a clause or Schedule to this Contract. Words importing the singular number will include the plural and vice versa, and words importing the masculine gender include all other genders.
2.1 This Contract will commence on the Effective Date and will continue for the initial period of 1 year, thereafter, this Contract will automatically renew for subsequent one (1) year renewal periods (each, a Renewal Period) unless a Party gives the other Party notice of its intent to not renew at least ninety (90) days prior to the end of the Initial Period or any Renewal Period. Notwithstanding the foregoing, this Contract may be terminated earlier in accordance with clause 12.
3. LICENSE AND RESTRICTIONS
3.1 Subject to the terms of this Contract and the Customers performance of its obligations, the Company hereby grants to the Customer a non-exclusive, non-transferable, non-sublicensable limited license during the Initial Period and each Renewal Period (if any) to access and use the Products and the Product Data in the Territory, within the Customers enterprise only and solely for the Customers internal business purposes in the Territory.
3.1(a) Notwithstanding anything to the contrary in this Contract, except as and then only to the extent expressly permitted in Schedule A, the Customer must only use the Products or the Product Data (or other Confidential Information) at the particular site(s) listed on Schedule A and the Customer agrees that it will not (and will not permit or allow any person to) access or use the Products or the Product Data (or other Confidential Information) from any site not listed on Schedule A without having first obtained express prior written consent ofAX to do so.
3.2 Except as set forth in clause 3.1, the Customer is not licensed to use the Products or the Product Data and hereby undertakes not to do so.
3.3 The Customer acknowledges and agrees to use the Products and the Product Data solely for the purpose for which they are intended, and in accordance with all Laws. Except as expressly permitted under this Contract or to the extent permitted by Law, the Customer and its employees and representatives will not, or encourage any person or entity to:
(a) decompile, disassemble or otherwise reverse engineer all or any portion of the Products, including any source code, object code, algorithms, methods or techniques used or embodied therein;
(b) modify or create any derivative works based upon the Products or the Product Data;
(c) distribute, resell, disclose, market, rent, lease, assign, incorporate into any database, sublicense or otherwise transfer any Product or Product Data to any third party, or use the Products or the Product Data on behalf of or for the benefit of any third party;
(d) remove or alter any copyright, trademark, logo or other proprietary notice or label appearing on or in the Products or the Product Data;
(e) incorporate any portion of the Products or the Product Data into any other materials, products or services that are not intended for the Customers internal business use; or
(f) use, or offer to use, the Products or any Product Data for or in connection with any direct marketing activities.
4.1 The Customer will access the Products via the Companys Web site assetex.com.au. The Customer acknowledges and agrees that, in the event that the Company provides the Customer with any identification numbers and/or passwords, it:
(a) bears sole responsibility for protecting all identification numbers and passwords;
(b) will not provide such identification numbers and passwords to any third party;
(c) will remain fully responsible and liable for any authorised or unauthorised use of any identification numbers and passwords;
(d) will for security purposes change such identification and passwords periodically or as directed by the Company from time to time.
4.2 The Customer will be responsible for obtaining access to the Products, and for any and all costs and expenses in connection with accessing and using the Products, including Internet service provider fees, telecommunications fees, and the cost of any and all equipment (including hardware and software) used by the Customer in connection with its access and use of the Products as permitted hereunder. The Customer acknowledges that the Company will have no obligation to assist the Customer in using or accessing the Products except as expressly provided in this Contract. For clarity, the Company will not be liable for any delay, defect, deficiency and/or loss of service in connection with the Products or any loss caused by or on account of any of the following:
(a) equipment, data or services supplied by the customer or any third party; or
(b) any telecommunications organisation equipment or services (including any speeds or capabilities of such equipment or services) or any requirements of the telecommunications authority.
4.3 The Company will not provide the Customer with any software, and all access to the Products will be via the Companys Web site as provided in clause 4.1, except to the extent expressly provided in Schedule A.
4.4 Subject to clause 7, the Company will maintain the Web site through which the Products are accessed, and perform network, hardware or service maintenance services or upgrades, which may require the Products to be non-accessible for a period of time. The Company will endeavour to perform such services or upgrades during typically low usage periods.
4.5 The Company reserves the right to change or refine the features and functionality of any Product, provided that the Products will at all times retain those basic features described on Schedule A.
5. CUSTOMER MATERIALS
5.1 The Customer may from time to time provide or otherwise make available to the Company the Customer Materials. The Customer hereby grants the Company and its service providers a worldwide, royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, distribute, transmit, perform, display (publicly or otherwise), adapt, make derivative works of, and otherwise commercialize and exploit, the Customer Materials. The Customer represents and warrants to the Company and its service providers that it has the right to grant the foregoing licenses in and to the Customer Materials; that the Customer Materials do not and shall not infringe upon or misappropriate any rights, including, without limitation, intellectual property rights, of any third parties or the Company and its service providers; and that such Customer Materials are free of worms, viruses, Trojan Horses, and other disabling code. The Customer grants the Company the perpetual right to source any images or information that is publically available that the Customer has provided to any other service provider. The Customer takes full responsibility for the information that is in the Customers My Stock section of the application.
6.1 The Customer will pay the Company the fees set forth in, and in accordance with, Schedule A. All such fees, when paid, are non-refundable, even if the Customer stops using the Products or the Product Data for any reason.
6.2 Except as expressly provided for in Schedule A, all products are GST exclusive. If provision of the Products under this Contract is subject to GST, the Customer must pay to the Company an additional amount equal to the relevant fee multiplied by the applicable GST rate. Such additional amount is payable at the same time as the related fee. When executed, this Contract shall constitute a tax invoice.
6.3 The Company may at its discretion increase the fees for any renewal period, by providing the Customer with written notice of its intention to do so at least sixty (60) days prior to the end of the Initial Period or the then current Renewal Period. Notwithstanding clause 2, upon receiving a notice of a fee increase from the Company, the Customer will have the right to elect to terminate this Contract at the end of the Initial Period or then current Renewal Period, as applicable, by providing the Company with written notice of its intention to do so within thirty (30) days of its receipt of the Companys written notice of fee increase.
6.4 Any amounts not paid to the Company when due will be subject to interest equal to the lesser of one and one-half percent (1.5%) per month and the maximum amount permitted by Law, calculated on a daily basis.
7. LIMITED WARRANTY
7.1 The Company hereby represents and warrants that the Products will have those features described in Schedule A, and that it will use commercially reasonable efforts to ensure that the Products are accessible via its Web site in accordance with the terms hereof. In the event of any breach of this warranty, the Customer agrees, as the Companys and its service providers sole and exclusive obligation and the Customers sole and exclusive remedy, to use commercially reasonable efforts to modify, correct or provide access to the relevant Product.
7.2 The warranty set forth in clause 7.1 is in lieu of any other warranties., and to the fullest extent permitted by Law (subject to clause 7.3), all other warranties are hereby excluded, and the Company and its service providers hereby expressly disclaim all warranties:
(a) that the Products or the Product Data will meet the Customers requirements;
(b) that the Products or the Product Data will be error-free, that the Companys Web site through which the Products and Product Data are accessed will function in an uninterrupted manner, be available 24 hours a day, 7 days a week, or be fully secure;
(c) regarding the use of the Products or the resulting Product Data, in terms of correctness, accuracy, reliability or otherwise;
(d) that the statistical methods on which any of the Products are based use appropriate or accurate assumptions, are fit for the Customers particular purpose or are otherwise suitable for the Customers use; or
(e) that the performance of the Products will not be affected by data entry errors, including incorrect entries, double entries or delayed entries, or incorrect or untimely data supplied by the Companys third party suppliers.
7.3 To the extent that the Trade Practices Act implies any warranties under this Contract, then the Companys and its service providers liability in respect of such implied warranty is limited:
(a) in the case of goods, to any one or more of the following (as the Company and its service providers may in their discretion determine):
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of the goods;
(iii) the payment of the cost of replacing the goods or acquiring equivalent goods; or
(iv) the payment of the cost of having the goods repaired; or
(b) in the case of services, to any one of the following (as the Company and its service providers may in their discretion determine):
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again, except as expressly provided elsewhere in this Contract.
7.4 The Products do not constitute an valuation or appraisal of the subject assets. They should not be relied upon in lieu of an appraisal or underwriting process. THE ACCURACY OF THE METHODOLOGY USED TO DEVELOP THE PRODUCT DATA GENERATED BY THE PRODUCTS, THE EXISTENCE OF THE SUBJECT ASSET, AND THE ACCURACY OF THE PREDICTED VALUE AND ALL RULE SETS PROVIDED ARE ESTIMATES BASED ON AVAILABLE DATA AND ARE NOT GUARANTEED OR WARRANTED. The condition of the subject property and current market conditions can greatly affect the validity of the Products and the Product Data. Any Product Data generated does not include a physical inspection of the subject asset or a visual inspection or analysis of current market conditions by a licensed or certified appraiser, which is typically included in an appraisal.
7.5 THE PRODUCTS AND THE PRODUCT DATA, INCLUDING, WITHOUT LIMITATION, ANY INFORMATION, DATA, PRICES, AND QUOTATIONS CONTAINED THEREIN, ARE SUBJECT TO CHANGE WITHOUT NOTICE. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, THE PRODUCTS AND THE PRODUCT DATA ARE PROVIDED TO THE CUSTOMER ON AN AS IS, AS AVAILABLE BASIS WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSES, TITLE, NON-INFRINGEMENT, SECURITY, AVAILABILITY, ACCURACY, OR OTHERWISE.
7.6 The Customer acknowledges that it has read, understands and accepts and agrees to the additional terms, conditions and limitations of the Companys suppliers set forth on Schedule A, if any.
8. LIMITATION OF LIABILITY
8.1 To the maximum extent permitted by Law, in no event will the Companys and its service providers aggregate liability to the Customer exceed the lesser ofone thousand dollars (A$1,000) and the amount of fees actually paid by the Customer to the Company under this Contract.
8.2 To the maximum extent permitted by Law, in no event will the Company and its service providers be liable for
(a) any special, consequential, indirect, incidental, punitive or exemplary damages of any kind, or
(b) damages for any loss of profits or revenue, loss resulting from interruption of business or loss of use or data, arising out of or relating to this Contract or the subject matter hereof, however caused, even if the Company and its service providers have been advised of or should have known of the possibility of such loss. The Customer assumes the risk in using the Products and the Product Data as well as total responsibility for establishing such procedures for data backup and virus checking as the Customer considers necessary.
9. PROPERTY RIGHTS; COMPANY INDEMNIFICATION
9.1 The Customer acknowledges and agrees that, as between the Company and the Customer, the Company or one or more of its service providers is and will remain the sole and exclusive owner of all right, title and interest in and to the Products and the Product Data, including any and all creations, inventions and intellectual property rights contained or embodied within the Products and the Product Data. The Customer agrees that it acquires no rights in or to the Products or the Product Data provided pursuant to this Contract except for the limited license set forth in clause 3.1, and that it will not, and will not permit any other person or entity to, infringe upon, harm or contest the validity or the Companys and its service providers ownership of the Products or the Product Data, or the creations, inventions and intellectual property rights contained or embodied within the Products and the Product Data. The Customer agrees that it will not make copies (other than for back-up or disaster recovery purposes) or derivative works of the Products and the Product Data. All other uses of the Products and the Product Data not expressly addressed in this Contract are strictly prohibited.
9.2 The Company will defend, or at its option settle, any third party claim or suit brought against the Customer on the basis that the Customers use of the Products as permitted under this Contract, infringes any of such partys Australian patents or copyrights, and will pay any final judgment entered against the Customer or any settlement of such claim or suit. The Companys foregoing obligations are subject to the following conditions:
(a) the Customer promptly notifies the Company in writing of any allegation of infringement, and fully cooperates with the Company, at the Companys reasonable cost, in the defence or settlement of such claim or suit;
(b) the Customer makes no admissions;
(c) the Customer at the Companys request allows the Company or its assignee to solely conduct and/or settle all negotiations and litigations; and
(d) any costs incurred and recovered in such negotiations and litigation will be to the account of the Company and/or its assignee.
9.3 The Companys obligations under clause 9.2:
(a) will not apply to, and the Customer will indemnify and hold the Company and its service providers harmless from, any claim based upon use of any Products or any Product Data in combination with any equipment, services, data, algorithms, models, indices, tools and/or products not supplied by the Company or its service providers, if the alleged infringement would not have occurred but for such use;
(b) will not apply to, and the Customer will indemnify and hold the Company and its service providers harmless from, any claim relating to the Customer Materials, including the Companys and its service providers use of Customer Materials as permitted under this Contract; and
(c) are limited as to quantum as set out in clause 8.1.
9.4 If at any time all or any part of the Products or the Product Data is, or in the Companys opinion may become, subject of any claim or suit for any infringement, the Company may at its own expense and option modify or replace the affected Product or Product Data so that it is non-infringing, or obtain for the Customer the right to continue using the affected Product or Product Data. If neither of foregoing options is in the Companys opinion commercially reasonable, the Company will have the right to terminate this Contract with immediate effect after which time the Customers use of the affected Product or Product Data is at the Customers sole risk.
Without limiting any of the other terms of this Contract:
10.1 The Customer will follow all reasonable instructions the Company gives from time to time with regard to the use of the Products and Product Data. The Customer will permit the Company at all reasonable times to check that the Products and the Product Data are being used in accordance with the terms of this Contract, and for such purposes the Customer shall maintain complete and accurate records of the Customers use of the Products and the Product Data. The Customer expressly acknowledges that the Company has entered into various licensing agreements for ongoing use of data with various data suppliers and as such the Company has undertaken certain contractual obligations. To assist the Company in meeting these obligations the Customer agrees to comply with and/or accept responsibility for all of the Companys obligations expressed or implied in such supplier agreements.
10.2 The Customer acknowledges and agrees that the Companys ability to provide the Products and the Product Data is subject to its agreements with third party suppliers,
(a) which agreements may expire or terminate or
(b) which suppliers may not provide the services, products or data as provided under such agreements, and that in such circumstances the Company may not be able to, and will have no obligation to, provide some or all of the Products or the Product Data, either on a timely basis or otherwise.
The Company does not verify the accuracy or completeness of any data supplied by any third party.
10.3 If any use is made of the Products or the Product Data by any person or entity other than the Customer and such use is attributed to the act or default of the Customer, then without prejudice to the Companys other rights and remedies the Customer will immediately be liable to pay to the Company an amount equal to the charges which such person or entity would have been obliged to pay had the Company granted a licence to the unauthorised user at the beginning of the period of the authorised use.
10.4 The Customer will be fully responsible for any act or omission of any of its employees or agents.
10.5 The Company will not provide any Product or Product Data to the extent it is prohibited from doing so by Law or any of its agreements with its suppliers or service providers.
10.6 The Company and its service providers reserve the right to suspend or terminate the Customers access to the Products
(a) in the event that any fee is not paid when due,
(b) in the event that the Company or its service providers reasonably believe that the Customer has used or disclosed the Products, Product Data or other Confidential Information in a manner not permitted under this Contract or otherwise has materially breached this Contract, or
(c) an event of force majeure occurs that affects the Companys ability to provide the Products.
11.1 No Confidential Information may be disclosed by the Customer to any person or entity except:
(a) employees of the Customer requiring the information for the purposes of this Contract who
(i) are aware of the confidentiality obligations imposed in this clause 11 and
(ii) have entered into written confidentiality agreements with the Customer which require such employees to comply with confidentiality obligations no less restrictive than those set forth in this clause 11;
(b) to the extent the Customer is required to do so by Law; or
(c) to the extent the Customer is required to do so in connection with legal proceedings relating to this Contract.
11.2 The Customer must not use Confidential Information except for the purpose of exercising its rights or performing its obligations under this Contract.
11.3 Clauses 11.1 and 11.2 and do not apply to Excluded Information.
11.4 Notwithstanding clauses 11.1 and 11.2, the Customer may disclose parts of the Product Data, or conclusions or summaries of information based on the Product Data, provided that the Customer has first obtained the Companys prior written consent for such disclosure and the Customer gives the Company credit as the source for the underlying data in a manner reasonably instructed by the Company.
11.5 The Customer will take any action that is necessary to prevent or remedy any breach of the Customers confidentiality obligations or other unauthorized disclosure of Confidential Information.
11.6 The Customer will not remove, alter, obscure or otherwise modify any trademark, copyright or other proprietary notice or legend or legal disclaimer placed on or contained within the Confidential Information.
11.7 The Customer may not make press or other announcements or releases relating to this Contract and the transactions that are the subject of this Contract without the Companys prior written approval as to the form and manner of the announcement or release, unless and to the extent that the announcement or release is required to be made by the Customer by Law or by a stock exchange with which the Customer is listed.
11.8 Except as otherwise agreed or duly required by Law or any regulatory authority, no Party will disclose the terms of this Contract to any person or entity other than its employees, accountants, auditors, financial advisers or legal advisers on a confidential basis.
11.9 The Customer acknowledges that due to the unique nature of the Confidential Information, any breach by the Customer of its obligations under this clause 11 would result in irreparable harm to the Company and its service providers for which there is no adequate remedy; and therefore, upon any such breach or threat thereof, the Company and its service providers will be entitled to injunctive and other appropriate equitable relief (without the necessity of proving damages, or posting bond or other security), in addition to whatever remedies the Company and its service providers may have at Law.
12.1 Either Party has the right to terminate this Contract, by a written notice to the other Party specifying the event or events in relation to which the notice is given, if:
(a) the other Party becomes insolvent; or
(b) the other Party commits a breach of this Contract, and
(i) the breach is material and not capable of being cured, or
(ii) if the breach is capable of being cured and the defaulting Party fails to cure the breach within thirty (30) of being notified in writing of the breach by the Party giving the notice.
12.2 The Company will have the right to terminate this Contract immediately upon written notice to the Customer in the event that Customer uses or discloses any Confidential Information, Product or Product Data other than expressly permitted under this Contract.
12.3 The Customer will have the right to terminate this Contract, with or without cause, upon at least ninety (90) days prior written notice to the Company.
12.4 In the event that this Contract is terminated, all of the Customers rights to use the Products and Product Data will immediately terminate, and the Customer will at its expense promptly return, or at the Companys election destroy, any copies of Products, Product Data and other Confidential Information that are either in the Customers possession or under the Customers control.
12.5 Termination of this Contract will not act as a waiver of any breach of this Contract and will not act as a release of either Party from any liability for breach of such Partys obligations under this Contract. Neither Party will be liable to the other for damages arising by reason of termination of this Contract in accordance with its terms. Either Partys termination of this Contract will be without prejudice to any other right or remedy that it may have, and will not relieve either Party of any obligation or liability which arose prior to the effective date of such termination.
12.6 The following clauses will survive any termination of this Contract: 1; 4.2; 5; 6; 7; 8; 9; 10.1; 10.3; 10.4; 11; 12; 13; 14; and 15.
13. CUSTOMER INDEMNITY
13.1 The Customer will defend, or at its option settle, any third party claim or suit brought against the Company and its service providers on the basis of any breach by the Customer of this Contract (or any act which, if true, would be a breach of this Contract) or any use or reliance by the Customer of or on any Product or Product Data or any representations or promises made by or for the Customer to others due to or based on any Product or Product Data, and will pay any final judgment entered against the Company and its service providers or any settlement of such claim or suit. The Customers foregoing obligations are subject to the following conditions:
(a) the Company or its service providers promptly notify the Customer in writing of any allegation of infringement, and fully cooperates with the Customer, at the Customers reasonable cost, in the defence or settlement of such claim or suit;
(b) the Company and its service providers make no admissions;
(c) the Company and its service providers at the Customers request allow the Customer to solely conduct and/or settle all negotiations and litigations; and
(d) any costs incurred and recovered in such negotiations and litigation will be to the account of the Customer.
14.1 All notices hereunder will be in writing addressed to the Parties at the respective addresses shown on Schedule A.
14.2 Notice will be deemed given:
(a) in the case of hand-delivered mail upon delivery or in the case of mail upon written acknowledgment or receipt by an officer or other duly authorised employee, agent or representative or the receiving Party (such receipt not to be unduly delayed or withheld), or alternatively in the case of ordinary mail on the fourth day after the date of posting;
(b) in the case of facsimile upon confirmed completion of successful transmission;
(c) in the case of email transmission upon notification of a read receipt (such receipt not to be unduly delayed or withheld).
14.3 A Party may change its address for service of notices under this clause by giving written notification of the new address to the other Party.
15.1 No right under this Contract will be deemed to be waived except by notice in writing signed by the Party to be bound.
15.2 This Contract will be governed by and construed in accordance with the Laws in force in the State of Queensland. Each Party submits to the non-exclusive jurisdiction of the courts of that place.
15.3 No agreement or document having as its purpose or effect the variation, extension or deletion of any of the terms and conditions on this Contract will be binding unless in a writing signed by each Party.
15.4 The Customer may not assign this Contract without the Companys written consent. The Company may assign this Contract or any part of this Contract, or any right or obligation under this Contract, without notice to or the consent of the Customer.
15.5 The Customer warrants that it has not relied on any representation made by the Company which has not been expressly stated in this Contract or upon the descriptions or allusions or specifications contained in any document including any catalogue or other material produced or made available by the Company.
15.6 The Company will not be liable for any failure to perform or delay in performing its obligations if the failure or delay results from circumstances beyond the control of the Company (whether happening in the Commonwealth of Australia or elsewhere, including acts of God, refusal of licence, refusal or revocation of any telecommunications organisations consent in respect of data communication equipment, government act, fire, explosion, accident, strike, industrial dispute, civil commotion or impossibility of obtaining material and/or data).
15.7 If the whole or any part of a provision of this Contract is void, unenforceable or illegal in a jurisdiction it is severed for that jurisdiction. The remainder of this Contract has full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected. This clause has no effect if the severance alters the basic nature of this Contract or is contrary to public policy.
15.8 Nothing contained or implied in this Contract constitutes one Party the partner, agent, or legal representative of the other Party for any purpose or creates any partnership, agency or trust, and neither Party has any authority to bind the other Party in any way.
15.9 The rights and remedies provided in this Contract are in addition to other rights and remedies given by Law independently of this Contract.
15.10 This Contract constitutes the entire agreement of the Parties about its subject matter and supersedes all previous agreements, understandings and negotiations on that subject matter.
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