LICENCE
STANDARD LICENCE FOR THE SUPPLY OF
PRODUCTS
1
APPLICATION OF THIS LICENCE
1.1
When You place an Order with Us for the provision of
Products (subject to Our acceptance of the Order) You enter into a Contract
with Us which consists of:
1.1.1
the Order;
1.1.2
this Licence; and
1.1.3
Our Product rules, policies and guidelines (as amended
from time to time by Us), available [https://orderz.com.au/pricing].
1.2
By placing the Order, You agree to be bound by this
Licence.
2
DEFINITIONS AND INTERPRETATION
2.1
In this Licence the following definitions apply:
2.1.1
“Commencement Date” means the date that
You sign the Order or authorise it by written, electronic or voice
processes or We start supplying the Product, whichever is earlier.
2.1.2
“Contract”
means the legally binding agreement between Us and You for supply or provision
of the Product for valuable consideration.
2.1.3
“You”, “Your” means a person that places an
Order with Us.
2.1.4
“Cyber Networks”,
“Us”, “We” “Our” means Cyber
Networks Pty Ltd, Trading as Cyber Networks, Orderz And SmartWeb (ACN 159 667 151), its assigns and successors in
title.
2.1.5
“GST” means
the Goods and Services tax in the Commonwealth of Australia, as determined by
the A New Tax System (Goods and Services)
Act 1999.
2.1.6
“Licence”
means this licence, subject to and inclusive of the Order and Product rules.
2.1.7
“Order”
means a Contract between a person and Us for the supply or provision of a
Product. Each Order constitutes a separate Contract between the parties.
2.1.8
“PPSA” means
the Personal Property Securities Act
2001;
2.1.9
“Products”
means [Orderz online
ecommerce solution offered on two different product offering under 12
months agreement plans, Orderz Ready and Orderz plus. ].
2.2
In this Licence, unless the context requires otherwise:
2.2.1
the singular includes the plural and vice versa;
2.2.2
a reference to any gender includes all other genders;
2.2.3
a reference to a statute means that statute as in force
from time to time, and to any statute passed in substitution for that statute;
2.2.4
the word “includes” means “includes but is not limited
to”;
2.2.5
where one part of speech of a word is defined, other
parts of speech of that word have corresponding meanings;
2.2.6
a reference to A$, $A, dollar, or $ is to Australian
currency;
2.2.7
if a day on or by which an obligation must be performed
or an event must occur is not a business day in the place where it is to be
performed, the obligation must be performed or the event must occur on or by
the next business day;
2.2.8
headings are for ease of use and reference only, and do
not affect interpretation;
2.2.9
“in writing” includes emails; and
2.2.10
“person” means
a person, corporation, government agency, not for profit organisation or other
entity capable of entering into legal contractual relationships.
3
Term of Your Contract or Product
3.1
This Licence commences on the Commencement Date and
will continue until the earlier of:
3.1.1
completion of the Order; or
3.1.2
termination of this Licence in accordance with the
terms of this Licence.
3.2
At the end of the minimum period for an online Product,
We will continue to supply the Product to You on a month to month basis on the
terms applicable at that time (including price), unless You tell Us in writing
or We tell You otherwise, at least 30 days before the automatic extension.
4
PROVISION OF THE PRODUCTS
4.1
The Products are intended for use by commercial
entities and for non-domestic use. When You place an Order, You accept this
limitation, and further accept that, to the full extent allowable by that legislation,
any consumer protection legislation which operates in any jurisdiction is
excluded.
4.2
The Products are provided only to individual customers
who are 18 years of age and older.
4.3
We will commence supplying the Products to You within fourteen
days of the date of Your first payment for the Product unless otherwise agreed
in writing by Us with You, or you cancel the Contract by providing us with a
completed cancellation form.
4.4
We will continue to provide the Products unless the provision
of the Products is suspended in accordance with clause 10
or until this Licence is terminated in accordance with clause 12.
4.5
Each Product is as described in the Order. It is Your
responsibility to ensure that the particular Product selected is appropriate
for Your needs.
4.6
As part of the sign-up process, We will provide You
with the login information necessary for You to access and use the Products.
4.7
We do not provide file transfer protocol or Cpanel
access to Your (or any agent, employee or other representative of You) under
any circumstances. Any changes required by You that need these tools must be
emailed to Us to allow Us to make those changes. The changes will be
implemented in a timeframe We notify to You, being not less than two business
days.
5.1
Fulfilling Your
Content Entitlements
5.1.1
We are not obligated to collect content for You but We
may do so. You are responsible for fulfilling any content entitlements that come
with a Product We supply to You.
5.1.2
You must give Us any content for a Product by the date
and in the manner We specify. We may not be able to supply a Product to You
until You do so.
5.1.3
If You do not provide Us with content and want Us to
source the content, You may be charged a separate fee for that service based on
Our written agreement.
5.1.4
We are not responsible for, and You must regularly
check and keep current and accurate, the content (whether provided by You or
collected by Us) in the Product that We supply to You. You can update Your content
(for compatible Products) by providing Us with information so that We may
update Your content.
5.2
Our Right to
Reject or Remove Content
5.2.1
We may at any time reject or remove any content from a
Product or change, delete, withdraw, disable or suspend a Product or any content
for any reason and without prior notice to You, including:
5.2.1.1
if provided for under the Product rules, policies and
guidelines;
5.2.1.2
if We reasonably believe that the content, or the use
of it, contravenes any law, infringes or is likely to infringe the rights of
third parties or is inappropriate, unsuitable, offensive, obscene, defamatory
or indecent;
5.2.1.3
if We reasonably believe that the content, or its use,
will result in a breach of this Licence or affect Us or a subsidiary/outsource
partners unfavourably; or
5.2.1.4
in order to comply with requirements, notices,
standards or instructions given to Us or a subsidiary/outsource partners by any
third party, including a regulatory body.
5.3
Presentation, Classification
and Availability of a Product and Content
5.3.1
We may determine, control or change a Product, Your content,
any page, site or other means of displaying the Product or Your content,
including the duration, nature, content, size and presentation (such as format,
design, placement, order and position).
5.3.2
If You have an online Product, mobile Product or other
Products that We nominate from time to time:
5.3.2.1
You agree that We may include in the Product We supply
to You:
a.
links to and content from third party sites or
applications that We reasonably consider to be relevant to You (such as user-
generated reviews and ratings);
b.
widgets, gadgets or other facilities that enable
end-users to interact with third party sites or applications or with You via a
Product; and
c.
links to, and content from, Our user-generated reviews
and ratings;
5.3.2.2
You agree that to carry out these activities referred
to in this clause 5,
You:
a.
must provide Us with any account details (including login
and password) requested by Us if You have already established accounts on third
party sites or applications; and
b.
We may be required to accept third party terms on Your
behalf and You agree to be bound by those third party terms; and
5.3.2.3
We do not accept responsibility or liability for:
a.
any communications or transactions between You or third
parties and end-users (including Our end-users) via links, widgets, gadgets or
other facilities We include in a Product;
b.
any content from a third party site or application or from
Our websites (such as user-generated reviews and ratings) included in a
Product;
c.
any other uses to which end-users put the links,
widgets, gadgets or other facilities We include in a Product We supply to You
(for example, to create and communicate user- generated content); and
d.
any loss or damage arising out of any such links,
content, widgets, gadgets or other facilities for any reason.
5.4
Syndication
Activities
5.4.1
You agree that We may Syndicate (as defined in clause 8.1)
some or all of a Product or Your content to third party sites or applications
and sites or applications owned and/or controlled by Us, such as via an
application programming interface (or API).
5.4.2
You acknowledge that a Product or Your content may be
displayed either by Us or third parties together with other content (such as
user- generated ratings and reviews). You agree that We are not responsible for
that other content.
5.4.3
Where We Syndicate a Product or Your content, You agree
and acknowledge that We will determine:
5.4.3.1
what part of a Product or Your content We will
Syndicate; and
5.4.3.2
the parties to which we will Syndicate.
5.5
Retention of
Content
5.5.1
When Your Order is completed or terminated or when a
Product is cancelled, we may retain or delete any content relating to the relevant
Product.
6
Payment
6.1
Your Obligation
to Pay Us
6.1.1
We may invoice You in various ways, including on Your
website account, depending on the Product. You must pay Us the amount invoiced
(in Australian dollars) that applies to any Product by the due date specified on
the invoice. This obligation survives completion or termination (for whatever
reason) of this Licence or cancellation of any Product.
6.1.2
The invoiced amount for a Product may include an
additional administration fee, management fee or non-refundable set up fee.
6.1.3
You must pay Us the invoiced amount by the due date
specified on the invoice for any Product You have authorised on behalf of
another person, if We have been unable to collect that invoiced amount from
that other person.
6.2
Failure to Pay Us
6.2.1
If You do not pay Us any amount You owe Us by the due
date or if any payment You have made to us is declined or otherwise not
received by Us because of insufficient funds in Your account, We may:
6.2.1.1
charge You interest on the unpaid amounts (at the
Reserve Bank of Australia’s Official cash rate at the time the amount was due,
plus 5%) from the date the amount became due until it is paid in full;
6.2.1.2
charge You any reasonable debt collection and legal
costs incurred as a result of You failing to pay Us the amounts You owe to Us;
6.2.1.3
charge You a late payment fee (as set out on the
invoice);
6.2.1.4
cancel any or all of the Products You purchase from Us;
and/or
6.2.1.5
charge You a dishonour fee, as notified to You by Us
from time to time.
a.
6.3
Credit Card Payments
6.3.1
If You pay any amount to Us by credit card, We may
charge You a payment processing fee (as allowable by law) in addition to the
amount invoiced on the day You make the relevant payment at the rate set out on
the invoice, which may vary from time to time.
6.4
Direct Debit Terms
6.4.1
Where You have requested a direct debit arrangement,
the result of any payment will be reflected against any account for the Product
within five business days.
6.4.2
You consent to any increase in the amount invoiced for
the supply or provision of Products or additional charges being included in any
periodic direct debit authority granted to Us by You.
6.5
GST on Payments
6.5.1
Unless specifically stated otherwise, all amounts or
fees in relation to the Products do not include any amount on account of GST.
6.5.3
Subject to first receiving a tax invoice from Us, You
must pay the GST amount when You are liable to pay Us the amount invoiced.
6.5.4
If either You or We must indemnify or reimburse each
other (“Payee”) for any loss or
expense incurred by the Payee, the required payment does not include any amount
which the Payee (or an entity that is in the same GST group as the Payee) is
entitled to claim as an input tax credit, but will be increased under clause 6.5.2
of this Licence if the payment is consideration for a taxable supply.
7
USE OF THE PRODUCTS
7.1
You are responsible at Your own expense for the
provision of all equipment, including computer hardware and telecommunication
connections, needed to use and access the Products.
7.2
You must comply with:
7.2.1
all laws and all reasonable directions from Us in
relation to the use of the Products; and
7.2.2
any other reasonable policies We may notify to You from
time to time in connection with the provision or use of, or access to the
Products.
7.3
If the Products include hosting Products that
incorporate material created by third parties, You must obtain, at Your own
expense, all necessary authorisations for Us to use or reproduce the material
to the extent necessary to provide the Products.
7.4
You must ensure any person who accesses the Products
does not use, or attempt to use, the Products:
7.4.1
to infringe the intellectual property rights of any
person, including use, sale, or transmission of software or other material
which infringes copyright;
7.4.2
to publish, distribute, or issue any information or
material which is illegal in the Commonwealth of Australia, obscene,
defamatory, threatening, or abusive, or which vilifies any group of persons;
7.4.3
for any purpose or activity which is illegal, or to
promote any such activity;
7.4.4
in a way that is inconsistent with the Order, or use
the Products to perform tasks or activities proscribed in the Order for that Product,
if any;
7.4.5
to provide links to another website which contains any
content which contravenes these conditions;
7.4.6
to interfere with or disrupt Us or Our business, other
internet users or other service providers, or their computers, software or
hardware, including by the propagation malicious software such as computer
worms, trojans, and viruses;
7.4.7
to access without authorisation any other computer
accessible via the Products; and
7.4.8
with any software that enables online anonymity,
misleading IP identification, provides a hidden service, or prevents Us from
complying with legal obligations.
7.5
You must take all reasonable steps to ensure that the Your
hardware, software, or network configuration (including IP addresses) are not
used to cause any security breach or attack on Our or Our other customers’
hardware, software or network configurations.
7.6
You must not run software that is intended, or has the
effect of, adversely impacting other customers, servers (physical or virtual),
or platforms within Our network, or interrupting or causing data collection
systems (including billing and rating systems) from correctly operating.
7.7
You are responsible for all access and activities
undertaken through your use of the Products. We are not responsible for any
damages whatsoever arising from the disclosure of Your passwords or a third party
gaining access to Your account due to insecure or weak password selection by You.
7.8
If You have reason to believe or be concerned that Your
Product has been compromised, You should notify Us immediately.
7.9
You must ensure that the information You provides to Us
is complete, accurate and up to date throughout the period that We provided the
Products to You. We rely on this information provided by You for notifications
and other communication. We are not liable for any damages or costs arising as
a consequence of Your details being out of date or otherwise incorrect due to Your
inaction or providing incorrect or incomplete information to Us.
8
Intellectual Property
8.2
You agree that We or Our subsidiary/outsource partner
own all intellectual property rights in:
8.2.1
the Product other than Your Inputs; and
8.2.2
in any new work created by modifying, amending,
adapting or otherwise dealing with any part of the Product (including Your
Inputs); and
8.2.3
in any data, results and reports We generate, and give
to You pursuant to this Licence.
8.3
Except in relation to Your Inputs, You must not (and
must not permit others to) reproduce the Product or any new work created by Us
using any part of the Product without Our prior written consent.
8.4
In addition to Our rights set out above, if You have a
hyperlinked site which is a Product, You agree that:
8.4.1
all intellectual property rights in the design,
functionality and ‘look and feel’ of Your Product (except to the extent that
Your Product contains Your business names, trade marks or other pre-existing
intellectual property) are owned and will be retained by Us or Our subsidiary/outsource
partner;
8.4.2
You give Us and Our related bodies corporate a perpetual,
royalty-free licence to use Your business names, trademarks and all other words
and symbols displayed on Your Product in any domain name that We create for
Your Product; and
8.4.3
We or Our subsidiary/outsource partner will own any
domain name registration that We or that subsidiary/outsource partner create
for Your Product, whether or not the URL for the domain name includes any of Your
business names or trademarks.
9
BACK-UPS AND REDUNDANCY
9.1
Unless explicitly stated in the Order for a Product, We
do not back up or otherwise replicate Your content or the data associated with
the Product.
9.2
Unless explicitly stated in the Order for a Product,
the Product is not provided on a redundant or high-availability basis. If a
platform from which the Product is provided fails, You may permanently lose
data.
9.4
You are solely responsible for performing or arranging any
backups necessary to protect You from data loss, even if backups are taken by Us
under clause 9.3.
10.1
We may from time to time, without need to issue notice
to You, suspend a Product, or disconnect or deny You access to the Product if:
10.1.1
You breach this Licence;
10.1.2
You provide Us with false, incomplete or out of date
information that in Our reasonable opinion results in an operational issue;
10.1.3
Your invoice is overdue or in arrears;
10.1.4
it is necessary to do so due to any technical failure
of, or for the upgrading or scheduled, preventative or remedial maintenance of Our
systems and software;
10.1.5
in Our reasonable opinion, it is required by law to do
so; or
10.1.6
in Our reasonable opinion, Your use of the Products
adversely affects Our system performance or the integrity of the Our network or
systems.
10.2
You must consult Us before undertaking any actions that
that do not fall inside Your usual day to day operation of the Product,
including the running of any load or penetrating testing. Failure to do so may
result in immediate suspension of the Product if the actions are seen as a
threat to Our network.
10.3
Products suspended under this clause 10
will not be reinstated until the breach is remedied, if capable of being
remedied, or the resulting invoice and any fee is paid in full. We reserve the
right to increase the reinstatement fee in the event that there are multiple
instances of suspension caused by Your actions.
10.4
We may permanently remove Your content (including data,
code, and applications) and backups if Your Product is suspended for more than
10 business days.
11
WARRANTIES AND LIMITATION OF LIABILITY
11.1
We do not give any express warranties and disclaim any
implied warranties in relation to the Products, including warranties that:
11.1.1
You will have continuous access to, or usage of, the
Products;
11.1.2
data stored by Us will not be lost or corrupted;
11.1.3
it will be possible to restore Your content from Our
back up media (if any); or
11.1.4
We will be able to prevent unauthorised persons
obtaining access to Your content.
11.2
Any term, condition, guarantee, or warranty which would
otherwise be implied into this Licence is excluded, to the degree permitted by
law.
11.3.1
the re-supply of the Product again; or
11.3.2
the payment of the reasonable costs of having the Product
supplied again.
11.4
You acknowledge that We do not and cannot control,
supervise, or edit any information or material accessed through the Products
and that We are not responsible for any content or information accessed via the
Products. You will indemnify and keep indemnified Us and Our directors,
managers and other employees, and agents and contractors (“Related Persons”) should We or Our Related Persons incur loss, damage,
fines, costs, or expenses as a result of Us being treated as the author or
publisher of any content or information stored, accessed, or published by You
using the Products.
11.5
You acknowledge that the Products are not intended or
authorised for use in circumstances where failsafe performance is required or
where failures or errors in the operation of the Products could lead to
significant financial detriment, loss or damage, or to personal harm, and You
agree not to use the Products in such circumstances. You will indemnify and
keep indemnified Us and Our Related Persons from and against any loss, damage
or liability resulting from the use of the Products contrary to this clause.
11.6
We will not be liable to You for any remote, indirect,
consequential, special or incidental loss or damage, including without
limitation, loss or damages resulting from loss of profit or loss of data or
loss of electronic materials resulting from the Products. You will indemnify Us
and Our Related Persons from and against any claim made against Us or any of Our
Related Persons by a third party as a result of the Product provided by Us to You.
11.7
Our aggregate liability to You for damages on any basis
associated with use of the Products will not exceed the sum paid by You to Us
in the month immediately preceding a claim by You.
11.9
While We will use due care and skill in relation to the
provision of the Product, neither we nor Our related bodies corporate warrant
or guarantee that:
11.9.1
the Product will be free from errors or omissions or
provided to You by or within a particular time; or
11.9.2
We will monitor Your content to ensure that it complies
with any law or Your obligations and warranties to Us under this Licence.
11.10
You agree that, apart from Your rights under clauses 11.3
and 11.8
of this Licence We, Our related bodies corporate and third party site or application
owners (and representatives) will not be liable for any loss, damage, claim or
demand incurred or made by any person (whether based in tort (including as
allowable by law, negligence), contract, statute or otherwise) arising out of
or in connection with this Licence, including from provision of the Product, or
failure to provide the Product, or from exercising any of Our rights in
relation to content.
11.11
Without limiting clause 11.3,
We are not responsible for any loss, damage, claim or demand arising in
connection with:
11.11.1
whether a third party publishes Your content;
11.11.2
how a third party displays Your content;
11.11.3
the way a third party determines the relevancy of Your
content on their site or application;
11.11.4
any changes a third party makes to Your content; and
11.11.5
any changes a third party does not make or delays
making to Your content.
11.12
Without limiting clause 11.3
of this Licence:
11.12.1
We have no liability for any failure or delay in
performing an obligation under this Licence due to matters outside Our
reasonable control or to the extent it is caused by You or results from Your
failure to take reasonable steps to avoid or minimise Your loss; and
11.12.2
We are not liable for loss or damage that was not
reasonably foreseeable.
11.13
You represent and warrant to Us that:
11.13.1
You or Your licencors own all intellectual property
rights in the content that You provide to Us or We collect from Your Inputs and
if You are not the owner of Your Inputs, You have obtained the consent of the
owner of Your Inputs to allow Us to collect content from Your Inputs and
display that content in the Product that You receive from Us;
11.13.2
You have the right to enter into this Licence and are
the owner of, or are legally authorised to use and/or sub-licence the use of,
the content in the Products that We supply to You;
11.13.3
You will not purport to enter this Licence as an agent
without authority from the principal;
11.13.4
all information You provide for the purposes of this
Licence is accurate, complete and current;
11.13.5
You will not and will not cause Us to breach this
Licence or any of Our privacy policies or third party terms;
11.13.6
nothing in Your content (whether supplied by You or
collected by Us) in the Products that We supply to You:
11.13.6.1
contravenes any laws, or incites or encourages breaches
of any law;
11.13.6.2
infringes the rights (including intellectual property
rights and moral rights) of any third parties;
11.13.6.3
breaches any of this Licence or Your obligations to any
third party (including confidentiality and privacy obligations) or third party
terms;
11.13.6.4
constitutes or may result in any consumer fraud,
product liability, and tort, breach of contract, injury, damage or harm of any
kind to any person or entity;
11.13.6.5
fails to meet the requirements set out in any Product
rules, policies and guidelines;
11.13.6.6
prejudices Us or Our related bodies corporate’s
reputation or brand;
11.13.6.7
is inappropriate, offensive, unsuitable for minors,
obscene, indecent, defamatory, discriminatory, false, misleading or deceptive
or likely to be misleading or deceptive, or promotes, incites or instructs in
matters of crime;
11.13.6.8
falsely represents (whether expressly or impliedly)
that You have an association or affiliation with the business, products, goods
or services advertised or referred to in Your content or falsely represents
that they are endorsed, sponsored, approved or associated with Us; or
11.13.6.9
identifies a person or can be used to identify a person
(including any copy, photos or other pictorial representations), unless You
have obtained that person’s authority (or, if they are a minor, the consent of
their parent or legal guardian);
11.13.7
You will monitor Your content to ensure You comply with
these warranties;
11.13.8
if You are required by law to restrict access to a
Product or any part of Your content to persons with particular characteristics,
You have taken all steps necessary to ensure that You comply with those
requirements;
11.13.9
You will not engage in spamming or similar marketing
activities in relation to any Product; and
11.13.10
You have all necessary rights to advertise, sell,
distribute and/or communicate to others the business, products, goods or
services advertised or otherwise referred to in Your content.
11.14
You agree to indemnify Us, Our related bodies corporate
and third party site or application owners (and representatives) against all
claims, demands, damages, costs, penalties, suits and liabilities of any nature
caused directly or indirectly by Your act or omission or any breach by You of
any provision of this Licence including the warranties given by You under
clause 11.13.
12.1.1
can be rectified, and fails to rectify the breach
within thirty days of notice being given by the party alleging the breach,
describing the breach and the action which must be taken to rectify it; or
12.1.2
cannot be rectified.
12.3
You may terminate this Licence by giving Us notice of
termination at least five business days before the end of any billing period
for which You have paid for provision of the Products (“Billing Period”), such termination to take effect at the end of
that Billing Period.
12.4
If this Licence is terminated by Us under clause 12.1
or 12.2,
all outstanding amounts to be invoiced will become immediately payable by You to
Us upon the giving of notice of termination.
12.5
We are not required to refund any prepaid monies,
unless required by law.
12.6
We may erase, in a timely fashion upon termination of a
Product, all data (including software, code, and backups) relating to that Product
from Our systems unless We and You have agreed in writing the data is to be
preserved for an agreed period of time. All costs associated with the storage
of such data will be borne by You.
12.7
We may terminate this Licence (in whole or in part) or
suspend or cancel one or all of Products We supply to You, and You must pay any
cancellation fee invoiced for the affected Products, immediately:
12.7.1
if You breach the terms of this Licence; or
12.7.2
if You:
12.7.2.1
are unable to pay Your debts as they fall due, You make
or commence negotiations with a view to making a general rescheduling of Your
indebtedness, a general assignment, scheme of arrangement or composition with
Your creditors;
12.7.2.2
take any corporate action, or any steps are taken or
legal proceedings are started, for:
a.
Your winding up, dissolution, liquidation, or
re-organisation, other than to reconstruct or amalgamate while solvent; or
b.
the appointment of a controller, receiver,
administrator, official manager, trustee, or other similar officer, of You or of
any of Your revenue or assets; or
12.7.2.3
seek or are granted protection from Your creditors under
any applicable legislation,
12.7.3
if We become unable to perform Our obligations under
this Licence due to a force majeure event affecting either Us or Our nominees;
or
12.7.4
but with as much warning as We reasonably can, if:
12.7.4.1
We are required by law to do so;
12.7.4.2
We believe on reasonable grounds that providing You
with the Product is illegal or may become illegal;
12.7.4.3
We reasonably believe that there is a real risk of loss
or damage to Us or another if We do not terminate this Licence or suspend or
cancel a Product (including credit risk resulting from You not paying any fees
owed to Us on time); or
12.7.4.4
a third party directs Us to do so.
12.8
We may terminate this Licence (in whole or in part) or suspend
or cancel one or all of the Products by 30 days’ written notice to You without
cause (and We will refund any amount paid by You to Us on a pro-rata basis if
applicable).
12.9
After termination or cancellation of this Licence:
12.9.1
We will have no obligation to refund any component of
the paid amount (together with any GST paid), which has already been paid prior
to the termination (other than as set out in this Licence);
12.9.2
You will not be required to pay further components of
the invoiced amounts to Us, other than payments which were due before
termination, and any cancellation fee;
12.9.3
We may remove the Product We supplied to You and Your content;
and
12.9.4
if Product We supplied to You has a campaign spend and
at the date of cancellation or termination the campaign spend has not been
spent, We will continue to provide the unused campaign spend until that spend
is reached.
12.10
We will seek to ensure that Your campaign spend is
spent, however we are not liable if any campaign spend is not spent, nor are We
liable to refund any unspent campaign spend.
13
SUB-CONTRACTS
13.1
We may sub-contract the whole or any part of the
performance of its obligations under this Licence without obtaining Your
consent.
14.2
This standard Licence may only otherwise be modified by
a written agreement between Us and You.
14.3
We may change any term in this Licence or any Product
at any time.
15
NOTICE
15.1
Any notice issued by Us or You pursuant to this Licence
shall be in writing. Notices may be delivered by email to the email address We
have on file for You.
15.2
Notice will be treated as given in the case of email,
on receipt by the sender of notification that the email has been received by
the recipient’s email server, but if the delivery or receipt is not on a
business day or is after 5:00 pm on a business day in the place where it is
received, the notice is taken to be received at 9:00 am on the next business
day.
15.3
It is Your responsibility to notify Us of any changes
to Your contact details.
16
Confidentiality
16.1
All information of a confidential nature disclosed by
Us to You under this Licence is and will remain confidential and must not be
disclosed by You (or by Your employees, officers, advisers or contractors) to
any third party, except for the purposes of this Licence. This does not apply
to the extent that any such information:
16.1.1
is already known by You, or is in Your possession;
16.1.2
has been lawfully obtained by You from another source;
16.1.3
is or becomes publicly known through no wrongful act by
You; or
16.1.4
must be disclosed pursuant to any obligation You have
at law.
17
Privacy
17.1
Our commitment to privacy is set out in Our privacy collection
statement (“Privacy Collection Statement”)
[https://Orderz.com.au/privacy].
17.2
You acknowledge that You have read and understood the
Privacy Collection Statement and consent to the collection, use and disclosure
of Personal Information (as defined in the Privacy Collection Statement) on the
terms and for the purposes set out in the Privacy Collection Statement.
17.3
Except for tracking
tools used in relation to performance based advertising Products and authorised
by Us, Your content must not include any mechanism that enables the collection
of Personal Information.
17.4
You acknowledge that
We may use Your content in any electronic mapping or navigation Product that
includes Our mapping data, and Our Syndication activities to allow users to
search for Your address or name using only Your phone number or address (as the
case may be). If You do not wish Your content to be used for this purpose, You
can opt-out sending an email to admin@cybernetworks.com.au.
17.5
We may communicate
with You via any method we determine including email, SMS message or fax, and
those communications may not include an unsubscribe facility, unless You tell Us
not to. If You do not provide Us with an email address for this purpose, We may
send emails to You using any email address that appears in any Product that We
supply to You, whether this email address is from content You supply to Us or
that We collect for You.
17.6
When We communicate
with You via email:
17.6.1
You are solely responsible for ensuring that Your
contact details are current (including email address), Your email service is
operational and that You check Your emails regularly;
17.6.2
You must promptly notify Us of any changes to Your
contact details;
17.6.3
You are deemed to have received the email We have sent
You and We are not obliged to take any further action to confirm that You have
received, opened or read the email, unless You promptly notify Us and
demonstrate that the email was not delivered to Your email address; and
17.6.4
if We receive an automated email non-delivery
notification indicating You have not received the email that We have sent You,
We will use reasonable endeavours to attempt to contact You using other contact
details We have for You, but We do not guarantee that We will be able to
contact You.
18
PPSA
18.1
Defined terms in this
clause have the same meaning as given to them in the PPSA.
18.1.1
The parties acknowledge that this Licence constitutes a
Security Agreement and gives rise to a Purchase Money Security Interest (“PMSI”) in favour of Us over the Products
supplied or to be supplied to You, as Grantor, pursuant to this Licence.
18.1.2
You acknowledge that the We, as Secured Party, are
entitled to register Our interest in the Products supplied or to be supplied to
You, as Grantor, under this Licence on the PPSA Register as Collateral.
18.1.3
You waive Your right to receive notification of or a
copy of any Verification Statement confirming registration of a Financing
Statement or a Financing Change Statement relating to a Security Interest
granted by You, as Grantor, to Us.
18.1.4
You agree to indemnify Us on demand for all costs and
expenses, including legal costs and expenses on a solicitor/client basis,
associated with the:
18.1.4.1
registration or amendment or discharge of any Financing
Statement registered by or on behalf of Us; and
18.1.4.2
enforcement or attempted enforcement of any Security
Interest granted to Us by you.
18.2
You agree:
18.2.1
that, to the extent permitted at law, nothing in
sections 130 to 143 of the PPSA will apply to this Licence or the Security
under this Licence;
18.2.2
to waive Your right to do any of the following under the
PPSA:
18.2.2.1
receive notice of removal of an Accession under section
95;
18.2.2.2
receive notice of an intention to seize Collateral
under section 123;
18.2.2.3
receive notice of disposal of Collateral under section
130;
18.2.2.4
receive a Statement of Account if there is no disposal
under section 130(4);
18.2.2.5
receive notice of retention of Collateral under section
135;
18.2.2.6
redeem the Collateral under section 142;
18.2.2.7
reinstate the Security Agreement under section 143;
18.2.2.8
object to the purchase of the Collateral by the Secured
Party under section 129; and
18.2.2.9
receive a Statement of Account under section 132(3)(d)
following a disposal showing the amounts paid to other Secured Parties and
whether Security Interests held by other Secured Parties have been discharged.
19
GENERAL
19.1
This Licence (and the validity and enforceability of this
Licence) are governed by and to be interpreted in accordance with the law of
the State of South Australia in the Commonwealth of Australia. The parties
submit to the non-exclusive jurisdiction of the courts of the State of South
Australia, and the Federal Court of the Commonwealth of Australia. Any
application to the Federal Court of the Commonwealth of Australia must be
instituted in the South Australian registry of that Court. The parties
irrevocably waive any right they may have to object to those courts exercising
jurisdiction on the ground that the court is not a convenient forum.
19.2
We may use any third parties (locally or overseas) We
consider fit to provide any part or all of a Product, without informing You or
obtaining Your consent.
19.3
If any provision of this Licence is illegal,
unenforceable or void in any jurisdiction, then, with respect to that
jurisdiction only:
19.3.1
that provision shall be read down if possible so that
it is no longer illegal, unenforceable or void in that jurisdiction; and
19.3.2
if it is not possible to read down that provision, it
shall be severed from the remaining provisions of this Licence, with respect to
that jurisdiction only.
19.4
No act or omission by a party shall constitute a waiver
of any of its rights under this Licence, other than an express waiver of those
rights in writing signed by the party to be bound.
19.5
We may assign or novate Our rights and obligations
under this Licence at any time. You may not novate or assign Your interest
under this Licence without Our express written authority.
19.6
This Licence supersedes all prior agreements and
understandings between the parties as it relates to the Products provided under
this Licence, and constitutes the entire agreement between the parties relating
to the subject matter of this Licence.