Qwilr is a web service that allows users to create online documents. In general, Qwilr wants to have as many happy Customers as possible. It would be remiss of us if we were to change pricing, features or services in a way that made Customers unhappy. However, as a Software as a Service (SaaS) product, Qwilr will change over time (for the better, of course).
In these Terms of Service, the “Important Terms” mostly deal with using Qwilr, and the “General Conditions” set out the legal basis on which Qwilr is provided. You must accept these terms to use Qwilr.
The following terms are used regularly throughout these Terms of Service and have a particular meaning:
- Account means a registered User account within Qwilr.
- Agreement means the agreement formed in accordance with these Terms of Service between the Company and the User.
- Australian Consumer Law means the laws relating to the sale of goods or services to consumers pursuant to the Competition and Consumer Act 2010 (Cth) as apply in each State or Territory of Australia.
Company means Qwilr Pty Ltd ABN 23 168 533 793.
- Content means all information, data, text, software, music, sound, photographs, graphics, video and other matter of any kind accessible via the Site.
- Customer means the person or entity that holds a Customer Account and is responsible for paying the Subscription Fee for a Paid User.
- Document means a document with the functionality and appearance of a webpage, created using the Services and accessible via the Site.
- Fee means a fee payable to the Company for access to or use of Qwilr, or the provision of related services.
- Free User means a user that:
- Registers a Free User Account; and
- Is not required by the Company to pay a fee to access the templates, tools or features of the Services associated with a Free User Account.
- Paid User means a person that holds a Paid User Account, and for which a fee is payable to the Company.
- Qwilr means the Company’s suite of tools, applications and services, known together as “Qwilr”, licensed to the Customer under this Agreement.
- Services has the meaning described in item C of the Important Terms.
- Site means the website found at qwilr.com.
- Subscription Fee means the Fee payable to access the templates, tools and features associated with a particular type of Paid User Account, as described on the Site.
- Third Party Services means any of the Customer’s third party service accounts connected to and/or integrated with Qwilr.
- User is the collective term used to refer to a Free User, a Customer, a Paid User or Visitor, as the use of the term in its context implies.
- Visitor means a User that:
- Visits the Site or views a Document; and
- Is neither a Free User nor a Paid User.
- Free Users (Item AC)
- Customers (Item AD)
- Paid Users (Item AE)
- Visitors (Items AF and AG)
- Qwilr allows Users to:
- Register an Account;
- Create documents accessible via the internet with the functionality and appearance of a webpage (Documents);
- Use templates to create Documents;
- Customise Documents using the tools and features of the Site;
- Track analytics of Documents;
- Take advantage of such other templates, tools and features made available via the Site from time-to-time for a particular Account type; and
- View and interact with Documents created by other Users.
- Together referred to as the services (Services).
The Site is available through the URL qwilr.com (or other domain as used by the Company from time-to-time).
In addition to any other express or implied consents, by using Qwilr the User accepts and agrees to the terms of:
- This Agreement; and
To access the Services, each User must register with Qwilr (as a Free User, Customer or as a Paid User, as the case may be) with a valid email address.
Each User uses Qwilr at its own risk. The Company’s liability to a User is limited to the provision of the Services, and the Company accepts no responsibility for:
- The Content a User includes in a Document;
- The purpose a User creates a Document for;
- A Visitor’s access to or use of a Document.
The Company provides instructional documentation on the Site and within Qwilr to assist Users with Qwilr. This documentation shall be updated from time-to-time without notice.
Qwilr is accessible to registered Users via login from the Site.
- Contains the Content that the Paid User or Free User enters into Qwilr in order to create a Document;
- May connect the Paid User or Free User’s Account with Third Party Services; and
- Provides each Customer, Paid User or Free User with Account management tools.
Each Document is deployed from the Site.
Forming Legal Agreements
Despite the functionality of the Documents, the Company does not warrant that Qwilr can be used to create binding legal agreements, and the User must seek its own independent legal advice on whether it can create a binding legal agreement using Qwilr.
The Company accepts no responsibility for a User’s use of Qwilr to create (or attempt to create) a binding legal agreement.
If the User uses Qwilr for the purpose of creating a legally binding agreement the User hereby indemnifies and will hold the Company harmless for any claim that results from the Document that the User created.
Third Party Services
Qwilr connects to and integrates with many Third Party Services.
Qwilr cannot warrant the ongoing availability or efficacy of any Third Party Services.
The User authorises the Company to access the Customer Data in any Third Party Services enabled by the User.
The User agrees and acknowledges that:
- Qwilr has third party dependencies which may affect its availability, including (without limitation) infrastructure providers; and
- The Company has no means of controlling the availability of such dependencies, although each of those services has a robust operating standard suitable for commercial dependency.
The Company provides user support for Qwilr via a dedicated support email and other channels employed from time to time at Qwilr’s absolute discretion.
The Company shall endeavour to respond to all support requests within 24 hours.
The Company reserves the right to require the payment of reasonable Fees for non-standard support requests prior to the provision of such support.
The User understands and agrees that all information, data, text, software, music, sound, photographs, graphics, video, messages and other matter of any kind accessible via the Site (Content) is subject to this Agreement.
Content is the sole responsibility of the User that made the content available via the Site by uploading, publishing it in a Document or otherwise providing it.
A User may not modify, rent, lease, loan, sell, distribute or create derivative works based on any of the Content (either in whole or in part) unless:
- The User is the owner of the Content; or
- The User has been authorised to do so by the owners of that Content.
- The User understands that it uses the Site at its own risk (including relying on any information contained in a Document) and agree that by using the Site you may be exposed to Content that you may find offensive, indecent or objectionable.
To the extent permitted by law, under no circumstances will the Company be liable in any way for any Content, including but not limited to:
- Errors or omissions in any Content;
- Editing, restricting or removing Content; or
Loss or damage of any kind incurred as a result of the use of
- any Content.
The User agrees that Content that it makes available via the Site may be removed or altered by the Company, subject to applicable provisions of this Agreement and any legislation including, without limitation, privacy legislation.
The User agrees that it will not upload or otherwise post, insert or provide any Content which:
- Is defamatory, fraudulent, unlawful, threatening, intimidating, harassing, harmful, hateful, abusive, tortious, vulgar, obscene, invasive of another’s privacy, sexist, racist, homophobic, violent, discriminatory or degrading;
- Infringes the intellectual or other proprietary interests of third parties;
- Attempts to solicit personal information from another user, except in a way that is complaint with the law;
- Impersonates another person or entity;
- Contains sexually explicit language or images, advertises or promotes the sale of products or services such as firearms, tobacco or alcohol, adult products and services and any other products or services the Company considers to be inappropriate;
- Contains spam, chain letters, pyramid and other such selling and marketing schemes, computer viruses, computer code, files or programs or other harmful components that are designed to interrupt, destroy, change or limit the functionality of the Site or any other computer software, hardware or other electronic equipment, information which in any way impinges on another user’s use or enjoyment of the Site or otherwise breaches or encourages other users to breach of this Agreement;
- Violates any law, statute or regulation;
- Forges information to disguise the origin of any Content; or
Encourages or incites any other person to engage in any of the above behaviour.
Paying for Qwilr
The primary Fee to use Qwilr shall be the Subscription Fee, which is payable in advance (after any free trial period has expired) by the Customer for each Paid User Account (or a batch of Paid User Accounts, as applicable).
The Subscription Fee applies to each Paid User of Qwilr (or a batch of Paid User Accounts, as applicable) associated with a Customer Account in accordance with the pricing plans described on the Site.
The Customer agrees to pay all Fees monthly in advance by credit card through Qwilr. Without provision of a valid credit card, the Company reserves the right to refuse the Customer access to Qwilr.
The Company reserves the right to introduce or change any Fees from time-to-time by giving the User no less than 14 days’ written notice. Any new or changed Fees will apply to the next billing period after the Customer has been given such notice.
If a Customer does not accept a change to any Fees, then it can simply terminate its Account.
All Fees are quoted in US dollars.
For Customers in Australia, GST is applicable to any Fees charged by the Company to the User. Unless expressed otherwise, all Fees shall be deemed inclusive of GST.
No refunds of Fees are offered other than as required by law or at Qwilr’s absolute discretion.
If the Customer does not pay the full Fees as required, the Company may suspend all User access to Qwilr for that Account.
If Fees are not paid within 28 days of becoming overdue, the Company may terminate the Customer’s Account in Qwilr without notice and end this Agreement.
The User agrees that the Company shall not be responsible or liable in any way for:
- Interruptions to the availability of Qwilr in the event of (a);
- Loss of Content in the event of (b).
Termination & Suspension
Either party may end this Agreement at any time by written notice in accordance with these Terms.
The Company may suspend the Customer’s account (and the accounts of any of its Paid Users) should any Fees be outstanding to the Company at any time.
The Customer agrees that the Company shall not be liable in any way for any valid termination or suspension of the Customer’s access to Qwilr.
Free User Terms
The Free User agrees and accepts that:
- The Free User may only use the Services associated with a Free User account as determined by the Company in its sole discretion. The Company may change the templates, tools and features associated with a Free User Account at any time without notice.
- The Free User must upgrade to a Paid User account in order to access the features associated with a Paid User Account type.
- The Free User indemnifies the Company, and will hold the Company harmless for any claim that arises from the Content of any Document the Free User creates.
The Customer agrees and accepts that:
- The Customer is responsible and liable for each Paid User that it registers an Account for and must ensure that:
- Each Paid User complies with the terms of Agreement;
- Only one person uses each Paid User Account that the Customer registers; and
- The Customer pays the Subscription Fee for each Paid user when it is due.
- The Company may change the Services associated with the type of Paid User Account subscribed for by the Customer by providing not less than 30 days written notice to the Customer prior to the change taking effect. If the Customer is not satisfied with the proposed change to the Services associated with their account type, the Customer may terminate its subscription for each Paid User affected by the change.
- The Company may add and remove a Document template at any time without notice without affecting any pre-existing Documents created by the Customer.
- The Customer indemnifies the Company, and will hold the Company harmless for any claim that arises from the Content of any Document that a Paid User registered by the Customer creates.
Paid User Terms
This item I applies to all Paid Users that are not Customers. In addition to complying with the Customer Terms, each Paid User agrees and accepts that:
- The Paid User may only use the Services associated with the type of Paid User account subscribed for by the Customer.
- A Paid User’s access to, and use of Qwilr is contingent on the relevant Customer paying the Subscription Fee for the Paid User’s Account.
- The Paid User must not allow any person to access their Account other than the person whom the Customer registered the Account for.
- The Paid User indemnifies the Company, and will hold the Company harmless for any claim that arises from the Content of any Document the Paid User creates.
Each Visitor agrees and accepts that:
- The Visitor accesses the Site and views Documents at its own risk.
- The Company holds no duty of care to a Visitor to ensure ongoing access to the Site.
- The Company makes no warranty or representation as to the quality, safety or fitness for purpose of any product or service described in a Document.
- The Company takes no responsibility for any harm or loss suffered by a Visitor as a result of visiting the Site, including accessing a Document or relying on information contained in a Document.
If a Visitor suffers loss or harm as a result of visiting the Site, the Visitor agrees that:
- The Visitor shall have no recourse against the Company; and
- The relevant User that created the Document remains responsible for any such loss or harm under Australian Consumer Law.
- For the avoidance of doubt a Visitor shall have no claim against the Company for its use of, or reliance on the Contents of a Document. Any claim that a Visitor may have arising from its access to, or reliance on a Document shall be between the Visitor and the User that created the Document, and not involve the Company under any circumstances.
The following definitions apply in this document:
ABN means Australian Business Number.
ACN means Australian Company Number.
Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Melbourne, Australia.
Commencement Date means the date set out in this Agreement.
Confidential Information means all information (whether or not it is described as confidential) in any form or medium concerning any past, present or future business, operations or affairs of either party, including, without limitation:
- all technical or non-technical data, formulae, patterns, programs, devices, methods, techniques, plans, drawings, models and processes, source and object code, software and computer records;
- all business and marketing plans and projections, details of agreements and arrangements with third parties, and User and supplier information and lists;
- all financial information, pricing schedules and structures, product margins, remuneration details and investment outlays;
- all information concerning any employee, User, contractor, supplier or agent of the relevant party;
the party’s policies and procedures; and
- all information contained in this document,
but excludes information that the other party can establish:
- is known by or is in the other party’s possession or control other than through a breach of this document and is not subject to any obligation of confidence; or
- is in the public domain other than by a breach of this document or any obligations of confidence.
Corporations Act means the Corporations Act 2001 (Cth).
Customer Data means all information, Content, data and other such materials that the User enters into or uploads to Qwilr.
Force Majeure means an event or cause beyond the reasonable control of the party claiming force majeure. It includes each of the following, to the extent it is beyond the reasonable control of that party:
- Act of God, lightning, storm, flood, fire, earthquake or explosion cyclone, tidal wave, landslide, adverse weather conditions;
- Act of public enemy, war (declared or undeclared), terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic;
- The effect of any change in applicable laws, orders, rules or regulations of any government or other competent authority; and
- Embargo, inability to obtain necessary materials, equipment or facilities, or power or water shortage.
General Conditions means the terms and conditions set out in the section of this Agreement entitled “General Conditions”.
GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Intellectual Property means all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property.
Intellectual Property Rights means, for the duration of the rights in any part of the world, any Moral Rights, industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property, applications for the registration of any Intellectual Property and any improvements, enhancements or modifications to any Intellectual Property registrations.
Important Terms means this Agreement’s details and variables set out in the section of this Agreement entitled “Important Terms”.
Moral Rights means:
- Moral rights pursuant to the Copyright Act 1968 (Cth);
- Or any rights analogous to the rights set out in Article 6bis of the Berne Convention for Protection of Literary and Artistic Works 1886 (as amended from time to time).
Privacy Standards means the Privacy Act 1989 (Cth) and the European Union’s General Data Protection Regulation, including Directive 95/46/EC and the Regulation (EU) 2016/679.
Special Conditions means the terms and conditions set out in the section of this agreement entitled “Special Conditions”.
Tax Invoice has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Headings are only for convenience and do not affect interpretation. The following rules apply unless the context requires otherwise:
The singular includes the plural and the opposite also applies.
If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.
- A reference to a clause refers to clauses in this Agreement.
- A reference to legislation is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it.
- Mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included.
- A reference to a party to this Agreement or another agreement or document includes that party’s successors and permitted substitutes and assigns (and, where applicable, the party’s legal personal representatives).
- A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.
- A reference to information is to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets.
- A reference to dollars or $ is to an amount in US currency.
Application of this Agreement
This Agreement applies to use of and access to Qwilr.
Where the User does not accept or can no longer comply with the terms and conditions of this Agreement, the User must immediately cease using Qwilr.
This Agreement may be updated by the Company at its absolute discretion from time-to-time, and unless stated otherwise by the Company in writing, such updates shall come into effect for use of Qwilr at the commencement of the User’s next billing period.
The User agrees and accepts that Qwilr is:
- Hosted by the Company using a secure third-party hosting service and shall only be installed, accessed and maintained by the Company;
- Accessed by the User using the internet or other connection to the servers hosting the Qwilr and is not available ‘locally’ from the User’s systems; and
- Managed and supported exclusively by the Company from the Company’s third party hosting service and that no ‘back-end’ access to Qwilr is available to the User unless expressly agreed in writing.
As a hosted and managed service, the Company reserves the right to upgrade, maintain, tune, backup, amend, add or remove features, redesign, improve or otherwise alter Qwilr.
The Company shall not exercise its rights under clause 3.2 in a manner that would intentionally cause the User to lose access to Customer Data or fundamentally decrease the utility of Qwilr to the User, other than in accordance with the terms of this Agreement.
By accepting the terms and conditions of this Agreement, the User is granted a limited, non-exclusive and revocable license to access and use Qwilr for the duration of this Agreement, in accordance with the terms and conditions of this Agreement.
The Company may revoke or suspend the User’s license(s) in its absolute discretion for any reason that it sees fit, including for breach of the terms and conditions in this Agreement by the User or any of its users. The Company will ordinarily advise the User of any suspension or revocation however it is under no obligation to do so.
The User agrees that it shall only use Qwilr for legal purposes and shall not use it to engage any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by the Company in its discretion.
The Customer shall authorise users to access Qwilr in its absolute discretion. The Customer agrees that additional Fees may be payable for each additional user it authorises.
The Company accepts no liability for access to User Content by users authorised by the User or using login details of users authorised by the User.
The User is solely responsible for the security of its username and password for access to Qwilr.
The User is responsible for ensuring that users comply with this Agreement in full and are liable for any breach of them.
The Company obtains no right, title or interest in Customer Data including any Intellectual Property found within it.
The Company accepts no liability for the content of Customer Data.
The User is responsible for the accuracy, quality and legality of Customer Data and the User’s acquisition of it, and the users that create, access and/or use Customer Data.
Despite clause 7.1, the Company shall be authorised to permanently delete Customer Data where outstanding Fees remain unpaid in accordance the Important Terms.
The Company shall not access, use, modify or otherwise deal with Customer Data except:
- where required by compulsion of law;
- in accordance with a provision of this Agreement; or
- upon the User’s authority (such as to provide support for Qwilr).
The Company makes no warranty as to the suitability of Qwilr in regards to the User’s privacy obligations at law or contract, and it is the User’s responsibility to determine whether Qwilr is appropriate for the User’s circumstances.
Invoicing & Payments
The terms of payment set out in the Important Terms shall apply.
Should the User dispute a Tax Invoice, the User must notify the Company of the disputed item within 5 Business Days of the date of the Tax Invoice. The User must pay the amount of the Tax Invoice not in dispute within the prescribed payment period.
Overdue Tax Invoices shall accrue interest at the rate of 1.5% per month, or in default, the maximum rate of penalty interest prescribed under law.
The Company takes the security of Qwilr and the privacy of its Users very seriously. The User agrees that the User shall not do anything to prejudice the security or privacy of the Company’s systems or the information on them.
Transmission. The Company shall do all things reasonable to ensure that the transmission of data occurs according to accepted industry standards. It is up to the User to ensure that any transmission standards meet the User’s operating and legal requirements.
Storage. The Company may limit the amount of data that the User stores in Qwilr, and shall advise the User of such. Data that is stored with the Company shall be stored according to accepted industry standards.
Backup. The Company shall perform backups of its entire systems in as reasonable manner at such times and intervals as is reasonable for its business purposes. The Company does not warrant that it is able to backup or recover specific Customer Data from any period of time unless so stated in writing by the Company.
Solution. By accepting the terms of this Agreement the User agrees that the Company shall provide access to Qwilr to the best of its abilities, however it accepts no responsibility for ongoing access to Qwilr.
Trademarks. The Company has moral and registered rights in its trademarks and the User shall not copy, alter, use or otherwise deal in the marks without the prior written consent of the Company.
Proprietary Information. Qwilr may use software and other proprietary systems and Intellectual Property for which the Company has appropriate authority to use, and the User agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally. The User warrants that it shall not infringe on any third-party rights through the use of Qwilr.
Solution. The User agrees and accepts that Qwilr is the Intellectual Property of the Company and the User further warrants that by using Qwilr the User will not:
- Copy Qwilr or the services that it provides for the User’s own commercial purposes; and
- Directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in Qwilr or any documentation associated with it.
Content. All content (with the exception of Customer Data) remains the Intellectual Property of the Company, including (without limitation) any source code, ideas, enhancements, feature requests, suggestions or other information provided by the User or any other party with respect to Qwilr.
The information and classes of information set out in the Particulars are Confidential Information for the purposes of this Agreement. In default, information relating to the business operations, personal information and other information that should be confidential is Confidential Information.
Each party acknowledges and agrees that:
- The Confidential Information is secret, confidential and valuable to the disclosing party (Discloser);
- It owes an obligation of confidence to the Discloser concerning the Confidential Information;
- It must not disclose the Confidential Information to a third party except as permitted in this Agreement;
- All Intellectual Property rights remain vested in the Discloser but disclosure of Confidential Information does not in any way transfer or assign any rights or interests in the Intellectual Property to the receiving party; and
- Any breach or threatened breach by the receiving party of an obligation under this Agreement may cause the Discloser immediate and irreparable harm for which damages alone may not be an adequate remedy. Consequently the Discloser has the right, in addition to other remedies available at law or in equity, to seek injunctive relief against the receiving party (and its agents, assigns, employees, officers and directors, personally) or to compel specific performance of this clause.
A party must notify the Discloser in writing, giving full details known to it immediately, when it becomes aware of:
- Any actual, suspected, likely or threatened breach by it of any obligations it has in relation to the Confidential Information.
- Any actual, suspected, likely or threatened breach by any person of any obligation in relation to the Confidential Information; or
- Any actual, suspected, likely or threatened theft, loss, damage, or unauthorised access, use or disclosure of or to any Confidential Information.
- The receiving party must promptly take all steps that the Discloser may reasonably require and must co-operate with any investigation, litigation or other action of the Discloser or of a related body corporate if there is:
- Any actual, suspected, likely or threatened breach of a term of this Agreement; or
- Any theft, loss, damage or unauthorised access, use or disclosure of or to any Confidential Information that is or was in its possession or control.
Liability & Indemnity
The User agrees that it uses Qwilr at its own risk.
The User acknowledges that the Company is not responsible for the conduct or activities of any user and that the Company is not liable for such under any circumstances.
The User agrees to indemnify the Company for any loss, damage, cost or expense that the Company may suffer or incur as a result of or in connection with the User’s use of Qwilr or conduct in connection with Qwilr, including any breach by the User of this Agreement.
In no circumstances will the Company be liable for any direct, incidental, consequential or indirect damages, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the User’s access to, or use of, or inability to use Qwilr, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not the Company knew or should have known of the possibility of such damage, to business interruption of any type, whether in tort, contract or otherwise.
Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted or modified. Apart from those that cannot be excluded, the Company and the Company’s related entities exclude all conditions and warranties that may be implied by law. To the extent permitted by law, the Company’s liability for breach of any implied warranty or condition that cannot be excluded is restricted, at the Company’s option to:
- The re-supply of services or payment of the cost of re-supply of services; or
- The replacement or repair of goods or payment of the cost of replacement or repair.
Where a party is in breach of this Agreement, the other party may issue a written notice (Breach Notice) requiring the party in breach that must set out:
- The nature of the breach;
- The provisions of the Agreement that are alleged to have been breached;
- A reasonable timeframe to remedy the breach in no less than 10 Business Days; and
- The action required to remedy the breach.
Where a party issues a compliant Breach Notice in accordance with clause 15.1, the receiving party shall be required to respond and/or remedy the breach as so set out in the Breach Notice. Failure to respond in writing setting out:
- The steps taken to remedy the breach; or
- Why the party believes it is not in breach as put forward in the Breach Notice,
- Shall not in itself confirm the alleged breach but shall be in itself a breach of this Agreement.
Failure to remedy a breach set out in a Breach Notice shall be a material breach of this Agreement (Material Breach).
Breach Where a party is in Material Breach of this Agreement, the other party may terminate this Agreement by giving written notice of termination, which shall become effective 5 Business Days after the date of the notice.
Insolvency Either party may terminate this Agreement immediately by notice, if either party:
- Stops or suspends or threatens to stop or suspend payment of all or a class of its debts;
- Is insolvent within the meaning of section 95A of the Corporations Act;
- Fails to comply with a statutory demand (within the meaning of section 459F(1) of the Corporations Act) unless:
- The debt to which the statutory demand relates is discharged within 15 Business Days of the date of the failure; or
- The party demonstrates to the satisfaction of the other party (acting reasonably) that it is able to pay all its debts as and when they become due and payable;
- Has an administrator appointed in respect of it;
- Has a controller within the meaning of section 9 of the Corporations Act or similar officer appointed to the whole or a substantial part of its assets or undertaking and that controller or similar officer is not removed within 15 Business Days of the appointment;
- Has an order made or a resolution passed for its winding up or dissolution or it enters into an arrangement, compromise or composition with or assignment for the benefit of its creditors or a class of them;
- Has any security enforced over, or a distress, execution or other similar process levied or served against, the whole or a substantial part of its assets or undertaking; or
- Is subject to any event, which, under the law of any relevant jurisdiction, has an analogous or equivalent effect to any of the events listed above.
Expiry or termination of this Agreement is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of this Agreement up to the date of expiry or termination.
The rights and obligations under the relevant provisions of clauses 6, 7, 8, 9, 12, 13, 14, 15, 16, 17 and 18 survive termination of this Agreement.
If a party is prevented in whole or in part from carrying out its obligations under this Agreement as a result of Force Majeure, it will promptly notify the other party accordingly. The notice must:
- Specify the obligations and the extent to which it cannot perform those obligations;
- Fully describe the event of Force Majeure;
- Estimate the time during which the Force Majeure will continue; and
- Specify the measures proposed to be adapted to remedy or abate the Force Majeure.
Following a notice of Force Majeure in accordance with clause 17.1 and while the Force Majeure continues, the obligations which cannot be performed because of the Force Majeure will be suspended, other than obligations to pay money that is due and payable.
The party that is prevented from carrying out its obligations under this Agreement as a result of Force Majeure must remedy the Force Majeure to the extent reasonably practicable and resume performance of its obligations as soon as reasonably possible.
The party that is prevented from carrying out its obligations under this Agreement as a result of Force Majeure must take all action reasonably practicable to mitigate any loss suffered by the other party as a result of the party’s failure to carry out its obligations under this Agreement.
The term of this Agreement will not be extended by the period of Force Majeure.
Electronic Communication and Assignment
The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.
The User can direct notices, enquiries, and complaints and so forth to the Company as set out in this Agreement. The Company will notify the User of a change of details from time-to-time.
The Company will send the User notices and other correspondence to the details that the User submits to the Company, or that the User notifies the Company of from time-to-time. It is the User’s responsibility to update its contact details as they change.
A consent, notice or communication under this Agreement is effective if it is sent as an electronic communication unless required to be physically delivered under law.
Notices must be sent to a party’s most recent known contact details.
The User may not assign or otherwise create an interest in this Agreement without the written consent of the Company.
The Company may assign or otherwise create an interest in its rights under this Agreement by giving written notice to the User.
Prevalence Each party to this Agreement agrees to the clauses in the Important Terms and the Special Conditions. The Important Terms, any Special Conditions and the General Conditions form a single legal agreement. To the extent that the Important Terms or the Special Conditions are inconsistent with the General Conditions, the terms of the Important Terms will prevail. To the extent that the Special Conditions are inconsistent with the Important Terms, the Special Conditions will prevail.
Disclaimer Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Agreement.
Relationship The relationship of the parties to this Agreement does not form a joint venture or partnership.
Waiver No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
Further Assurances Each party must do anything necessary (including executing agreements and documents) to give full effect to this Agreement and the transaction facilitated by it.
Governing Law This Agreement is governed by the laws of the state of New South Wales, Australia. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.
Severability Any clause of this Agreement, which is invalid or unenforceable is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Agreement.
End of General Conditions
Effective date: 23 May 2018.