End User Subscription Agreement (EUSA)

Important – read carefully: This end-user subscription agreement is a legal agreement between You and the Service Provider. By installing, copying or otherwise using the Software, you agree to be bound by the terms of this Agreement.  If you do not agree to the terms of this Agreement, do not install, copy or use the Software.

Interpretation

1.1.        Single Business Entity means a body corporate, trust, incorporated association or other entity carrying on a trade or business pursuant to an Australian Business Number (ABN) or being otherwise identifiable by a unique number identifier;

1.2.        Cloud-Based Format means the version of the Software that is hosted by a third party and is accessed over a network;

1.3.        Confidential Information means information that is designated by the disclosing party as, or is by its nature, confidential but does not include:

(a)          information already known to the receiving party at the time of disclosure by the other party; or

(b)          information in the public domain other than as a result of disclosure by a party in breach of its obligations of confidentiality under this agreement;

and in the case of the Service Provider specifically includes the Software and the Documentation;

1.4.        Documentation means all online, electronic or written information and instruction manuals regarding the use of the Software;

1.5.        Download-Based Format means the downloadable version of the Software available online, or via CD, DVD, Blu-ray, and USB;

1.6.        Force Majeure means a circumstance beyond the reasonable control of You and the Service Provider and which results in a Party being unable to observe or perform on time an obligation under this Agreement.  Such circumstances shall include but shall not be limited to:

(a)          acts of God, lightning strikes, earthquakes, floods, droughts, storms, tempests, mud slides, washaways, explosions, fires and any natural disaster; and

(b)          acts of war, acts of public enemies, terrorism, rights, civil commotion, malicious damage, sabotage and revolution;

1.7.        Harmful Code means any virus, disabling or malicious device or code, worm, trojan, time bomb or other harmful or destructive code;

1.8.        Instance means a single copy of a set of files that make up the Software;

1.9.        Intellectual Property Rights means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trademarks, designs, patents, circuit layouts, business and domain names, inventions, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields;

1.10.     Subscription means the subscription for a licence to use the Software granted by the Service Provider to You pursuant to clause 3.1 of this Agreement;

1.11.     Subscription Fee means the fees and expenses payable by You to the Service Provider in connection with the Subscription, which will be calculated in accordance with the fees set out on the Website (which may vary from time to time upon the Service Provider providing notice to You in accordance with clause 22.9) and notified to You by the Service Provider;

1.12.     Subscription Payment Due Date has the definition set out in clause 6.1;

1.13.     Subscription Data means the data, information, material or content You process, submit or upload using the Software;

1.14.     Service Provider means Cashflow Manager Pty Ltd ACN 008 131 137 of Level 5, 144 North Terrace, Adelaide SA 5000;

1.15.     Moral Right means:

(a)          a right of attribution of authorship;

(b)          a right not to have authorship falsely attributed;

(c)          a right of integrity of authorship; or

(d)          a right of a similar nature;

which is conferred by statute, and which exists or comes to exist anywhere in the world;

1.16.     Subscriber means the user or users of the Software via all subscription methods or formats that are authorised and registered by the Service Provider;

1.17.     Restricted Format means the restricted use version of the Cloud-Based Format;

1.18.     Server means, where You choose the Download-Based Format, the computer system on which an Instance of the Software is or is to be loaded;

1.19.     Software means any software developed by or on behalf of the Service Provider offered through the Website, as well as updates, modifications and patches to such software that the Service Provider makes available to You during the currency of this Agreement, and to be Subscribed either as a Cloud-Based Format or a Download-Based Format;

1.20.     Term means the duration of the Subscription as selected by You at the time that You complete the online subscription application for the grant of a licence in respect of the Software, and includes any renewal of the Subscription in accordance with this Agreement;

1.21.     Trial Period means a period of 30 days;

1.22.     Website means the Internet site at the domain www.cashflow-manager.com.au or any other site operated by the Service Provider from time to time;

1.23.     You, means the Subscriber, and, where the context permits, a Registered User. Your has a corresponding meaning,

1.24.    Registered User means a user nominated by You as an authorised user of the Software in accordance with clause 4.3;

1.25. In this Agreement, unless the contrary intention appears:

(a)          the clause headings are for ease of reference only and shall not be relevant to interpretation;

(b)          a reference to a clause number is a reference to its subclauses;

(c)          words in the singular number include the plural and vice versa;

(d)          words importing a gender include any other gender;

(e)          an expression importing a natural person includes any company, partnership, joint venture, association, corporation or other body corporate and any Governmental Agency;

(f)           a reference to a clause is a reference to a clause or subclause of this Agreement;

(g)          a reference to a subclause is a reference to a subclause of the clause in which that reference is made;

(h)          where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;

(i)            a reference to a Schedule includes a reference to any part of that Schedule which is incorporated by reference;

(j)            the recitals to this Agreement do not form part of the Agreement;

(k)          monetary references are references to Australian currency.

Acceptance

2.1.        This Agreement commences and takes effect on the earlier of You accepting this Agreement or You using the Software.

2.2.        You represent to the Service Provider that You have authority to enter into this Agreement.

2.3.        By using the Software, You will be bound by the terms of this Agreement.

Subscription

3.1.        Subject to the provisions of clause 5, the Service Provider grants You a non-exclusive, non-transferable, non-sub-licensable licence to access, view and use the Software for the Term solely in accordance with this Agreement as an end user only.

3.2.        You may:

(a)          Use one Instance of the Software on a single computer that You own or operate at a single physical location for Your Single Business Entity only;

(b)          Transfer Your Subscription on a permanent basis to another person or entity after written notice to the Service Provider, provided that you retain no Instances of the Software and the transferee agrees to the terms of this Agreement;

3.3.        Your use of the Software may be monitored by the Service Provider:

(a)          to ensure that the use is authorised;

(b)          to facilitate protection against unauthorised access;

(c)          to verify security procedures, availability and operational security;

(d)          to provide software and feature updates or notification thereof; and

(e)          for any other purposes reasonably required by the Service Provider.

Access to Cloud-Based Format

4.1.        To access the Software via the Cloud-Based Format, You will be issued with a unique user identification name and password by the Service Provider.

4.2.        You must keep Your unique user identification name and password confidential and not disclose them or make them available to any third party. The Service Provider will only store Your password in encrypted form.

4.3.        During registration of the Software via the Cloud-Based Format, You may nominate a specified number of Registered Users (as provided for within the registration process), who, upon registration with and authorisation by the Service Provider may use the Software in accordance with the terms of this Agreement.

4.4.        You are also responsible for any use of the Software by the Registered Users;

4.5.        Any breach of this Agreement by a Registered User will also be treated as a breach of this Agreement by You.

4.6.        The Service Provider is not responsible for any unauthorised access or use of Your unique user identification name or password. You are responsible for all activities which occur in connection with Your unique user identification name and password (whether undertaken by You or a third party) or if such information is lost or stolen.

Term and Trial Period

5.1.        You will be entitled to access, view and use the Download-Based Format in accordance with the terms of this Agreement, but without the requirement for the payment of any Subscription Fees, for the Trial Period.

5.2.        Continued use of the Software by You after the Trial Period or, in the case of the Cloud-Based Format, agreeing to update from the Restricted Format will be deemed to be acceptance by You of the functionality of the Software and agreement by You to continue to be bound by this Agreement for the balance of the Term (being a period of 12 months, less the Trial Period, unless otherwise agreed in writing with the Service Provider).

5.3.        If You do not wish to continue Your use of the Software after the Trial Period, then:

(a)          You must notify the Service Provider thereof in writing by not later than the last day of the Trial Period;

(b)          the Subscription granted in terms of this Agreement will terminate at the end of the Trial Period; and

(c)          if You use the Download-Based Format, You will discontinue use of all Software.

5.4.       Upon the expiration of the Term, Your Subscription will be automatically renewed for a further 12 months (or such other period agreed in writing with the Service Provider) (“Renewal Term”) on the same terms as are set out in this Agreement (including this clause 5.4, which will apply for each Renewal Term) unless either You or the Service Provider gives the other written notice of its intention to terminate the Subscription at least 30 days prior to the expiration of the then current Term.

5.5        The Subscription Fees payable for the Renewal Term will be the Subscription Fees as published on the Website 60 days prior to the commencement of the Renewal Term, subject to change as permitted by this Agreement.

Subscription Fees and Payment

6.1.        The Subscription Fees payable by You must be paid by You on the date or dates (“Subscription Payment Due Date”) and in the payment form you selected at the time of sign up. You are responsible for providing the Service Provider with updated payment details if your chosen method of payment is no longer valid prior to a Subscription Payment Due Date.

6.2.        All amounts payable by You must be paid in Australian dollars, without any deductions, withholdings or set-offs of any nature whatsoever on or before the due date of payment thereof.

GST

7.1.        A word or expression used in this clause which is defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) has the same meaning in this clause.

7.2.        Unless specifically described in this Agreement or any other document issued by the Service Provider to You as GST inclusive, any consideration to be paid or provided for a supply made under or in connection with this Agreement does not include any amount on account of GST.

7.3.        Where any supply to be made by one party (“the Supplier”) to the other party (“the Recipient”) under or in connection with this Agreement is subject to GST (other than a supply the consideration for which is specifically described in this Agreement as GST inclusive):

(a)          the consideration payable or to be provided for that supply but for the application of this clause (“the GST Exclusive Consideration”) shall be increased by, and the Recipient shall pay to the Supplier, an amount equal to the GST payable by the Supplier in respect of that supply; and

(b)          the Recipient must pay that additional amount at the same time and in the same manner as the GST Exclusive Consideration is payable or to be provided for that supply.

7.4.        The Supplier must issue a tax invoice to the Recipient in respect of any taxable supply made under or in connection with this Agreement (where required by law), such tax invoice to be issued at the time that the Supplier receives consideration for that taxable supply from the Recipient.

7.5.        This clause shall survive any termination of this Agreement.

Data

8.1.        You are solely responsible for the development, accuracy, quality, integrity, reliability, content, operation, maintenance, and use of Your Data including but not limited to:

(a)          data or content uploaded;

(b)          any claims relating to Your Data;

(c)          end-users use of Your Data;

(d)          any corruption of Your Data in connection with Your use of the Software or otherwise (including while uploading, deleting or migrating Your Data from the Software); and

(e)          compliance of Your Data with any laws, rules regulations and policies.

8.2.        You are solely responsible for:

(a)          any costs associated with uploading Your Data onto the Software;

(b)          the security of Your account and password;

(c)          taking Your own steps to maintain appropriate security, protection and backup of Your Data, which may include the use of encryption technology to protect Your Data from unauthorized access and routine archiving You Data;

(d)          in the case of the Download-Based Format, regularly backing up Your Data and using appropriate and up-to-date malicious code and virus detection software for preventing and detecting Harmful Code.

8.3.        The Service Provider will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any of Your Data.

Intellectual Property Rights and Indemnity

9.1.        You acknowledge and agree that the Software and the Documentation, and all other deliverables including but not limited to any upgrades, modifications, enhancements and any improvements of whatsoever nature, reports, programming, documentation and/or specifications thereof, constitute Confidential Information of the Service Provider and title thereto remains in the Service Provider.  Ownership of all Intellectual Property Rights in the Software and the Documentation are and shall remain vested in the Service Provider, along with any other proprietary rights associated with the Software.

9.2.        If the Software becomes or may become the subject of a claim of infringement of any third party’s Intellectual Property Rights, the Service Provider may, at its sole option and discretion:

(a)          replace or modify the Software to make in non-infringing; or

(b)          refund any Subscription Fees paid in advance.

9.3.        The remedies set out in clause 9.2 are the Service Provider’s sole liability and the exclusive remedy for any infringement of Intellectual Property Rights by the Software or any other items provided by under this Agreement.

9.4.        You indemnify the Service Provider, the Service Provider’s affiliates, officers, directors, employees, members, managers, consultants, agents, and suppliers and will keep the Service Provider indemnified on demand from and against all actions, claims, demands, losses, damages and expenses of whatever form or nature (including third party claims), including legal fees or other costs and disbursements that the Service Provider or the Service Provider’s affiliates sustain or incur as a direct or indirect result of:

(a)          any infringement of the Service Provider’s or any third party’s Intellectual Property Rights arising from Your use of the Software;

(b)          Your use of the Software;

(c)          breach by You or any other user of Your account, of any intellectual property or other right of any person or entity;

(d)          Your breach of this Agreement or any applicable law, policy, rule or regulation.

9.5.        Nothing in this Agreement affects the Moral Rights in the Software.

Restrictions on Use

10.1.     You acknowledge that no provision of this Agreement or any other agreement grants You any ownership rights with respect to the Software including, among other things, any rights with respect to the source code (human readable) format of any of the Service Provider’s owned or Software that is used in conjunction with the Software.

10.2      You acknowledge that a Subscription is only valid for a Single Business Entity and that each Business Entity requires its own Subscription to access the software.

10.3     You must not (and shall not allow any other third party to) modify, prepare derivative works of, reverse engineer, decompile or disassemble any proprietary aspects or features of the Software or create derivative works based on the Software or merge the Software with or into any other Software or copy the Software except as expressly permitted under this Agreement.

10.4     Except as the Service Provider may approve in writing, Your rights to use the Software shall not extend to any subsidiary, parent company or affiliate of You.

10.5     You may not use the Software for third party training or rental use. You must not rent, lease,  sell, assign, distribute or dispose of the Software, or the Documentation.

10.6     You must not attempt to undermine the security or integrity of the Service Provider’s computing systems or networks or, where the Software is hosted by a third party, that third party’s computing systems and networks.

10.7     You must not use, or misuse, the Software in such a way which may impair the functionality of the Software, the Website, the Cloud-Based Format or the Download-Based Format.

10.8     You must not attempt to gain unauthorised access to any materials other than those to which You have been given express permission to access or to the computer system on which the Services are hosted.

10.9     You must not transmit, or input into the Website, any content that may be offensive, files that may damage any other person’s computing devices or software, or material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which You do not have the right to use).

Confidentiality

11.1.     A Party shall not, without the prior written approval of the other Party, disclose the other Party’s Confidential Information.

11.2.     A Party shall not be in breach of subclause 11.1 in circumstances where it is legally compelled to disclose the other Party’s Confidential Information.

11.3.     Each Party shall take all reasonable steps to ensure that its employees and agents, and any sub‑contractors engaged for the purposes of this Agreement, do not make public or disclose the other Party’s Confidential Information.

11.4.     This clause will survive the termination of this Agreement.

Warranties

12.1.     The Service Provider warrants it is the owner of the Software and has the right and authority to grant the licence under clause 3 of this Agreement with You.  Without limiting the foregoing, the Service Provider warrants that there are no existing restrictions or constraints on its right and authority to licence the Software to You pursuant to the terms of this Agreement.

12.2.     During the Term, the Service Provider warrants that the Software will operate substantially in accordance with the Documentation, unless performance problems are the result of hardware failure, improper use, or modification by You or any third party or their respective agents or contractors or due to You or the third party’s failure to install all updates. If the Software does not so operate, You and the third party’s exclusive remedy and the Service Provider’s sole obligation under this warranty shall be, in the Service Provider’s sole discretion, either to replace the Software, to provide You with a bug fix or patch, or to refund the Subscription Fees (or a fair proportion of them having regard to the nature and extent of the defect) paid for the current version of the Software.

12.3.     If You or any third party is a “consumer” for the purposes of Australian Consumer Law, the Service Provider is required to include the following statement as a result of the undertakings described in clauses 12.1 and 12.2. Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. Under the Australian Consumer Law, you are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure. The benefits to you described in clauses 12.1 and 12.2 are in addition to other rights and remedies you have under the Australian Consumer Law and other laws.

12.4.     The Australian Consumer Law permits the Service Provider to limit its liability in respect of the guarantees referred to in this clause 12 in accordance with the limitation in clause 12.5.

12.5.     If You are considered a “consumer” for purposes of the Australian Consumer Law, certain guarantees may be conferred on You and certain rights and remedies may be conferred on You which cannot be excluded, restricted or modified. If so, then to the maximum extent permitted by law, the Service Provider’s liability to You is limited at its option to:

(a)          In the case of goods, replacement or repair of goods or payment of the cost of replacing or repairing the goods; and

(b)          In the case of services, re-supply of the services or payment of the cost of re-supplying the services.

12.6.     Subject to clause 12.4 and to the maximum extent permitted by law, the Service Provider hereby excludes all other conditions, warranties, guarantees or representations, express or implied, by statute, trade or otherwise, including without limitation: the Service Provider does not warrant that the functions contained in the software, upgrade or update will meet any particular requirements or needs You or any Customers may have, that the software, upgrade or update will operate uninterrupted or error-free, or that the software, upgrade or update is compatible with any particular platform, system or application. All warranty disclaimers and limitations of liability set forth herein apply to the Service Provider’s software developers, subcontractors and suppliers. it is the maximum for which they and the Service Provider are collectively responsible.

Liability

13.1.     To the maximum extent permitted by law, under no circumstance will the Service Provider, its employees and/or agents be liable to You or any other party in connection with the use of the Software or any information provided by the Service Provider to You for any indirect, incidental, special or consequential damages of any kind including without limitation, damages for economic loss, loss of business or other profits, loss of revenue, loss of data, loss of goodwill and loss of opportunity arising out of or referable to this Agreement or any act done or admitted to be done under or by reason of this Agreement whether caused by the negligence or breach of statutory duty by the Service Provider or otherwise or any associated expenses or costs arising out of or in connection with this Agreement or any termination or breach of this Agreement or any associated expenses or costs arising out of or in connection with this Agreement or any termination or breach of this Agreement.

13.2.     The liability of the Service Provider to You for a breach of a condition or warranty implied by law which cannot be excluded is set out in clause 12 above.

Indemnity

14.1.     Subject to the relevant provisions of clause 12 above, You are liable for and indemnify the Service Provider against all liabilities, claims, loss, costs and expenses (including, without limitation, legal fees, costs and disbursements on a full indemnity basis determined without taxation, assessment or similar process and whether incurred or awarded on against us) arising from or incurred in connection with Your and any other party’s use of the Software.  Each indemnity under this Agreement is a continuing obligation, separate and independent from your other obligations and survives termination of this Agreement.

14.2.     Subject to the relevant provisions of clause 12 above, You shall indemnify the Service Provider for any loss, damage or expense incurred by the Service Provider, to the maximum extent permitted by law, for any breach of this Agreement by You.

Suspension

15.1.     Access to the Software may be suspended if a third-party supplier of the servers on which the Cloud-Based Format is hosted suspends provision of access to those servers or in the Service Provider’s discretion including if there is a planned outage for operational or maintenance reasons, it is considered necessary for unscheduled repair, maintenance or service or in connection with a suspected or actual security risk.

15.2.     In the Service Provider’s sole discretion, it may suspend Your account or Your right to access the Software and Your account. Circumstances when this may occur includes but are not limited to:

(a)          on receipt of evidence of inappropriate or unauthorised access;

(b)         where service upgrades are to be performed on the Software or the servers or other means by which the Software is accessed or used;

(c)         where  Your use of the Software poses a security risk to the Software, or any third party, may adversely impact the systems or data of any other user, may subject the Service Provider, the Service Provider’s affiliates, or any third party to liability, or may be fraudulent;

(d)          in the event of Your non-compliance with this Agreement;

15.3.     the Service Provider’s rights under this clause 15 are in addition to any other rights of termination in this Agreement.

15.4.     If Your right to access the Software and/or Your account is suspended at any time:

(a)          You remain responsible for any Subscription Fees and any other fees and charges incurred to the date of suspension; and

(b)          You remain responsible for any applicable fees or charges in connection with any access which You may continue to have during this suspension period.

Termination (relevant only for Cloud Based Format)

16.1.     For the purpose of this agreement, each of the following is a Terminating Event;

(a)          the breach by either party of any of its material obligations under this agreement, which breach is not remedied within 14 days of receipt of written notice from the non-defaulting party requesting its remedy;

(b)          the appointment of any type of insolvency administrator in respect of the property or affairs of either party;

(c)          the entry or proposed entry by either party into any scheme, composition or arrangement with any of its creditors; and

(d)          in the case of You, the merger with or the takeover of You by another person.

16.2.     Where a party commits or suffers a Terminating Event (“Defaulting Party”), this agreement may be terminated immediately by notice in writing from the other party to the Defaulting Party.

16.3.     Upon becoming aware of the occurrence of a Terminating Event, the Defaulting Party must give to the other party notice of the happening of that event.

16.4.     Neither party shall be liable for the consequences of an occurrence of any event beyond its reasonable control.

16.5.     Any termination of this agreement shall not affect any accrued rights or liabilities of either party, nor shall it affect any provision of this agreement which is expressly or by implication intended to continue in force after such termination.

16.6.     If You validly terminate this Agreement You shall be liable to pay all Subscription Fees on a pro-rata basis for each day of the then current Term up to and including the day of termination of this Agreement.

16.7      Upon the termination of this Agreement for any reason, you must immediately cease accessing or using the Software and must return, uninstall or destroy (as directed by the Service Provider) all copies of the Software, the Documentation and any other materials provided by the Service Provider in respect of Your Subscription or the Software.

Privacy Policy

17.1 You acknowledge that You have read and agree to the terms of the Service Provider’s privacy policy, contained on the Website.

Modifications

18.1.     The Service Provider may modify this Agreement at any time by posting a revised version on the Service Provider’s website and/or notifying You thereof in accordance with the provisions of clause 19.10 of this Agreement.

18.2.     The modified terms will become effective upon posting on the website. By continuing to use the Software after the effective date of any modifications to this Agreement, You agree to be bound by the modified terms.

18.3.     Other than as set out above, no addition to, or modification of any provision of this Agreement will be binding unless agreed to in writing by the Service Provider.

Updates

19.1.     The Service Provider retains the right, in its sole discretion, to upgrade or modify the Software from time to time.

19.2.     The end of life of any Software version level supplied to You will occur on the earlier of:

(a)         the date being five (5) years after the introduction of that Software version level (“Version End Date”); and

(b)         the date the Service Provider provides an update or replacement of the Software version level that the Service Provider considers (acting reasonably) provides a better functionality than the current Software version level.

19.3.     A valid Subscription entitles You to support for any queries related to Your Subscription and the Software and the associated Single Business Entity or Single Business Entities for that subscription. Support is not provided for any Single Business Entity without an associated valid subscription or for queries relating to ATO or Accounting practices.

19.4.     You consent to the Service Provider’s provision of regular Electronic Communications to Your email address for the purposes of notifying you of updates to the Software.

Adding other Single Business Entities to Your Subscription

20.1      Generally, Software Subscriptions are provided on a Single Business Entity per Subscription basis. Each Subscription You purchase entitles You to use the version of Software the subject of Your Subscription for Your Single Business Entity only.

20.2      The Service Provider may, in its absolute discretion, permit You to add up to four additional Single Business Entities to Your Subscription, entitling each of those Single Business Entities to the same rights to access and use the Software as are granted to You.  You agree to pay an additional Subscription Fee for each Single Business Entity added to Your Subscription, which further Subscription Fees:

(a)         will apply and be payable pro rata for the balance of the Term of the Subscription, and otherwise on the same days and in the same manner as Your Subscription Fees are payable;

(b)         may be subject to any per Single Business Entity discount determined by the Service Provider from time to time, including any such discounts published on its Website.

20.3      Where one or more Single Business Entities are added to Your Subscription, the Subscription may be terminated in respect of all or any of those Single Business Entities in each of the manners a party is permitted to terminate this Agreement (including pursuant to clauses 5.4 and 16).

Electronic Communications

21.1.     The Service Provider will communicate with you electronically, including sending You Commercial Electronic Messages (as that term is defined in the SPAM Act 2003). You consent to the Service Provider sending Electronic Communications to You.

21.2.     Electronically transmitted information cannot be guaranteed to be secure or virus or error free and consequently such information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete or otherwise be adversely affected or unsafe to use. The Service Provider will not be liable to You in respect of any error, omission or loss of confidentiality arising from or in connection with the electronic communication of information to You.

21.3      It is Your responsibility to provide the Service Provider with any changes to Your contact information including Email address which is required as part of Your Licence Agreement. Should your contact details not be up-to-date the Service Provider will not be liable to You in respect of any missed communications including changes to the End User Licence Agreement, Terms and Conditions, Pricing or Software whereby You have not provided communication about these changes.

General

22.1.     Neither Party shall be liable for any delay or failure to perform its obligations pursuant to this Agreement if such delay is due to Force Majeure.

22.2.     This Agreement will be governed by the laws of the State of South Australia and the parties hereby agree to submit to the non-exclusive jurisdiction of the courts of South Australia and all courts having jurisdiction to hear appeals therefrom.

22.3.     This Agreement constitutes the entire agreement between the Parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing.

22.4.     This Agreement will be binding upon and inure to the benefit of the parties and their respective successors and assigns.

22.5.     You shall not transfer or assign any rights under this Agreement or the benefit of this Agreement without the prior written consent of the Service Provider, which consent the Service Provider may grant or not in its absolute discretion. The Service Provider may at its discretion assign all or any of its rights hereunder.

22.6.     A certificate signed by the Service Provider about a matter or about a sum payable to the Service Provider in connection with this Agreement is sufficient evidence of the matter or sum stated in the certificate unless the matter or sum is proved to be false.

22.7.     If any provision of this Agreement is held invalid, unenforceable or illegal for any reason, this Agreement shall remain otherwise in full force apart from such provision which shall be deemed deleted.

22.8.     No right under this Agreement shall be deemed to be waived except by notice in writing signed by each Party.

22.9.   The Service Provider in its absolute discretion, may alter the Subscription Fees charged for the Software by providing thirty (30) days written notice to You.

22.10.   All notices which are required to be given under this agreement must be in writing and must be sent to the registered address of the party or, in the case of You, such address (email or postal) as may be provided to the Service Provider by You upon registration. Any notice may be delivered by hand or by prepaid letter or email. Any such notice will be deemed to have been served when delivered (if delivered by hand) or 48 hours after posting (except by prepaid letter) or when on transmission by the sender (if sent by facsimile) or (if sent by email and unless agreed otherwise), when the email enters the recipient’s mail server.

22.11.   Subject to any provision to the contrary, this Agreement shall ensure to the benefit of and be binding upon the Parties and their successors, trustees, permitted assigns, or receivers but shall not ensure to the benefit of any other persons.

22.12.   The provisions of this Agreement which are capable of having effect after the expiration of the Agreement shall remain in full force and effect following the expiration of the Agreement.

Service Provider Delivery Policy

23.1.   The Service Provider delivers products to its clients and prospective clients by electronic and/or physical means.

23.2.   When a prospective client nominates to download a trial version of a software product from a Service Provider website the prospective client is notified by return email on the same day with instructions on how and where to download the trial product from the Service Provider website.

23.4.   When a customer purchases a Service Provider Cloud subscription, the application is available to use immediately their credit card or promotional code has been verified at the point of purchase.

23.5.   Updates of software for bug fixes or new or enhanced product features are made available to clients by download from the appropriate Service Provider website. Clients are notified of the availability of updates via email on the day of release or as soon as practicable thereafter.