Terms of Service
Last updated on 1 August, 2023
1. Background
(a) MeldAPI Pty Ltd ACN 652 282 052 (MeldAPI/we/us/our) provides the Platform andthe Services and the Customer (you) wishes to access the Platform and receive the benefit of the Services.
(b) We have agreed to grant you access to the Platform and to provide you with the Services on the terms set out in this Agreement.
2. Agreement
2.1 Acceptance
(a) The terms of this Agreement are accepted where you:
(i) create or establish an Account with us to access the Platform; or
(ii) use an electronic means indicate you agree to these terms, for example by using a "click and accept" function; or
(iii) otherwise communicate to us, whether verbally orin writing, that you wish to be provided with access to our Platform and Services following your receipt of this Agreement.
(b) If you are accepting this Agreement on behalf of another party (for example, your employer), you represent and warrant to us that:
(i) you are duly authorised to accept this Agreement on behalf of the relevant party and to bind that party to this Agreement; and
(ii) to the extent you are not duly authorised to accept this Agreement on behalf of the relevant party, you agree that you will be personally liable to us under this Agreement and will indemnify us against anyLoss that we may suffer or incur as a result of your purported acceptance of this Agreement without appropriate authority.
2.2 Order of Priority
If there is any inconsistency or conflict between any of the provisions of the documents comprising this Agreement, to the extent of that inconsistency, the following order of priority will be given to the respective documents
(a) this document, and any annexures, schedules and appendixes to it; and
(b) our policies (including without limitation our Privacy Policy) which are incorporated into this Agreement by reference.
2.3 Authorised Representative
(a) Upon acceptance of this Agreement in accordance with clause 2.1 you must appoint an Authorised Representative. The Authorised Representative will:
(i) be our main and initial point of contact with respect to matters regarding our Agreement with you; and
(ii) have the authority to make decisions regarding issues or queries that arise regarding the terms of our Agreement.
(b) If you do not specifically nominate an Authorised Representative, you agree that your Authorised Representative will be deemed to be the first Authorised User in respect of which an Account iscreated to enable access to the Platform.
(c) You may change your Authorised Representative at any time by providing us with Notice.
(d) You hereby release and hold us harmless from any Loss that we suffer (howsoever incurred) that arises as a consequence of or in relation to our reliance upon any direction, instruction, statement or representation made by your Authorised Representative.
3. Term
This Agreement commences on the Acceptance Date and continues until terminated by either party in accordance with clause 13.
4. Access to Platform
4.1 Licence to Platform
(a) On and from the Acceptance Date and for the duration of our Agreement you are granted a licence to access and use the Platform (Licence).
(b) The Licence granted pursuant to clause 4.1(a) is not exclusive, sublicensable or transferable.
4.2 Licence Conditions
The Licence provided to you to use the Platform pursuant to clause 4.1, is conditional upon the following:
(a) you agree that you must:
(i) only use the Platform in accordance with this Agreement;
(ii) only use the Platform for the purposes it was expressly intended, as set out in any User Documentation provided;
(iii) comply with all reasonable and lawful directions that we may give from time to time with respect to your use of the Platform;
(iv) actively and diligently take all appropriate steps to ensure that the integrity of our Intellectual Property Rights subsisting in the Platform is maintained and protected from any nefarious actors that may seek to infringe those rights;
(v) maintain the security of:
(A) your account log in information; and
(B) all data that has been migrated to or recorded in the Platform;
(vi) cooperate with us in remediation of any security breach, Data Breach, unauthorised use or misuse of the Platform (and promptly report all such matters to us); and
(vii) procure that all your Authorised Users:
(A) comply with your obligations as set out in thisclause 4.2; and
(B) comply with each of your other obligations underthis Agreement regarding access to and use of the Platform (including without limitation to the extent those obligations relate to data security and protection of personal information pursuant to any Privacy Law).
(b) you agree that you must not:
(i) be involved in any business activity that is unlawful or that we reasonably consider would be likely to adversely impactupon our reputation;
(ii) allow or engage any third party to conduct development work on the Platform without first obtaining our written consent,which we may withhold in our sole discretion;
(iii) interfere or disrupt the operation of thePlatform nor attempt to do so;
(iv) grant access to the Platform to anyone other than your Authorised Users, unless we provide you with our express written consent;
(v) gain access to or utilize any data belonging to a third party (or otherwise attempt to do so); and
(vi) subject to any right under, sections 47B(3),47C, 47D, 47E or 47F of the Copyright Act 1968 (Cth), either directly or indirectly, modify, attempt to decompile, cross compile, disassemble, reverse engineer, or use any other means to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Platform.
(c) You acknowledge and agree that your failure to comply with the obligations set out in this clause may result in (at our discretion):
(i) our termination of the licence granted to you pursuant to clause 4.1 of this Agreement; or
(ii) our suspension or limitation of your access to the Platform.
(d) You hereby release and hold us harmless in respect of any Loss that you may suffer as a consequence of our exercise of any of our rights pursuant to sub-clause 4.2(c).
4.3 Add-ons
(a) We will from time to time provide Add-Ons that are accessible through the Platform. If you wish to activate and utilise an Add-On, you will be notified of the cost associated with using that Add-On at the time of selection.
(b) If you purchase an Add-On you are granted a licence to it on the terms contained in sub-clause 4.1.
4.4 Updates
(a) We may from time to time update the Platform. Once the Platform has been updated all new services offered because of the update will be governed by the terms of this Agreement.
(b) For the avoidance of doubt, we are under no obligation to update the Platform. However, you acknowledge that if we do provide an update to the Platform:
(i) you may be required to activate and implement the update to continue to access the Platform and receive the Services; and
(ii) a failure to implement or activate any update may negatively affect your ability to access and use the Platform, as well as the accuracy and functionality of the Services.
(c) You acknowledge and agree that the failure toimplement or activate an update that we have provided to you may result in your exposure to security risks that could otherwise be avoided (including in theform of exposure to a Data Breach). You acknowledge that we will not be liable to you for any Loss that you suffer (howsoever occurring) as a consequence of your failure to implement and activate any update relating to the Platform.
5. Services
5.1 Migration
(a) Where we have agreed to provide you with assistance in migrating your existing data into the Platform, we will migrate your data to the Platform and ensure its proper configuration (Data Migration).
(b) We will use our best endeavours to notify you of the costs associated with Data Migration prior to incurring such costs.
(c) In the event that we have not provided you with a notification of costs pursuant to 5.1(b) but have undertaken Data Migration at your request, we will charge for delivering such services at our prevailing hourly rates, which will be inaccordance with standard market and industry rates for undertaking such services.
(d) You acknowledge and agree that you are responsible for ensuring that you have appropriately backed-up and have access to copies of all data that you provide to us for the purpose of Data Migration.
(e) You acknowledge and agree that we cannot accept any responsibility for any corruption or loss of data that occurs as part of any Data Migration process, and you hereby release and hold us harmless inrespect of any Loss that you may suffer that is caused by or results from us undertaking Data Migration on your behalf.
5.2 Training
(a) You must ensure that your Authorised Users receive training and familiarise themselves with all User Documentation to enable them and you to properly address and troubleshoot all internal technicaland operational issues relating to your access to and use of the Platform.
(b) We may, upon your request and at our discretion, provide you and any of your Authorised Users with training in the use of thePlatform. The cost of such training will be in addition to any Fees charged for your access to and use of the Platform and will be notified to you prior to ourdelivery of such training.
5.3 Support
(a) Where you require general support services regarding your access and use of the Platform, we will use our beast endeavours to:
(i) respond to all requests for support in a timely manner; and
(ii) resolve all general support queries as quickly as possible.
(b) Notwithstanding clause 5.3(a), and subject to any separate service level agreement between us specifically relating to the provision of support services, you acknowledge and agree that:
(i) the services provided pursuant to 5.3(a) are complimentary and provided at our discretion, and we are under no obligation to provide such services; and
(ii) we can accept no responsibility or liability for any Loss that you may suffer or incur as a result of any support related issues remaining unresolved, or not being attended to in a timely manner.
6. Account
(a) To create an Account we require that you provide certain information, including your:
(i) full name;
(ii) unique email address; and
(iii) your company name (where applicable).
(b) You are responsible for migrating all data (unless you have specifically requested migration assistance from us pursuantto 5.1) and properly establishing the accounts of your Authorised Users.
(c) You acknowledge accessing and using the Platform requires proper Account establishment. If this does not occur:
(i) the Services may not be able to be provided, or if they are provided the Service deliverables may be adversely affected;
(ii) your Authorised Users may be required to re-establish their accounts before Services are provided; and
(iii) we will not be liable to you for any Loss suffered due to the Platform not being available or the Service deliverables being adversely affected.
7. Fees and Payments
7.1 Fees
(a) The Fees that are payable by you to us for accessing and using the Platform and the Services will be dictated by the nature and scope of the features and Add-Ons that you are requesting through the Platform.
(b) You will be notified within the Platform:
(i) at the time that you create your Account, of the Fees associated with creating and maintaining your Account;
(ii) at the time of requesting an additional Add-On, of the Fees associated with that Add-On; and
(iii) of the billing period associated with maintaining your Account subscription or, where relevant, the billing period associated with a specific Add-On.
(c) If you have requested that we provide a Service with which additional Fees are associated, we will provide you with a separate scope of fees associated with providing those Services, which you must pay in addition to any Fees payable for accessing and using the Platform and any Add-Ons.
(d) Our Fees will be charged in US dollars and may incur an international transaction fee depending on your banking institution.
7.2 Expenses
Any costs and reasonable out-of-pocket expenses which are necessary to provide the Services (Expenses) will be paid or reimbursed (as the case may be) by you where we have received prior written approval from you regarding the incurring of the Expense. We will submit documentation as evidence as is reasonably required by you to verify the Expense that has been incurred.
7.3 Disputed Fee
(a) If you dispute any Fees or Subscription Fees charged you must pay the portion not in dispute and provide Notice to us within seven (7) days of the charge clearing in your nominated payment method of your reasons for dispute.
(b) Within a reasonable time of receiving the notice, we will address your reasons of dispute, to enable a prompt and amicable resolution. If the dispute cannot be resolved within seven (7) days of our response, then the dispute must be referred to the procedure contained inclause 16.
7.4 Late Payment
(a) If you fail to make payment within the time required under this Agreement we may:
(i) charge you an additional reasonable administrative fee to account for our additional costs incurred as a consequence of your failure to make payment when required;
(ii) charge interest on the overdue amount at the Default Rate as from the first day that payment is overdue to the date we receive payment in full of all overdue amounts;
(iii) charge you for all costs and expenses incurred by us in recovering any outstanding Fees or charges, including legal fees (on a solicitor and own client basis), debt recovery fees and court costs, which you must pay upon demand; and
(iv) at our discretion, terminate or suspend your access to the Platform and our delivery of Services until all outstanding payments have been made.
(b) Where we exercise our rights of suspension or termination pursuant to clause 7.4(a)(iv) you release and hold us harmless from any Loss that you may suffer or incur asa consequence of such action.
7.5 GST
Unless otherwise expressly stated, all amounts under this Agreement are exclusive of GST, or any comparable sales tax in your jurisdiction (Tax). If Tax is imposed on any supply made under or in accordance with this engagement and Tax has not been accounted for in determining the consideration payable for the supply, then we may recover from you an amount on account of the Tax.
8. Data and systems
8.1 Data
(a) We will collect, use and store data and personal information in accordance with our Privacy Policy.
(b) All data, apps and servers used within the Platform (including data that has been migrated to the Platform) will be stored by Amazon Web Services (AWS). Where we intend to change providers from AWS, we will provide notice of the new provider with which we are engaging by way of notification through the Platform or otherwise to you directly.
8.2 Data Storage
(a) Where you have created an Account on the Platform, we will retain the following data in our databases until such time as you elect to delete your Account:
(i) your user name;
(ii) email addresses;
(iii) team/account names;
(iv) user passwords; and
(v) connector/API authentication tokens and refresh tokens.
(b) With regard to any other data that you provide that is not contemplated by 8.2(a), the Platform provides you with the functionality to determine the duration for which that data will be stored within the Platform (or on our third party servers), up to a maximum of thirty (30) days. You acknowledge and agree that it is your responsibility to ensure that your data is cached for an appropriate period of time, based on the nature and sensitivity of that data.
(c) You acknowledge and agree that:
(i) the nature of the Platform and the services that are provided through the Platform require that any data that you provide be transmitted between third-party API’s;
(ii) where data is transmitted to a third party API,the third party responsible for the relevant API will have its own data storage and security policies, and it is your responsibility to ensure you are comfortable with such policies;
(iii) we are not responsible for any Loss that you suffer or incur as a result of any third party data breach, or where data that is provided to a third party is lost or becomes corrupted by that third party; and
(iv) by using the Platform you are consenting to our transmission of your data between third parties with which the Platform has API’s.
(d) All title to your data remains with you in all respects and we do not obtain ownership of any Intellectual Property Rights in such data. However, you grant to us a licence to hold, use and store all data that you provide for all purposes related to our obligations under this Agreement.
(e) You are responsible for maintaining back-ups of all data which is migrated to the Platform.
8.3 Warranties – Data and Personal Information
You represent, warrant and undertake that:
(a) you own or have an unrestricted right to use all data that is migrated to the Platform or otherwise provided to us, including the right to authorise us to use such data in the provision of our Services;
(b) all personal information or personal data ascontemplated by any applicable Privacy Law that you provide to us under this Agreement has been collected by you and provided to us in accordance with the relevant and applicable Privacy Laws; and
(c) to the extent that data provided by you includes personal information or personal data, our use of such data in the provision ofour Services through the Platform will not cause us to breach any applicable Privacy Laws.
8.4 Systems and Equipment
(a) You are responsible for obtaining and maintaining all of your Systems.
(b) We may provide recommendations regarding actions that can be taken to optimise your Systems, however where we do so you acknowledge that it remains your responsibility to undertake your own due diligence and conduct your own investigations to ensure that such recommendations, if implemented, are appropriate, compatible and suitable with respect to your existing Systems.
(c) You are responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, accessor otherwise use the Platform and receive the Services.
9. General Warranties and Acknowledgements
(a) You represent, warrant and undertake that:
(i) you have the capacity and authority to enterinto and to perform this Agreement; and
(ii) this Agreement is accepted by a duly authorised representative of yours and legally binds you.
(b) You acknowledge and agree:
(i) computer and telecommunications services are not fault free and occasional periods of downtime may occur;
(ii) from time to time the Platform will be made unavailable to enable us to implement updates to the Platform or to undertake maintenance;
(iii) we may make recommendations to you regarding the adoption and implementation of various technological protection and other security measures. However, we make no representation or warranty that by adopting and implementing any recommendation that we have made that:
(A) your Systems will remain safe or secure from hacking, malware, viruses or other nefarious actors; or
(B) you will be safe from or avoid a Data Breach, whether occurring through the malicious intent of a third party actor orotherwise;
(iv) the provision of the Platform and Services through the Platform is dependent upon the availability of third party servers and platforms and, to the extent that such third party servers or platforms are unavailable, the Platform or certain Services accessible through the Platform may also be unavailable; and
(v) in addition to any other rights or remedies we may have, we may suspend or terminate your access to the Platform at any time and without any liability to you, if we are reasonably of the view that you or an Authorised User is in breach or is likely to breach a material provision of this Agreement.
(c) You acknowledge that we may unilaterally make changes to this Agreement and to our Privacy Policy to the extent that such changes are necessitated by any variations to any applicable Privacy Laws orother Law, and such changes will apply immediately upon Notice of the variation being provided to you.
(d) You agree that we may publish your branding and testimonials on our Platform, our website or on any of our other promotional material for the purpose of representing that you are a client of ours, provided we comply with our confidentiality obligations contained in clause 12.
10. Our responsibilities
10.1 General
In providing you with access to the Platform and delivering our Services we will:
(a) comply with the requirements of our PrivacyPolicy;
(b) provide reasonable notice of all scheduled maintenance and anticipated down time with respect to the Platform; and
(c) ensure that the Platform and Services are provided in accordance with the terms of this Agreement and all relevant and applicable Laws.
10.2 Data
When processing any of your data, we must:
(a) treat your data as Confidential Information;
(b) implement and maintain appropriate technical and organisational measures to protect the data from any misuse, loss, interference, unauthorised access, modification or disclosure;
(c) subject to any third-party hosting issue, ensure that you are able to access your data (to the extent that is within our control);
(d) if any of your data is lost, destroyed,corrupted or altered in connection with the provision of the Services, we will take reasonable and practical measures to assist you in restoring that data (noting that it is your obligation to ensure all of your data has been backed up appropriately);
(e) notify you if we become aware of any suspected or actual misuse or loss of, interference with or unauthorised access to, modification of or disclosure of, your data or any personal information (Data Breach) or if we are required by anyother Law to disclose any of your data for any reason;
(f) comply with any reasonable direction from you with respect to remedying or addressing a Data Breach; and
(g) inform and reasonably co-operate with you in the event of any risk regarding the security of your data.
11. Intellectual property rights
(a) Each Party retains all right, title and interest in and to its pre-existing Intellectual Property Rights.
(b) You acknowledge that we either own or use under licence all Intellectual Property Rights in the Platform and any Add-Ons, and nothing in this Agreement has the effect of transferring ownership of any such Intellectual Property Rights to you.
(c) You acknowledge and agree that all Intellectual Property Rights in the variations, modifications, additions and alterations to the Platform or any Add-Ons are owned by us, even where suggested or contributed to by you.
12. Confidentiality
12.1 Recipient must keep Confidential Informationconfidential
Each party must:
(a) keep confidential all Confidential Information;
(b) only use Confidential Information for the purpose of providing or receiving (as the case may be) the Services; and
(c) procure that its personnel comply with sub-clauses (a) and (b).
12.2 Disclosure exceptions
The obligations in clause 12.1 do not apply:
(a) to the extent necessary to enable a party to make any disclosure required by Law;
(b) to the extent necessary to enable a party to perform its obligations under this Agreement;
(c) where disclosure is required for any audit, quality assurance or insurance purposes as is reasonably required;
(d) to the extent necessary to receive professional (legal or financial) advice or pursue a legal claim;
(e) to any disclosure agreed in writing between the parties; or
(f) in respect of any portion of the Confidential Information which has entered the public domain other than as a result of a breach of this Agreement.
13. Termination
13.1 Termination by notice
(a) You may terminate this Agreement at any time by cancelling your Account within the Platform. You will continue to have access to the Platform and the Services through to the end of your then current billing period.
(b) For the avoidance of doubt, termination of this Agreement pursuant to sub-clause (a) will not entitle you to any refund of Fees that have been paid in respect of the then current billing period.
13.2 Termination for breach
Either Party may, without prejudice to its other rights or remedies, terminate this Agreement with immediate effect by written notice to the other party, in the event of:
(a) any material breach of the Agreement by the other party which is not remedied within 30 days after the service on the party in default of a written Notice specifying the nature of the breach and requiring that the same be remedied; or
(b) the other party becoming Insolvent.
13.3 Effect of Agreement ending
Upon termination or expiry of this Agreement:
(a) you must pay all outstanding Fees, and other charges due to us under this Agreement up to the date of termination; and
(b) any accrued rights or liabilities of either party or any provision of this Agreement which is expressly or by implication intended to come into or continue in force on or after such termination will not be affected.
14. Indemnity and Liability
14.1 Your indemnity
You agree to indemnify us and to keep us indemnified against any Loss that we may suffer or incur (whether or not such Loss has actually been realised) arising from or in connection with (directly or indirectly):
(a) any breach or default by you, your Authorised Users or your Authorised Representative, of this Agreement;
(b) any breach by you or any of your Authorised Users or Authorised Representatives of the terms of any third party licence;
(c) any negligent act or omission by you, your Authorised Users or your Authorised Representatives; and
(d) your failure, or the failure of your Authorised Users or Authorised Representative to comply with any Law.
14.2 Our indemnity
(a) Subject to clause 14.2(b), we will indemnify you with respect to any Loss suffered as a result of any Claim made against you by a third party alleging that the Platform, Services or Add-Ons infringe the Intellectual Property Rights of that third party.
(b) We will not be liable to you under 14.2(a) if:
(i) you do not notify us of the other person's Claim within 10 Business Days after becoming aware of it;
(ii) our ability to defend the Claim has been prejudiced by your non-compliance with any of your obligations under this Agreement;
(iii) you do not give us reasonable assistance (based on the circumstances) in defending the Claim; or
(iv) you do not permit us to have control of the defence of the Claim and all related settlement negotiations.
14.3 Exclusion of liability
(a) To the maximum extent permitted by Law, we will not be liable for any Consequential Loss arising out of or in connection with this Agreement, the delivery of our Services or the use of the Platform by you or any of your Authorised Users even if we were appraised of the likelihood of such Loss or damage occurring.
(b) You expressly acknowledge and agree that to the maximum extent permitted by Law, we will not be liable for any Loss that you suffer or incur because of a Data Breach.
14.4 Limit of liability
(a) Except as expressly provided by this Agreement, the Platform and our Services are provided on an “as is” basis without anyrepresentation, warranty or guarantee as to quality, condition or fitness forpurpose and we do not warrant they will be free of defect, uninterrupted,accurate, complete, current, stable, bug free, error free or available at anytime.
(b) To the extent permitted by Law, except inrelation to liability for personal injury, property damage or an infringementof Intellectual Property Rights, our liability is limited to the net payment received by us from you in the immediately preceding 12 months from when thecause of action arose.
(c) We do not accept and you hereby release us and hold us harmless in respect of all Loss and liability suffered or incurred as a result of:
(i) any loss, destruction or damage to data, whether caused by the Platform, as a result of our delivery of Services, or by a third party provider of cloud based storage or hosting, including (without limitation) as a consequence of a failure to appropriately backup any of your data;
(ii) the occurrence of any of the matters contemplated in clause 9(b);
(iii) the exercise of any of our rights (including of suspension or termination); or
(iv) any third party software malfunctions or malfunctions in the Platform caused as a result of interference by a third party.
14.5 Exclusion of other Terms
(a) Subject to sub-clause 14.5(b) any condition, guarantee or warranty which would otherwise be implied in this Agreement is hereby excluded.
(b) Liability for breach of a guarantee conferred by the Australian Consumer Law (other than those conferred by ss 51 to 53 of the Australian Consumer Law) is limited (at our election) to us providing the Services again or the payment of the cost of having the Services or Add-Ons supplied again.
15. Notices
Any notices given under or in connection with this Agreement:
(a) must be in legible writing and in English;
(b) must be either addressed to a party’s contact address as specified in this Agreement or as otherwise notified by a party to the other party from time to time; and
(c) must be:
(i) delivered to that party’s address;
(ii) sent by pre-paid mail to that party’s address;
(iii) sent by email to that party’s email address; or
(iv) in our case, sent or delivered to the:
(A) Authorised Representative’s contact address you have provided; or
(B) Authorised Representative by internal mail or notification within the Platform; and
(d) will be deemed to be received by the addressee (even where in our case delivered to the Authorised Representative):
(i) if delivered by hand, at the time of delivery;
(ii) if sent by post, on the third Business Day after the day on which it is posted, the first Business Day being the day of posting;
(iii) if sent by email, at the time that would be the time of receipt under the Electronic Transactions Act 1999 (Cth); or
(iv) if sent via the Platform at the time it is sent.
16. Dispute Resolution
(a) If a dispute arises between the parties to this Agreement (Participants) that arises out of or in connection with this Agreement (including any dispute as to the validity of this Agreement) which they cannot resolve, then the parties agree that before any court or arbitration proceedings (other than for urgent interlocutory relief) are commenced with respect to the dispute, the following steps must be taken to attempt to resolve the dispute.
(b) The party claiming that a dispute has arisen must deliver to the other parties a notice containing particulars of the dispute (Dispute Notice).
(c) During the period of 10 Business Days after delivery of the Dispute Notice, or any longer period agreed in writing by the parties to the dispute (Initial Period), the Participants must use their reasonable endeavours and act in good faith in an attempt to resolve the dispute.
(d) If the Participants cannot resolve the dispute within the Initial Period then unless they all agree otherwise, the Participants must refer the dispute to the Resolution Institute for the facilitation of a mediation according to the Resolution Institute’s Mediation Rules.
(e) If within 10 Business Days after the referral of the dispute to the Resolution Institute the parties have not agreed upon the mediator or any other relevant particular, the mediator and the particular not agreed will be determined in accordance with the Resolution Institute’s Facilitation Rules.
(f) All Participants must participate in the mediation in good faith and cooperate with the Resolution Institute as a facilitator.
17. General matters
17.1 Survival
(a) The obligations of clauses 12 to 16 survive the termination of this Agreement.
(b) Clause 17.1(a) is not intended to limit or preclude the survival of any term of this Agreement that by its nature would be expected to survive termination, or which would otherwise be made redundant or ineffective if it were to expire upon termination.
17.2 Amendments
Subject to the provisions of this Agreement, this Agreement may only be varied by a further written agreement accepted by or on behalf of each of the parties.
17.3 Parties
Nothing in this Agreement will be construed as creating a partnership or any other relationship between the Parties, or provide any exclusivity in the relationship between the Parties or the provision of the Services.
17.4 Force majeure
Neither party will be liable for any delay or failure to perform its obligations pursuant to this Agreement if such delay is due to Force Majeure. If a delay or failure of a party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that party’s obligations will be suspended. If a delay or failure by a party to perform its obligations due to Force Majeure exceeds thirty (30) days, either party may immediately terminate this Agreement on providing Notice to the other party.
17.5 Assignment
(a) We may, upon Notice in writing to you, assign or otherwise transfer the benefit of all or any part of this Agreement to any other person or entity.
(b) Neither any rights, benefits or liabilities relating to this Agreement may be assigned by you without our prior consent, which will not be unreasonably withheld.
17.6 Consents
Unless this Agreement expressly states otherwise, a party may in its absolute discretion, give conditionally or unconditionally or withhold, any consent under this Agreement. To be effective any consent under this Agreement must be in writing.
17.7 Costs
Each party will pay their respective costs and expenses of in connection with the negotiation, preparation, execution, and performance of this Agreement.
17.8 Entire Agreement
This Agreement contains the entire agreement between the parties about its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this Agreement and has no further effect. You warrant that you have not relied on any representation made by us which has not been stated expressly in this Agreement.
17.9 Further acts
Each party must promptly do all further acts and execute and deliver all further documents required by law or reasonably requested by another party to give effect to this Agreement.
17.10 Jurisdiction
This Agreement is governed by the Law in force inthe State of Queensland Australia and each party submits to the non-exclusive jurisdiction of the courts of Queensland and the courts competent to determine appeals from those courts, in relation to any proceedings that may be brought at any time relating to this Agreement.
17.11 NoMerger
No right or obligation of any party will merge on completion of any transaction contemplated by this Agreement.
17.12 Severability
Any provision of this Agreement that is illegal, void or unenforceable will be severed without prejudice to the balance of the provisions of this Agreement which shall remain in force.
17.13 Waiver
(a) Failure to exercise or enforce or a delay in exercising or enforcing or the partial exercise or enforcement of any right, power or remedy provided by Law or under this Agreement by any party will not in any way preclude, or operate as a waiver of, any exercise or enforcement, or further exercise or enforcement of that or any other right, power or remedy provided by Law or under this Agreement.
(b) Any waiver or consent given by any party under this Agreement will only be effective and binding on that party if it is given or confirmed in writing by that party and no waiver of a breach of any term of this Agreement will operate as a waiver of another breach of that term or of a breach of any other term of this Agreement.
18. Definitions and Interpretation
18.1 Definitions
In this Agreement:
Acceptance Date means the date that acceptance occurs under clause 2.1.
Account means the account created by you or by any Authorised User on the Platform.
Add-Ons mean software add-ons and third party integrations, as offered by us from time to time, that are additional to the Services.
Agreement means:
(a) this document, and any annexures, schedules and appendixes to it; and
(b) our policies (including without limitation our Privacy Policy).
Australian Consumer Law means Schedule 2 ofthe Competition and Consumer Act 2010 (Cth).
Authorised Representative means the suitably qualified, authorised and informed representative that has been nominated to act on your behalf with respect to this Agreement.
Authorised Users means any user that you have authorised to access your Account on the Platform.
Associate means:
(a) in relation to a corporation, any Related Body Corporate, any director, any person that has a substantial holding (as that term is defined in the Corporations Act) in the corporation, any person with whom the corporation is acting, or proposes to act, in concert and any person with whom the corporation is, or proposes to become, associated in any other way whether formally or informally; and
(b) in relation to a natural person, their spouse, any relative (including adoptive) of the person or the person’s spouse, or any corporation in respect of which the person is an associate because of clause(a) above.
Business Day means a day on which banks are open for business excluding Saturdays, Sundays and public holidays in Brisbane, Australia.
CCPA means the California Consumer Privacy Act (Cal. Civ. Code §§ 1798.100 - 1798.199).
Claim includes a demand, claim, action, dispute or proceeding made or brought by or against the person, however arising and whether present, unascertained, immediate, future or contingent.
Confidential Information means information that is by its nature confidential and is designated by a party as confidential or a party knows or ought to know is confidential, other than information which is or becomes public knowledge otherwise than by breach of this Agreement or any other confidentiality obligation.
Consequential Loss means indirect economic loss, loss of income or profit, loss or damages resulting from wasted management time, damage to goodwill or business reputation, loss of contract, loss of data, liability under other agreements or to third parties, loss of opportunity or any other special, indirect, remote or punitive loss or damage.
Corporations Act means the Corporations Act 2001 (Cth).
Data Breach has the meaning set out in 10.2.
Default Rate means the compound interest rate of 10% which is taken to accrue on a daily basis.
ePR means the e-Privacy Directive (Directive 2002/58/EC) (ePD) or the proposed Regulation on Privacy and Electronic Communications once it repeals and replaces the ePD.
Fees mean the fees payable to us for our provision of access to the Platform and our Services, as published on the Platform.
Force Majeure means any cause beyond the reasonable control of a party and which that party isunable to overcome by the exercise of reasonable diligence and at a reasonable cost, including a pandemic, an act of God, fire, earthquake, storm or flood, and the failure of third-party equipment, software, technology or otherservices necessary for the performance of a party’s obligations under this Agreement.
GDPR means EU General Data Protection Regulation (Regulation (EU) 2016/679) and any EU member state or UK Laws implementing GDPR.
GST means a goods and services tax, or a similar value added tax, levied or imposed under A New Tax System (Goods and Development Services Tax) Act 1999 (Cth).
Insolvent means if a person is insolvent or an insolvent under administration, or has a controller appointed (each as defined in the Corporations Act), are in receivership, in receivership and management, in liquidation, in provisional liquidation, under administration, wound up, subject to any arrangement, assignment or composition, protected from creditors under any statute, dissolved (other than to carry out a reconstruction whilst solvent) or otherwise unable to pay debts when they fall due.
Intellectual Property Rights means all intellectual property rights, including the following rights:
(a) copyright, patents, rights in circuit layouts, trademarks, designs, trade secrets, know how, and any right to have confidential information kept confidential;
(b) any application or right to apply for registration of any of the rights referred to in paragraph (a); and
(c) all rights or a similar nature to any of the rights in paragraphs (a) and (b) which may subsist,
whether or not such rights are registered or capable of being registered.
Law includes any requirement of any statute, rule, regulation, proclamation, ordinance or by-law, present or future, and whether state, federal or otherwise.
Loss includes any damage, loss, cost, liability or expense of any kind and however arising (including as a result of any Claim) including penalties, fines and interest whether prospective or contingent and any amounts that for the time being are not ascertained or ascertainable.
Moral Right means moral rights as defined in the CopyrightAct 1968 (Cth).
Notice means a notice given under or in connection with this Agreement that adheres to the requirements in clause 15.
Platform means the data integration platform provided by MeldAPI.
Privacy Law means the Privacy Act 1988 (Cth) and any other applicable law, regulation or directive of a government agency regarding the collection, storage and use of personally identifiable information, including without limitation:
(a) the Privacy Act 1988 (Cth);
(b) the GDPR;
(c) the ePR; and
(d) the CCPA.
Privacy Policy means the MeldAPI Privacy Policy that is available upon our website (www.meldapi.io/policies/privacy-policy) or upon request, and which governs the manner in which we collect, use and store all personal information, regardless of the means in which it is collected or received.
Services means the services we provide in addition to access to the Platform including the general support services, training and migration services as specified in this Agreement or separately agreed.
System means all computer firmware, middleware, protocols and other computer programs and all computer hardware, peripheral equipment, networks, communications systems and other equipment of whatever nature, used in your receipt of the Services and access to the Platform.
User Documentation means any material we have provided or made available to you containing technical and practical information regarding the use of the Platform.
18.2 Interpretation
In interpreting this Agreement, unless the context provides otherwise:
(a) the singular includes the plural and vice versa, and a gender includes other genders;
(b) another grammatical form of a defined word or expression has a corresponding meaning;
(c) a reference to a rule, paragraph or schedule is to a rule or paragraph of, or schedule to, this Agreement and a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
(d) a reference to time is to time in Brisbane Queensland, Australia;
(e) a reference to a person includes a natural person, partnership, body corporate, association, and any government agency;
(f) a reference to a party means a party to this Agreement and includes the party’s executors, administrators, successors, substitutes (including by novation) and assigns;
(g) a reference to a group of persons is to any 2 or more of them taken together and to each of them individually;
(h) a reference to the whole is to each part of it;
(i) a reference to a statute, regulation, code orprovision of a statute, regulation or code includes any modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it;
(j) "including" and similar expressions are not words of limitation;
(k) costs and expenses include legal costs and expenses on a full indemnity basis;
(l) conduct includes an omission, statement or undertaking, whether or not in writing;
(m) "property" or "asset" includes all property and assets of any nature, including a business, and all rights, revenues and benefits;
(n) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this document or any part of it;
(o) if a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day;
(p) where time is to be calculated by reference to a day or event, that day or the day of that event is excluded;
(q) a word or expression defined in the Corporations Act has the meaning given to it in the Corporations Act; and
(r) headings and table of contents are for ease of reference only and do not affect interpretation.
Please contact us with any questions or concerns.
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