The Service is provided, operated, and owned by Pooltrackr Pty Ltd (ACN 613 848 221) and its related entities or body corporates providing the Service (we, us, and our).
By using the Service, you agree to these terms of use (this Agreement). This Agreement constitutes a binding legal agreement between you and us, and your continued use of the Service constitutes your acceptance and acknowledgment of this Agreement, our Privacy Policy, and any other policy displayed on our website, all of which constitute a part of this Agreement. If you do not agree to all of the terms of this Agreement, you must not use the Service.
We may amend or modify this Agreement from time to time by providing you with 7 days’ notice. If you do not agree to the amendments, then you must stop using the Service. Your continued use of the Service irrevocably signifies your acceptance of any amendments.
If you purchase the Service from a Reseller who Sublicences the Service to you under the terms of a Sublicence Agreement, then the terms of your Sublicence Agreement with the Reseller will govern your use of the Service, subject to this Agreement. Resellers may only grant rights and must pass through conditions, consistent with this Agreement. Thus, even though your Sublicence Agreement is between you and the Reseller, by installing or using the Service, you acknowledge and agree that:
(a) any license rights in the Sublicence Agreement that are greater than the license rights in this Agreement shall not apply;
(b) any license conditions in this Agreement that are not contained in the Sublicence Agreement apply to you;
(c) the limitations of liability set forth in this Agreement will apply in favour of us and our affiliates despite the existence of a Sublicence Agreement; and
(d) we are a third-party beneficiary of any Sublicence Agreement and are entitled to exercise and enforce all of the Reseller’s rights and benefits under that Sublicence Agreement.
This Agreement will prevail over any other terms or agreement between you and us.
Definitions
In this Agreement, the following capitalised terms have the following meanings:
Agreement means these terms of use and includes the Subscription Terms and any policy on our website.
Business Day means a day on which banks are open for business in the State other than on a Saturday or Sunday or a public holiday.
Commencement Date is initially set out in the Subscription Terms, or if no date is mentioned, the date a Subscriber registers an account with us to access the Service. On each renewal of the Term, the Commencement Date will be the day after the day the previous Term expired.
Complimentary Service means the provision of the Service to you at no charge under a free trial subscription.
Complimentary Service Term means the duration of time of the Complimentary Service to you.
Confidential Information means all information of a confidential or proprietary nature, in any form whether tangible or not, disclosed or communicated by a party to the other, or learnt or accessed by, or to which the other party is exposed as a result of entering into this Agreement, but excluding information which:
(a) is or becomes a matter of public knowledge through no fault, action, or omission of the recipient or its personnel;
(b) is rightfully received by the recipient from a third party without a duty of confidentiality;
(c) was already known to the recipient at the time the disclosing party first made it available to the recipient, except as a result of disclosure known by the recipient to be made in violation of an obligation of confidence; or
(d) was independently developed by the recipient without reference to the information of the disclosing party.
Without limitation, our Confidential Information includes all know-how, trade secrets, technical information, specifications, data, Intellectual Property Rights, marketing procedures, enablement procedures, documentation, pricing information, client and client records, as well as business, corporate, or trade information.
Consequential Loss includes any indirect loss, incidental loss, consequential loss, loss of profits, loss of revenue, loss of production, loss of opportunity, loss of access to markets, loss of goodwill, loss of reputation, loss of use, any remote loss, abnormal loss, unforeseeable loss, loss of use and/or loss or corruption of data, any loss or damage relating to business interruption, or otherwise, suffered or incurred by a person, arising out of or in connection with this Agreement (whether involving a third party or a party to this Agreement or otherwise);
Customer Data any content or materials whatsoever (including but not limited to any information, data, text, graphics, photos, designs, trademarks, or any other artwork) which you upload or input into the Service.
End-User means an individual person using the Services.
Fees means the fees for the use of the Service, as set out in your Subscription Terms.
Force Majeure Event means and includes such events, beyond the reasonable control of a party, that hinder, prevent or delay performance, in whole or in part, of any obligation under this Agreement including without limitation, fire, flood, casualty, earthquake, war, lockout, strike, epidemic, pandemics, riot, destruction of facilities, insurrection, material unavailability, telecommunications or internet failures, regulations or restrictions imposed by law, acts of the government or governmental requirements.
GDPR means the General Data Protection Regulation (EU) 2016/679.
Insolvency Event means where the following event occurs in respect of a person:
(a) a party ceases, suspends, or threatens to cease or suspend the conduct of all or a substantial part of its business or disposes of or threatens to dispose of a substantial part of its assets;
(b) a party becomes unable to pay its debts when they fall due, or stops or suspends or threatens to stop or suspend the payment of all or a class of its debts;
(c) a party becomes or is (including under legislation) deemed or presumed to be insolvent;
(d) a party has a receiver, manager, administrator, administrative receiver, or similar officer appointed in respect of it or the whole or any part of its assets or business;
(e) any composition or arrangement is made with any one or more classes of its creditors;
(f) except for the purpose of solvent amalgamation or reconstruction, an order, application, or resolution is made, proposed, or passed for its winding up, dissolution, administration, or liquidation;
(g) a party enters into liquidation whether compulsorily or voluntarily; or
(h) any analogous or comparable event takes place in any jurisdiction.
Intellectual Property Rights means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these intellectual property rights include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semiconductor topography rights and rights in designs).
Operating Environment means your operating environment, facilities, systems, networks, devices, equipment, hardware, software, telecommunications, and connections.
Permitted Purpose means to track, manage and maintain pools, customers, products, water testing, invoicing and quotes, subject to any restrictions imposed in the Subscription Terms.
Personal Data has the same meaning as in the GDPR and is deemed also to be Personal Information within the meaning of the Privacy Act.
Privacy Act means the Privacy Act 1988 (Cth);
Privacy Laws means the following legislation to the extent applicable from time to time:
(a) the Privacy Act;
(b) national laws implementing the Directive on Privacy and Electronic Communications (2002/58/EC);
(c) the GDPR and national laws implementing or supplementing it, including the Data Protection Act 2018; and
(d) any other similar national privacy law.
Privacy Policy means our Privacy Policy available https://pooltrackr.com/privacy-policy/
Reseller means a third party who Sublicences the Service to you under the terms of a Sublicence Agreement.
Sensitive Information is defined in the Privacy Act;
Service means any and all websites, software, applications, platforms, and tools created by us.
State means New South Wales, Australia.
Sublicence Agreement means an agreement between you and a Reseller under which the Reseller sublicenses the Service to you.
Subscriber means the person or entity who purchases the access to the Service from us (or from a Reseller under a Sublicence Agreement).
Subscription Terms means the terms and conditions of the licence you select to use the Service, including the Fees payable and any stated restrictions, which may be set out in the relevant information page or pages on our website, provided to you or chosen by you on registration, or contained in your Sublicence Agreement (if applicable). You may have a choice between different packages of Subscription Terms.
Tax includes a tax, levy, duty, or charge (and associated penalty or interest) imposed by a public authority. It includes income, withholding, stamp, and transaction taxes (including any goods and services tax or value-added tax however named) and duties.
Term means the period of time specified in the Subscription Terms which commences on the Commencement Date, and any renewal term in accordance with clause 9.2.
Third Party Content means any information, data, or other content that we source and/or supply from any third party for use in connection with the Service.
Third Party Software means software supplied to you by us under licence from a third party, or accessible by you via the Service under a separate agreement between you and the third party.
Warranty or Warranties mean any warranties, conditions, terms, representations, statements, and promises of whatever nature, whether express or implied.
You and your means the Subscriber and any End-User.
Subscribers
The person accepting this Agreement for the Subscriber represents and warrants that they have the authority to act on behalf of the Subscriber.
We (or the Reseller, where the context requires) grant the Subscriber the right to authorise End-Users to use the Service for the Permitted Use in accordance with the Subscription Terms. This right is non-exclusive, non-transferable, and limited by and subject to this Agreement.
You acknowledge and agree that:
(a) the Subscriber is liable for all End-Users’ use of the Service and compliance with this Agreement;
(b) the Subscriber determines who is an End-User, controls each End-User’s level of access to the Service at all times, and can revoke or change an End-User’s access, or level of access, at any time and for any reason, in which case that person or entity will cease to be an End-User or shall have that different level of access, as the case may be;
(c) any End-User’s licence to access the Service will terminate upon the termination of the Subscriber’s licence to access the Services.
Registration
You may be required to register an account with us to access the Service. During registration, we may collect Personal Data from you, which will be kept in accordance with our Privacy Policy. At all times, you must ensure all information provided is accurate, correct, and up to date.
You are solely responsible for your account credentials, and for all use and activity carried out under your account. You must not share your account credentials with any third party. We do not authorise anyone to use the Service on your behalf, and we will not be liable for any loss or damage arising from any kind of unauthorised activity that takes place under your account.
You must not impersonate some other individual, business, or company.
You agree not to create an account or use the Service if you have been previously removed or suspended by us from the use of the Services.
Licence
In consideration for your strict compliance with all of your obligations in this Agreement, we hereby grant to you from the Commencement Date until the end of the Term (and during any Complimentary Service Term) a non-exclusive, non-transferable, non-sublicensable, personal, and revocable licence to access and use the Service for the Permitted Purpose and subject to the terms of this Agreement.
You must not:
(a) use the Service for any purpose other than the Permitted Purpose;
(b) use the Service in any way which is in breach of any applicable laws or which infringes any person’s rights, including Intellectual Property rights;
(c) use the Service in any way that damages, interferes with, or interrupts the supply of the Service;
(d) introduce malicious programs into our hardware and software or Systems, including viruses, worms, trojan horses, and e-mail bombs;
(e) use the Service to carry out security breaches or disruptions of a network. Security breaches include accessing data where you are not the intended recipient or logging into a server or account that you are not expressly authorised to access or corrupting any data (including network sniffing/monitoring, pinged floods, packet spoofing, denial of service, and forged routing information for malicious purposes);
(f) use any program/script/command, or send messages of any kind, with the intent to interfere with, or disable, any person’s use of the Service;
(g) send any form of harassment via email, or any other form of messaging, whether through language, frequency, or size of messages or use the Service in breach of any person’s privacy (such as by way of identity theft or “phishing”); or
(h) use the Service to circumvent user authentication or security of any of our networks, accounts or hosts, or those of our members or suppliers.
The Service may be accessed in the State and overseas. We make no representation that the Services complies with the laws of any place outside of the State. If you access the Service from outside the State, you do so at your own risk and are responsible for complying with the laws in the place you access the Service.
Your Warranties
You warrant and agree that:
(a) there are no legal restrictions preventing you from agreeing to this Agreement;
(b) you are not subject to an Insolvency Event;
(c) you will cooperate with us and provide us with all assistance, resources, data, people, information, facilities, access, and documentation that is reasonably necessary to enable us to perform the Service, and as otherwise requested by us, from time to time, and in a timely manner;
(d) all information and documentation (including Customer Data) that you provide to us in connection with this Agreement is true, correct, and complete, and that we will rely on such information and documentation in order to provide the Service;
(e) you will inform us if you have reasonable concerns relating to our provision of the Service under this Agreement, with the aim that the parties will use all reasonable efforts to resolve your concerns; and
(f) you are responsible for obtaining any consents, licences, authorities, and permissions from other parties necessary for the Service to be provided in accordance with this Agreement, at your cost, and for providing us with the necessary consents, licences, authorities, and permissions.
You acknowledge that except to the extent otherwise provided in this Agreement:
you are solely responsible for establishing, providing or procuring, maintaining, and supporting any Operating Environment necessary to use and obtain the benefit of the Service; and
(b) we are not responsible for any End-User’s inability to access or use the Service arising from any issue with that End-User’s Operating Environment.
Support
This clause 7 does not apply during a Complimentary Service Term.
We will make reasonable efforts to provide a basic level of support to allow you to reasonably use the Service, on Business Days between 9 to 5 pm AEDT time.
You may submit support requests to us by email or any specific ticketing feature offered on the Service.
The service support is conditional on:
(a) all reasonable information requested by us being promptly provided by you in relation to the service support requested;
(b) you and the Subscriber are not in breach of this Agreement; and
(c) you are using the Service in accordance with this Agreement.
Our liability for any failure to provide the service support in accordance with this Agreement is limited to resupplying the service support to the extent required to remedy the failure. This is your sole remedy under this Agreement for any failure to provide the service support.
Fees
This clause 9 does not apply in the following circumstances:
(a) during any Complimentary Service Term; or
(b) where you have obtained access to the Service through a valid Sublicence Agreement.
You must pay the Fees to us in accordance with your Subscription Terms.
All amounts stated in or in relation to this Agreement are, unless the context requires otherwise, stated exclusive of any applicable Tax, which will be added to those amounts and payable by you to us.
Payment for the Fees must be processed through Service. You authorise us to charge the payment method associated with your account for payment of the Fees. We will issue you with a tax invoice for each payment of the Fees.
You agree to keep the payment method current until the payment of the Fees is complete and quickly resolve any issues that may arise while we process your payment.
Any cost, fee, or other charges applicable on the payment of the Fees shall be borne by you. You must comply with the terms and conditions of the payment processor associated with your account.
You remain responsible for any uncollected Fees. If payment is not successfully settled, because the payment method is declined, due to expiration, insufficient funds, or otherwise and you do not cancel your account, we may suspend your access to the Service until we have successfully charged a valid payment method.
Fees are subject to change at any time, however, any price changes will apply to subsequent Term following notice of the changes to you.
To the extent permitted by law, any Fees paid to us are non-refundable and we do not provide refunds or credits should you cancel the Services during your current Term.
If you do not pay any amount due to us under this Agreement, then we may charge you interest at the rate equivalent to 2% higher than the rate for the time being fixed under Schedule 5 of the Uniform Civil Procedure Rules 2005 (NSW) on any amounts owing to us under the Agreement. We may also charge you any reasonable enforcement costs.
Term and Termination
This Agreement commences on the Commencement Date and will continue for the Term unless otherwise terminated.
At the end of the Term (and each successive Term), this Agreement will be automatically renewed for a further period equal to the Term unless otherwise terminated.
Either party may terminate this Agreement on written notice (including through any such functionality in the Service) prior to the end of the Term, with such termination taking effect at the end of the Term.
Either party may terminate this Agreement with immediate effect by giving written notice to the other party at any time if:
(a) the other party experiences an Insolvency Event;
(b) the other party breaches any material provision of this Agreement which is incapable of being remedied, or where the breach is capable of being remedied, fails to remedy the breach within 14 days after receiving written notice from the cancelling party requiring it to do so; or
(c) without limiting clause 10.3(b), the other party (or in the case of the Subscriber, any of its End-Users) fails to comply with the obligations set out in clause 5 (Licence), clause 6 (Your Warranties), clause 12 (Intellectual Property), clause 13 (Confidentiality) or clause 16 (Privacy and Data) (or any terms relating to privacy or security in the Subscription Terms, if applicable).
We may terminate this Agreement on 30 days written notice to the Subscriber if, in our reasonable opinion, the continued use of the Service would:
(a) breach any applicable law or professional standard; or
(b) bring our reputation into disrepute.
Without prejudice to our rights and remedies available under this Agreement or at law, we may suspend Subscriber’s access (or that of its End-Users) to the Service in the event that Subscriber breaches this Agreement, until such breach is remedied to our reasonable satisfaction. Subscriber shall not be entitled to any extension of the then-current Term or renewal Term (as applicable) as a result of any such suspension. Subscriber must continue to perform all of its obligations under this Agreement in the event of a suspension.
Effects of Termination
On expiration or termination of this Agreement for any reason:
(a) you must immediately stop using the Service;
(b) we may take any action necessary to disable or terminate your access to the Service;
(c) each party must promptly return (where possible) or delete or destroy (where not possible to return), the other party’s Confidential Information and Intellectual Property, and/or documents containing or relating to your Confidential Information unless required by law or regulatory requirements to retain such information; and
(d) we may remove or delete all Customer Data within one month.
Subscriber must, within 5 Business Days of termination or expiry of this Agreement, pay to us, all Fees incurred and/or owing under this Agreement up to and including the date of termination or expiry. To the extent permitted by law, and except where expressly stated in this Agreement, Subscriber will not be entitled to a refund of Fees that have already been billed or paid.
Upon the termination of this Agreement, all of the provisions of this Agreement will cease to have effect, save that the following provisions of this Agreement will survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 10 (Effects of Termination), 12 (Intellectual Property), 13 (Confidentiality), 17 (Limitation of Liability) and 18 (Release and Indemnity).
Updates
We may implement (in our absolute discretion) updates to the Service from time to time without notice, which may include adding, updating, or discontinuing any part, portion, or feature of the Service.
Intellectual Property
All Intellectual Property Rights in the Service are and remain our property. You must not dispute that ownership.
You must not, without our prior written consent:
(a) copy or use, in whole or in part, any of our Intellectual Property Rights;
(b) reproduce, retransmit, distribute, disseminate, sell, publish, broadcast, or circulate any of our Intellectual Property Rights to any third party;
(c) reverse assemble, reverse engineer, reverse compile or enhance the Service;
(d) breach any Intellectual Property Rights connected with us or the Service, including altering or modifying any of our Intellectual Property Rights;
(e) cause any of our Intellectual Property Rights to be framed or embedded in another website; or create derivative works from any of our Intellectual Property Rights;
(f) resell, assign, transfer, distribute or make available the Service to third parties;
(g) “frame”, “mirror” or serve any of the Service on any web server or other computer server over the Internet or any other network;
(h) alter, remove or tamper with any trademarks, any patent or copyright notices, any confidentiality legend or notice, any numbers, or any other means of identification used on or in relation to the Service;
Despite anything to the contrary in this Agreement or elsewhere, we may monitor, analyse and compile statistical and performance information based on and/or related to your use of the Service, in an aggregated and anonymised format (Analytics). You agree that we may make such Analytics publicly available, provided that it:
(a) does not contain identifying information; and
(b) is not compiled using a sample size small enough to make the underlying Customer Data identifiable.
We and our licensors own all Intellectual Property Rights in and to the Analytics and all related software, technology, documentation and content provided in connection with the Analytics, including all Intellectual Property rights in the foregoing.
If you provide us with comments or suggestions relating to the Services, then all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modification, or derivative works), are owned solely by us and we may use the feedback for any purpose.
As between you and us:
(a) all Customer Data is and remains your property; and
(b) you retain any and all Intellectual Property Rights in and to the Customer Data, including all copies, modifications, extensions and derivative works.
You grant us a limited licence to copy, transmit, store and back-up or otherwise access the Customer Data during the Agreement Term solely to:
(a) supply the Service to you (including to enable you and your Personnel to access and use the Service);
(b) diagnose problems with the Service;
(c) enhance and otherwise modify the Service; and
(d) develop other services, provided we de-identify the Customer Data, as reasonably required to perform our obligations under this Agreement.
You must, at all times, ensure the integrity of the Customer Data and that your use of the Customer Data is compliant with all laws.
You represent and warrant that:
(a) You are solely responsible for the Customer Data and the consequences of using, disclosing, storing or transmitting it.
(b) you have obtained all necessary rights, releases and permissions to provide all your Customer Data to us and to grant the rights granted to us in this Agreement; and
(c) the Customer Data (and its transfer to and use by us) as authorised by you, under this Agreement does not violate any laws (including those relating to export control and electronic communications) or rights of any third party, including any Intellectual Property rights, rights of privacy, or rights of publicity; and
(d) any use, collection and disclosure authorised in this Agreement is not inconsistent with the terms of any applicable privacy policies.
You acknowledge that we will suffer real and substantial damage as a result of a breach of this clause 12 and may seek injunctive relief for any actual or perceived breach and damages alone are not an adequate remedy.
Confidentiality
Each party (Recipient) must keep confidential, and not disclose, any Confidential Information of the other Party (Discloser) except:
(a) where permitted by this Agreement;
(b) with the prior written consent of the Discloser;
(c) where the Confidential Information is received from a third party, except where there has been a breach of confidence;
(d) on a confidential, “needs to know” basis to the Recipient’s Personnel, auditors, insurers, agents, and professional advisors; or
(e) where the Recipient is compelled to do so by applicable law, provided that it gives the other party written notice prior to disclosure.
The Recipient must only use the Confidential Information of the Discloser for the purpose for which it was disclosed and in connection with this Agreement.
Third Party Content
You acknowledge that the Service may incorporate Third Party Content including open-source software and that we are not responsible for the accuracy, quality, integrity, or reliability of the same.
To the extent permitted by law, we do not give any Warranty as to the reliability, accuracy, or completeness of any Third Party Content, including open-source software, and we will have no responsibility or liability to you or any other person arising from or in connection with any error, defect or inaccuracy in any Third Party Content.
Third Party Services
You acknowledge that the Service is dependent on other third party service providers and agree that to the extent permitted by law, we will not be responsible or in any way liable for any:
(a) interruptions to the availability of the Service resulting from the failure of third party services; or
(b) information contained on any linked third party website.
Where you provide us with credentials to access data from a third party service, you warrant that:
(a) you are entitled to share those credentials with us; and
(b) we are permitted to use that third party service for the purpose of verifying your identity.
Privacy and Data
You are responsible for the collection, use, storage and otherwise dealing with Personal Data related to the Subscriber’s business and all matters relating to the Customer Data.
You must and must ensure that all of your personnel and End-Users comply, with the requirements of the Privacy Laws in respect of all Personal Data collected, used, stored, or otherwise dealt with under or in connection with this Agreement.
Without limiting this clause 16, you must:
(a) notify End-Users or other natural persons from whom Personal Data is collected about any matter prescribed by the Privacy Laws in relation to the collection, use, and storage of their Personal Data;
(b) ensure that any Personal Data transferred to us is complete, accurate, and up to date; and
(c) notify us immediately upon becoming aware of any breach of the Privacy Laws that may be related to the use of the Personal Data under this Agreement.
Without limiting this clause 16, you may only disclose Personal Data in your control to us if:
(a) you are authorised by the Privacy Laws to collect the Personal Data and to use or disclose it in the manner required by this Agreement;
(b) you have informed the individual to whom the Personal Data relates, that it might be necessary for you to disclose their Personal Data to third parties and you have obtained their consent to do so; and
(c) where any Personal Data is Sensitive Information, you have obtained the specific consent to that disclosure from the individual to whom the Sensitive Information relates.
Limitation of Liability
To the maximum extent permitted by law, we exclude all liability and all Warranties of any kind, whether express or implied, statutory or otherwise, including without limitation any Warranties relating to the Service, the adequacy or timeliness of the Service or the results that may be obtained using the Service.
You acknowledge and agree that any recommendations or advice provided by the Service (including without limitation anything relation to chemical dosage) are meant as a guide only, and should always be reviewed by a professional. While the recommendations are made in accordance with best practices and in accordance with local standards in the State, you must never solely rely on them and should always consult a professional prior to any use or application. To the maximum extent permitted by law, we disclaim and exclude any liability in relation to your use or application of any recommendations and advice.
To the maximum extent permitted by law, our liability and the liability of our employees or agents for a breach of any warranty or liability which by law cannot be excluded, restricted or modified, or under any express warranty, is limited, at our option, to:
(a) the supplying of the Service again; or
(b) the payment of the cost of having the Service supplied again.
Our liability arising in connection with the use of the Service is limited as follows:
(a) we exclude all liability for any Consequential Loss;
(b) our total maximum liability arising in connection with this Agreement is capped to the total amount of any Fees paid to us by you in the 12 months preceding the event;
(b) our liability is excluded to the extent that you contributed to the liability;
(d) we exclude all liability for anything you have been aware of for longer than six months and you have not commenced a claim in a court of competent jurisdiction;
(e) our liability is subject to your duty to mitigate your loss.
The Service is provided to you on an “as is” and on an “as available” basis without any Warranties arising out of any course of dealing or usage of trade. We disclaim all Warranties that the Service or this website will be error-free, available continuously, uninterruptedly, or be free of harmful components, or that this Service and any Customer Data will be secure or not otherwise lost or altered. You acknowledge that we may suspend access to this website and the Service temporarily if we have reason to do so (including but not limited to maintenance, updates, or upgrades).
Release and Indemnity
To the maximum extent permitted by law, you agree to release the Released Parties from all Loss or Claims arising out of or in any way connected with any Relevant Matter.
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To the maximum extent permitted by law, you agree to indemnify, defend and hold harmless the Released Parties from any Loss or Claims arising out of or in any way connected with any Relevant Matter.
To the extent that it may be necessary in order to enforce the benefit of this Agreement by or on behalf of a Released Party, you agree that we hold the benefit of, and may enforce, the provisions of this Agreement that operate for the benefit of a Released Party, for and on behalf of that Released Party.
In this clause:
(a) Claim means a claim, action, proceeding, or demand made against a person concerned, however, it arises and whether it is present or future, fixed or unascertained, actual or contingent.
(b) Loss means damage, loss, cost, expense, or liability incurred by the person concerned however arising, including without limitation penalties, fines, and interest and including those which are prospective or contingent and those the amount of which for the time being is not ascertained or ascertainable.
(c) Released Party and Released Parties means us and our officers, directors, shareholders, agents, employees, consultants, associates, affiliates, subsidiaries, related parties, related body corporates, sponsors, and other third-party partners.
(d) Relevant Matter means anything in connection with:
(i) any damage to person, property, personal injury, or death;
(ii) any matter relating to Customer Data;
(iii) your breach of this Agreement;
(iv) any matter for which we have purported to disclaim liability for under this Agreement;
(v) your misuse or abuse of the Service; and
(vi) your breach or failure to observe any applicable law.
Force Majeure
Subject to the requirement to give notice under this clause, if the performance by any party (Affected Party) of all or any of its obligations under this Agreement is prevented or delayed in whole or in part due to any Force Majeure Event, this Agreement will continue and remain in effect but the Affected Party will not be in breach of this Agreement for that reason only for so long as the Force Majeure Event persists.
The Affected Party must promptly after becoming aware of a Force Majeure Event, give written notice to the other party of the nature of the Force Majeure Event and the way and the extent to which its obligations are prevented or delayed and notify the other party of any material change in these matters and use its reasonable endeavours to limit the effects of the Force Majeure Event, and promptly carry out its obligations as soon as, and to the extent that, it is able to do so.
General
All notices must be in writing and must be made by email. Notices are taken to be read on the day they are received, unless they are received after 5 PM or not on a Business Day, in which case they are deemed to be received on the next Business Day.
You must not assign, sublicense or otherwise deal in any other way with any of your rights under this Agreement except as expressly permitted under this Agreement. We may assign our rights under this Agreement at our sole discretion.
No breach of any provision of this Agreement shall be waived except with the express written consent of the party not in breach.
Any provision of this Agreement which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make this Agreement enforceable, unless this would materially change the intended effect of this Agreement.
With the exception of clause 18, this Agreement is made for the benefit of the parties and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree to any amendment, waiver, variation, or settlement under or relating to this Agreement are not subject to the consent of any third party.
This Agreement shall constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and shall supersede all previous agreements, arrangements, and understandings between the parties in respect of that subject matter.
This Agreement shall be governed by and construed in accordance with the law of the State. The courts of the State shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.