1. Definitions
'Additional Named User' means a Named User purchased during a Term and for which payment is made monthly by Direct Debit.
'Agreement' means the agreement between NETMOW and the Client for the supply of Services as set out in the Order and Our Data Processing Addendum, in accordance with these Terms.
'Amount' means the amount that equals the number of months in the Initial Term on the order form multiplied by the monthly payments of the NETMOW Monthly Amount on the order form. 'Service' means the NETMOW online system, Website, Forms, Rates and Charges updates and NETMOW Website.
'Anniversary' means either (i) the Relevant Date or (ii) the last day of any subsequent period of 12 months from the Relevant Date.
‘Branded App Fees’ means the amount payable for the number of Client Matters in respect of the Branded Update Applications (being the Client App) as specified on the Order.
‘Business Day’ means a day other than a Saturday, Sunday or public holiday in Queensland when banks in Queensland are open for business.
‘Client’ means the individual, company or entity who purchases the Services from NETMOW.
'Commencement Date' means either (i) one month from the date of order acceptance (as defined in clause 7) or (ii) the date that NETMOW issues the login details to the Client, whichever is earlier.
'Initial Term' as defined in the order where this is applicable.
‘Intellectual Property Rights’ means all patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
“ITC” meant the Client’s information technology and communications infrastructure;
'Licence Fees' means the amount payable in respect of the Services (but for the avoidance of doubt, excluding the amounts payable in respect of the Branded App Services) as specified on the Order;
'Login Details' means the Client's login details for the Named Users or Client End Users in order to access the Services;
'Major Problem' means that either the Service will not start or no users can access it.
'Monthly Amount' means the monthly amount paid for the number of Named Users ordered by You and includes the following benefits:
(a) Continuous research, development and improvement (upgrades and iterative improvements) and support for the Service.
(b) Hosting of Your data and documents on the NETMOW Host Servers;
(c) Access to the free training videos for You and support staff;
(d) Access to the NETMOW HelpDesk Portal; and
(e) Unlimited access to the HelpDesk for technical support.
'Named User'’ means a user or users of the Client for whom the Services are being purchased as set out on the Order.
‘Order’ means the Client’s order for Services as set out in the Client’s acceptance of NETMOW ’s fees as set out in NETMOW ’s order form.
‘Relevant Date' as defined in the Order where this is applicable.
'Year' means either: (i) the period of 12 months from the Commencement Date (or the Relevant Date if this is defined in the Order); or (ii) any subsequent period of 12 months from any Anniversary of the Commencement Date (or the Relevant Date if this is defined in the Order).
'You’ and 'Your' mean the client detailed on the Order Form.
2. Basis of Contract, Commencement and Duration
2.1 The Order constitutes an offer by the Client to purchase the Services in accordance with Our Order Data Processing and these Terms.
2.2 The Order shall only be deemed to be accepted when NETMOW issues written acceptance of the Order or by starting to provide the Client with the relevant Services, at which point, and on which date the Agreement shall come into existence (“Acceptance Date”).
2.3 By submitting an Order, you shall be deemed to have accepted these Terms and Conditions, Our Privacy Policy and Our Data Processing Addendum and You agree to be bound by these Terms when You place any Order.
2.4 These Terms apply to the Agreement to the exclusion of other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.5 Any quotation given by NETMOW shall not constitute an offer and is only valid for a period of 20 Business Days from its date of issue.
2.6 Unless otherwise expressly stated in the Order, the Services supplied under the Agreement shall be supplied from the Commencement Date for an initial period of one (1) year and, after that, shall continue to be supplied on a rolling basis unless the Agreement is terminated by one of the parties giving to the other party not less than 2 (two) months’ notice, such notice to expire on the anniversary, or any subsequent anniversary of the Commencement Date (unless terminated earlier by either party in accordance with Clause 14 of the Terms) (“Term”).
3. Access to the Service
3.1 Access to the Services is subject to the availability of resources and NETMOW gives no undertaking or guarantee regarding the date of access to, and provision of the Login Details for, the Services. The Client is responsible for providing all In-put Material that NETMOW requires in order to provide access to, and provide the Login Details for, the Services.
3.2 Unless the Client advises NETMOW in writing within 14 days of the Commencement Date, access to the Services will be deemed to have been properly installed and made available to the Client.
3.3 The Named Users may access and use the Services on multiple devices. However, only one device per Named User may be used at any one time.
3.4 The number of Named Users cannot be reduced during the Term but can be increased by the Client by giving notice to NETMOW in writing. NETMOW may charge the Client an administration fee for making any changes to the Named Users.
3.5 For the avoidance of doubt, if the Client engages any third party (such as a consultant) to carry out any work in connection with the Services, the Client is responsible for any such associated charges (which shall be subject to any agreement in place between the Client and any such third party).
4. Branded Update Applications
4.1 Following the Commencement Date, the Client may subscribe for the Branded Update Applications by notifying NETMOW in writing.
4.2 The Client shall be invoiced monthly in arrears in respect of the Branded App Fees.
5. NETMOW ’s Responsibilities
5.1 NETMOW shall provide the Services to the Client in accordance with these Terms, and shall provide the following additional benefits:
5.1.1 rolling research, development and improvement (upgrades and iterative developments);
5.1.2 access to the NETMOW Online Helpdesk;
5.1.3 hosting of the Data and In-Put Material on NETMOW ’s hosting servers; and
5.1.4 access to the free training videos for the Client’s staff.
5.2 NETMOW shall use reasonable endeavours to meet any performance dates specified in the Order but any such dates shall be estimates only and time for performance by NETMOW shall not be of the essence for the performance of the Services.
5.3 NETMOW warrants to the Client that the Services will be provided using reasonable care and skill.
5.4 NETMOW shall make available to the Client the NETMOW Online Helpdesk in connection with the Services 24 on Business Days and in accordance with the following provisions:
5.4.1 if the Services are not working NETMOW will provide upgrades (or a manual work around) free of additional charges provided that the Client has paid all and any outstanding invoices;
5.4.2 NETMOW shall use its best endeavours to ensure the Services are operational as soon as reasonably practicable after receiving a support request to the National Helpdesk Service from the Client; and
5.4.3 NETMOW is unable to rectify hardware, operating Services or network problems, or problems relating to any third party software (which is the responsibility of the Client and its ITC).
5.5 The Services are subject to the limitations inherent in the use of the internet and other third party communication software and devices, and NETMOW accepts no liability for delays, delivery failures, or other damage resulting from their use.
6. Client’s Obligations
6.1 The Client shall:
6.1.1 ensure that the terms of the Order are complete and accurate;
6.1.2 co-operate with NETMOW in all matters relating to the Services;
6.1.3 safeguard the Login Details and ensure other third parties do not have access to the Login Details (including passwords);
6.1.4 immediately notify NETMOW of any actual or suspected loss, theft or unauthorised use of the Services or Login Details (including passwords);
6.1.5 conduct its own due diligence regarding the suitability of the Services based upon its own skill and judgement; and
6.1.6 provide, in a timely manner, such In-put Material and other information as NETMOW may reasonably require, and ensure that it is accurate in all material respects.
6.2 The Client hereby agrees to pay to NETMOW an administration fee (minimum of $100.00+GST) if the Client requests any update to the design of its client portal within the Website.
6.3 The Client shall not, nor authorise any third party to:
6.3.1 reproduce, copy, download, scrape, store, re-publish, transmit, transfer, communicate, distribute, disseminate, sell, rent, lend or otherwise use the Services, or any part of the Services, in any form or by any means;
6.3.2 make the Services (save for the App Services) available to any person other than the Named Users;
6.3.3 convert material downloaded from the Services into an electronic format other than the one in which it was supplied;
6.3.4 reverse engineer, decompile, disassemble or otherwise attempt to discern the source code of the components of the Services or reproduce all or any portion of the said components;
6.3.5 combine the whole or any part of the data available on the Services with any other software, data or material; or
6.3.6 redistribute content from the Services (unless content is specifically made for redistribution), without the written consent of NETMOW, other than to the extent necessary to view the material as permitted by law.
6.4 The Client is solely responsible for any activity conducted via the Services using the Login Details. NETMOW shall not be liable for any unlawful or unauthorised access to the Services as a result of the Client’s failure to safeguard the Login Details.
6.5 The Client shall fully indemnify NETMOW in respect of any loss, penalty, fine, costs or expenses whatsoever suffered or incurred whatsoever arising as a result of any unauthorised use of the Services that arises from any failure by the Client to safeguard the Login Details.
6.6 If NETMOW ’s performance of its obligations under the Agreement is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees, NETMOW shall not be liable for any costs, charges or losses sustained or incurred by the Client that arise directly or indirectly from such prevention or delay.
7. Changes to These Terms
These Supply and Support Terms and Conditions are subject to change from time to time to reflect changes in or requirements of the law or modifications or updates to the Services. The current version is published at www.exalt.net.au and NETMOW will notify You if any such change materially and adversely affects Your rights under this Agreement and You will have a right to terminate the Services at no additional cost within 14 days of being notified of change. By continuing to use or access the Services after any revisions come into effect, You agree to be bound by the revised terms.
8. Your Login Details
Please safeguard Your login details for the Service and make sure others don't have access to Your password. You must immediately notify us of any actual or suspected loss, theft or unauthorised use of the Service or passwords. You are solely responsible for any activity conducted via the Service using Your login details. NETMOW will not be liable for any unlawful or unauthorised access to the Service.
9. Right to Use and Additional Users
Conditional on Your compliance with these Terms, NETMOW grants You a limited, nonexclusive, non transferable, revocable license to access and use the Service. This license is for the sole purpose of enabling You to use the Services for Your internal business purposes.
All functions, data, information and materials provided by NETMOW via the Service may only be used by You in the ordinary course of the activities of Your organisation and expressly for the purposes of supplying Enterprise resource planning (ERP) services.
The Named user may access and use the Service on multiple devices, however, only one device per Named User may be used at any one time.
The number of Named Users cannot be reduced during a Term except where the Additional Named User has been purchased after the Term has commenced.
NETMOW may raise an administrative fee for making changes to Your user arrangements.
10. Intellectual Property Rights
10.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Client) shall be owned by NETMOW. NETMOW licenses all such rights to the Client free of charge and on a non-exclusive, non-transferable, worldwide basis to such extent as is necessary to enable the Client to make reasonable use of the Services in its business for the purposes of supplying the services.
10.2 If the Agreement expires in accordance with Clause 2.5 or is terminated pursuant to Clause 14, this licence will automatically terminate.
10.3 The Client shall not sub-licence, assign or otherwise transfer the rights granted in this Clause 10.
10.4 The Client owns all Intellectual Property Rights in the Data, its brand, its logo and its trademarks.
11. Restrictions
NETMOW is either the owner or licensed user of the copyright in the material on this website and within the Service that NETMOW provides.
Except as permitted in Clause 4 above, You must not, nor must You authorise any third person to:
11.1 reproduce, copy, download, scrape, store, re-publish, transmit, transfer, communicate, distribute, disseminate, sell, rent, lend or otherwise use the material or the Services, or any part of the material or the Services, in any form or by any means;
11.2 make the Services available to any person other than the Named User;
11.3 convert material downloaded from the Service into an electronic format other than the one in which it was supplied;
11.4 reverse engineer, decompile, disassemble or otherwise attempt to discern the source code of the components of the Services or reproduce all or any portion of the said components;
11.5 combine the whole or any part of the data available on the Services with any other software, data or material; or
11.6 redistribute content from the Service (unless content is specifically made for redistribution), without the written consent of NETMOW, other than to the extent necessary to view the material as permitted by law.
12. Invoicing, Payment and Charges
12.1 In consideration of the provision of the Services by NETMOW , the Client shall pay the charges (being the Licence Fees and (if applicable) the Branded App Fees) as set out in the Order (plus GST, where appropriate).
12.2 All NETMOW invoices are sent by email to Your email address as disclosed on the Order Form or to such other email address as You specify and are payable within the period specified on the invoice.
12.3 The Monthly Amount is payable by Direct Debit only using a transaction agent nominated by NETMOW.
12.4 In the event that an amount due to NETMOW for any reason or to a third-party finance company for payment of the Monthly Amount becomes overdue, all support, online services, content updating and access to Your NETMOW Website will be suspended and access to the hosted data may also be suspended.
12.5 Without prejudice to any other right or remedy that NETMOW may have, if the Client fails to pay NETMOW on the due date, the Client (at NETMOW ’s sole discretion) shall pay interest on the overdue amount at the rate of 18% per annum. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgement. The Client shall pay the interest together with the overdue amount.
12.6 Where any payments are being made by Direct Debit, in the event of the Direct Debit transaction failing for two (2) or more months the total outstanding amount will immediately become due and payable and the provision of support, online services, content updating and access to the Service will be suspended and access to the hosted data may also be suspended.
12.7 A dishonor fee may be charged for each failed Direct Debit.
12.8 In the event of a debt being handed over to a collections agency, You will be liable for all the legal costs associated with the collection of the debt.
12.9 All prices are exclusive of GST unless otherwise expressly stated.
13. Data Protection
13.1 The Client and NETMOW acknowledge that for the purposes of the Privacy and Data Protection Requirements, the Client is the data controller and NETMOW is the data processor in connection with the provision of the Services from NETMOW to the Client.
13.2 NETMOW shall, in relation to any personal data processed in connection with the performance by NETMOW of its obligations under the Agreement:
13.2.1 at the written direction of the Client, delete or return personal data unless required by the provisions of the Privacy Act 1988, including the Australian Privacy Principles to store the personal data;
13.2.2 process the personal data only on the instructions of the Client unless NETMOW is required by the provisions of the Privacy Act 1988, including the Australian Privacy Principles to otherwise process that data; and
13.3 The Client warrants that all personal data that it provides to NETMOW has been lawfully obtained and that the receipt, possession or use of that personal data in accordance with the Agreement will not place NETMOW in breach of any applicable Privacy and Data Protection Requirements or infringe any third-party rights.
13.4 The Client shall ensure it obtains informed consent from data subjects in respect of the processing of any Data that is personal to them, in accordance with all applicable Privacy and Data Protection Requirements and regulations from time to time and (without limitation) the following specific obligations:
13.4.1 the Client shall ensure that all data subjects to which any personal data relates have given their valid consent, and, where required under the Privacy and Data Protection Requirements, their explicit consent, to the transfer of their personal data by the Client to NETMOW and to the processing of their personal data by NETMOW in respect of the Services to be supplied under the Agreement;
13.4.2 As Data Controller, the Client shall ensure that all data subject to which any personal data relates are provided with a copy of the client’s Privacy Policy in accordance with all applicable Privacy and Data Protection Requirements; The Client shall ensure to provide the data subject a copy of Our Privacy Policy upon request.
13.4.3 the Client shall maintain such documentation as is required under the Privacy and Data Protection Requirements in respect of its obligations as controller of the Data;
13.4.4 the Client shall implement appropriate technical and organisational measures to ensure an appropriate level of security to protect the personal data.
13.5 The Client shall fully indemnify NETMOW in respect of any loss, penalty, fine, costs or expenses whatsoever suffered or incurred whatsoever arising directly or indirectly as a result of: (i) the Client failing to comply with its obligations under this Clause 13; or (ii) any breach by the Client of any Privacy and Data Protection Requirements.
13.6 The Client hereby acknowledges that:
13.6.1 NETMOW may monitor its usage of the App Services to assist NETMOW in improving its services. Any information collected will only used internally by NETMOW;
13.6.2 NETMOW may disclose personal data provided by the Client to its affiliated organisations for the purposes of providing the Services only. The third parties that we may disclose your personal information to or who may collect personal information on our behalf, include but are not limited to:
suppliers and other third parties with whom we have commercial relationships (for example, for design and maintenance)
any organisations for any authorised purpose that directly relates to one of our functions;
13.6.3 NETMOW may collect personal information where that information is reasonably necessary for, or directly related to, one or more of our functions or activities;
13.6.4 NETMOW may collect sensitive personal information without your consent, such as when it is required or authorised by law, or court or tribunal order. This includes express statutory provisions, as well as the more general application of the common law and the exercise of the Australian Government's executive authority;
13.6.5 If a data breach occurs, for example if personal information that we hold is subject to unauthorised loss, use or disclosure, we will respond in line with guidance provided by the Office of the Australian Information Commissioner: Data breach notification—A guide to handling personal information security breaches- external site. We will aim to provide you with timely advice to ensure you are able to manage any loss—financial or otherwise—that could result from the breach.
13.6.6 When the personal information we collect is no longer required, we delete or destroy it in a secure manner, unless we are required to maintain it because of a law, or court or tribunal order.
13.6.7 NETMOW may provide your personal information to other parties if:
13.6.7.1 it is legally required or authorised, such as by an Australian law, or court or tribunal order. This includes express statutory provisions, as well as the more general application of the common law and the exercise of the Australian Government’s executive authority;
13.6.7.2 it is reasonably necessary for an enforcement-related activity;
13.6.7.3 we reasonably believe that it is necessary to lessen or prevent a serious threat to the life, health or safety of any individual, or to public health or safety
13.6.7.4 we have reason to suspect that unlawful activity, or misconduct of a serious nature, that relates to our functions or activities has been, is being or may be engaged in and we reasonably believe that it is necessary in order for us to take appropriate action in relation to the matter
13.6.7.5 it is reasonably necessary for the establishment, exercise or defence of a legal or equitable claim
13.6.7.6 it is reasonably necessary for the purposes of a confidential alternative dispute resolution process
14. Commencement of NETMOW Term
The Order shall only be deemed to be accepted when NETMOW issues written acceptance of the Order or by starting to provide the Client with the relevant Services at which point and on which date the Agreement shall come into existence ("Acceptance Date")
The Term starts one month from the Acceptance Date.
15. Service Access
15.1 You acknowledge the Services are being provided on an “as is” and “as available” basis and NETMOW does not guarantee, represent or warrant that the Client’s use of the Services will be uninterrupted or error-free;
15.2 Access to the Service is subject to the availability of resources and NETMOW gives no undertaking or guarantee regarding the access date.
15.3 You will provide to us all information, documents and anything NETMOW needs in order to complete access to the Service within any specified deadlines. NETMOW will not be held responsible in any way for Your failure to do this.
15.4 Work that is performed by an external consultant is performed under their own terms and conditions signed by You.
15.5 Access to the Service will be taken to have been properly installed unless You advise NETMOW otherwise, in writing, within 14 days of the access date.
16. Your Company provided Information
You are responsible for confirming all information provide on the Order Form is correct. You agree to provide NETMOW a copy of your company logo within two (2) business days, if the logo is not received within this time frame, you agree to NETMOW using a default Logo for the website.
You agree to pay an administrations fee, of a minimum of $100, if after two (2) business days You request updated to the website design including, but not limited to, change to your company Logo.
17. Data Entry
You will be responsible for data entry. NETMOW does not accept responsibility for the accuracy of this data entry.
18.1 The Service may not operate properly (or at all) if up to date versions of the internet browser are not accessible by You.
18.2 NETMOW does not accept any responsibility for defects, data corruptions, Service failures or performance degradation caused by viruses or other software or components on Your hardware that may interfere with the way the Service operates.
18.3 It is Your responsibility to ensure that Your lTC is properly maintained and is not changed in a way which may adversely affect access to the Service.
18.4 Any work done by NETMOW due to failure to comply with 11.1 to 11.3 above may be charged to You at standard development rates.
18.5 During the Term, NETMOW can require mandatory upgrades of the Software to newer versions. This will happen if the operating system or any third-party component used by NETMOW ceases to be supported by their respective vendors, or if NETMOW decides that support of the existing version is no longer viable. In such cases, NETMOW will offer the upgrade free of any additional licence fees, but may charge for data transition, or refer You to a NETMOW partner where fees may also be charged. Should you refuse to accept an upgrade of the Software and NETMOW systems at NETMOW's request, NETMOW reserves the right to terminate services and support.
18.6 NETMOW reserves the right to refrain from providing HelpDesk support to You, if your hardware or software platform is non-compliant.
19. Responsibility to Back-up Data
Data and documents that synchronise with the hosted data server will be backed up by NETMOW. It is Your responsibility to ensure that all other data stored locally is backed up. You acknowledge that You have no claim against NETMOW for any loss or damage to data stored locally.
20. National HelpDesk Services
(a) HelpDesk services are provided from 8.30 am - 5.30 pm.
(b) If the Service is not working NETMOW will provide upgrades or a manual work-around free of additional charge provided the Monthly Amount is being paid. NETMOW will use its best endeavors to make the Service operational as soon as practicable after receiving Your support request.
(c) NETMOW does not rectify hardware, operating Service or network problems or problems relating to third party software which is the responsibility of Your lTC providers.
(d) When NETMOW is providing assistance You must ensure that a suitably trained and informed user is available to demonstrate the problem and provide any information or reasonable assistance that may be needed to perform the services.
21. Internet Speed
The Service is subject to the limitations inherent in the use of the Internet and other 3'd party communication software and devices and NETMOW is not responsible for any delays, delivery failures, or other damage resulting from their use.
22. Availability of data after termination
NETMOW may delete Your data after termination. However, in the event this Agreement is terminated, You will no longer have access to the service and it is Your responsibility to extract Your data from NETMOW.
You will be provided with 30 business days to arrange this (this does not apply for terminations under Clause 25). Alternatively, to continue to gain access to Your data through NETMOW, You will need to maintain a user under contract for so long as You require access.
23. Force Majeure and Delay Beyond NETMOW's Control
NETMOW will not be responsible for delays or failure to perform resulting from acts beyond its control, including but not limited to, acts of God, strikes, walkouts, riots, acts of war, epidemics, earthquakes or other disasters and failure of suppliers to perform including telecommunication breakdowns or interruptions and power failures.
24. Fitness For Purpose
NETMOW does not guarantee or warrant the fitness of the Service for any purpose other than the purpose for which it is supplied.
25. Duration and Termination
Unless otherwise expressly stated in the Order, the Services supplied under the Agreement shall be supplied from the Commencement Date for an Initial Term of one (1) Year and, after that, shall continue to be supplied on a rolling basis unless the Agreement is terminated by one of the parties giving to the other party written notice of not less than three months' notice ('Term').
25.1 Without affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect by giving written notice to the other party if:
25.1.1 the other party commits a material breach of any term of the Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so;
25.1.2 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company, individual or partnership) is deemed by NETMOW at is absolute discretion unable to pay its debts;
25.1.3 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors;
25.1.4 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company);
25.1.5 an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company);
25.1.6 the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
25.1.7 a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
25.1.8 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within fourteen (14) days;
25.1.9 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Clause 25.1.2 to Clause 25.1.8 (inclusive); or
25.1.10 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
25.2 Without affecting any other right or remedy available to it, NETMOW may terminate the Agreement with immediate effect by giving written notice to the Client if:
25.2.1 the Client fails to pay any amount due under the Agreement on the due date for payment;
25.2.2 the Client refuses to accept an upgrade relating to the Services; or
25.2.3 there is a change of control of the Client.
25.3 Without affecting any other right or remedy available to it, NETMOW may suspend the supply of the Services under the Agreement if:
25.3.1 the Client fails to pay any amount due under the Agreement on the due date for payment;
25.3.2 the Client becomes subject to any of the events listed in Clause 25.1.2 to Clause 25.1.8 or NETMOW reasonably believes that the Client is about to become subject to any of them;
25.3.3 NETMOW determines (at its sole discretion) that it is necessary to periodically maintain or improve the Services; or
25.3.4 NETMOW (acting reasonably) determines that the Client is using the Services in a manner which constitutes a breach of the Agreement, or is likely to be found illegal.
26. Consequences of Termination
26.1 On termination or expiry of the Agreement:
26.1.1 the Client shall immediately cease to use the Services and shall not have any access to the Services;
26.1.2 the Client shall immediately pay to NETMOW all of NETMOW ’s outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, NETMOW may submit an invoice, which shall be payable immediately on receipt;
26.1.3 where the Agreement is terminated by NETMOW pursuant to Clause 25, NETMOW may submit an invoice in for the App Fortnightly Amount and NETMOW Monthly Amount in respect of remaining term of the relevant Year, which shall be payable immediately on receipt;
26.1.4 the Client shall return all of the Pre-existing Materials within three (3) months;
26.1.5 the Client shall within 30 Business Days make arrangements with NETMOW to extract the Data from the NETMOW Solution (save where the Agreement is terminated by NETMOW pursuant to Clause 13, in which case the Client shall have no access to the Data); and
26.1.6 the following clauses shall continue in force: Clause 10 (Intellectual property rights), Clause 13 (Data Protection), Clause 28 (Confidentiality), Clause 13 (Limitation of liability), Clause 23 (Conflict), Clause 27 (Governing law) and Clause 28 (Jurisdiction).
26.2 Termination or expiry of the Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
26.3 NETMOW will not provide notice before termination where:
26.3.1 You are in material breach of the terms of the Agreement;
26.3.2 doing so would cause us legal liability or compromise our ability to provide the Service to our other users; or
26.3.3 we are prohibited from doing so by law.
27. Client Acknowledgements and Warranties
Except as expressly provided in this Agreement and to the extent permitted in accordance with Consumer Act 2010 (Cth) and the Australian Consumer Law, NETMOW disclaims all warranties of any kind for the Services provided.
28. Confidentiality
28.1 Each party undertakes that it shall not at any time during the Agreement, and after termination of the Agreement, disclose to any person technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to it by the other party.
28.2 Each party may disclose the other party’s confidential information:
28.2.1 to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this Clause 27; and
28.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
29. Assignment and Other Dealings
29.1 The Agreement is personal to the Client and the Client shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under the Agreement.
29.2 NETMOW may at any time assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under the Agreement provided that NETMOW gives prior written notice of such dealing to the Client.
30. Variation
No variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
31. Waiver
A failure or delay by a party to exercise any right or remedy provided under the Agreement by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
32. Rights and Remedies
The rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
33. Severance
If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this shall not affect the validity and enforceability of the rest of the Agreement. At least thirty (30) days notice is required from the next billing cycle.
34. Entire Agreement
34.1 The Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
34.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Agreement.
34.3 Nothing in this shall limit or exclude any liability for fraud.
35. Conflict
If there is an inconsistency between any of the provisions of these Terms and the provisions of the Order, the provisions in these Terms shall prevail.
36. No Partnership or Agency
36.1 Nothing in the Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
36.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
37. Third Party Rights
No one other than a party to the Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
38. Notices
38.1 Any notice given to a party under or in connection with the Agreement shall be in writing and shall be delivered by hand, email or by pre-paid first-class post or other next Business Day delivery service at its registered office (if a company) or its principal place of business (in any other case).
38.2 Any notice shall be deemed to have been received:
38.2.1 if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
38.2.2 if sent by pre-paid first-class post or other next Business Day delivery services, at 9.00am on the second Business Day after posting or at the time recorded by the delivery service;
38.2.3 if sent by email, at the time the email is sent.
38.3 For the purposes of Clause 38.2, and calculating deemed receipt:
38.3.1 all references to time are to local time in the place of deemed receipt; and
38.3.2 if deemed receipt would occur in the place of deemed receipt on a Saturday or Sunday or a public holiday when banks are not open for business, deemed receipt is deemed to take place at 9.00 am on the day when business starts in the place of receipt.
38.4 This Clause 38 does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
39. Governing Law
The Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of Queensland and Australia.
40. Jurisdiction
Each party irrevocably agrees that the courts of Queensland shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Agreement or its subject matter or formation.
