Booking Boss T&Cs

Below are the Terms and Conditions for Booking Boss. A few things to note:

  • Support- don't forget we are here 24/7. You can call us any time. We also have our online portal Freshdesk that provides all the answers to your questions. If you need your log-in details sent through again, please let us know.
  • New staff? We can help with their training of the system so you can continue focusing on your business. •
  • Need advice on Distribution? Our team are travel industry experts who have the knowledge and contacts that can help build out your sales mix.
  • Follow our blog for industry and marketing tips to help your business. The blog is released weekly.

 

 

 We grow as you grow. As your bookings increase and you bump up a tier, your subscription fee will increase. To review these tiers, please visit https://www.bookingboss.com/pricing-features.

BOOKING BOSS PTY LTD TERMS AND CONDITIONS OF BUSINESS

Welcome to Booking Boss a leading booking and inventory management software and services platform for customers in the tour, activity and attractions industry. These Terms and Conditions of Business (Terms) are intended to explain our obligations as a service provider and your obligations as a customer. Please read them carefully.

 

These Terms are binding on any use of the Software, Hosted Service or Professional Services of Booking Boss Pty Ltd (us, we, our or Booking Boss) and apply to you from the earlier of (a) the time you confirm acceptance of these Terms, and (b) the time that Booking Boss provides you with access to the Software, Hosted Service or Professional Services. These Terms will continue to be binding on you for as long as you use the Software, Hosted Service or Professional Services of Booking Boss Pty Ltd, unless terminated earlier in accordance with these Terms. If you wish to cease using the Software, Hosted Service or Professional Services, you must give us at least 30 days written notice.

 

If applicable, as soon as reasonably practicable after we provide you with access to the Software, Hosted Service or Professional Services, we will send you a confirmation setting out any specific additional terms relevant to your use of the Software, Hosted Service or Professional Services.

Booking Boss's Software, Hosted Service and Professional Services are continuously evolving, with regular updates made available. Booking Boss reserves the right to change these terms at any time, effective upon the posting of modified terms. If a revision meaningfully reduces your rights, we will use reasonable efforts to notify you of the change (by, for example, sending an email or via an update in the Hosted Service itself). Notwithstanding any other provision of these Terms, if you continue to use Booking Boss's Software, Hosted Service and Professional Services after any such update, change, revision or modification, you will be deemed to have accepted such update, change, revision or modification (including for the avoidance of doubt, any increase in any fees payable under these Terms).

 

By registering to use or using the Software, Hosted Service or Professional Services you acknowledge that you have read and understood these Terms and have the authority to act on behalf of any person for whom you are using the Service. You are deemed to have agreed to these Terms on behalf of any entity for whom you use the Service. If you are agreeing to these terms as an individual "you" refers to you individually. If you are agreeing to these terms as a representative of an entity, you represent that you have the authority to bind that entity and "you" refers to that entity.

These Terms were last updated on 20 December 2016.

 

These Terms apply to (a) our software products (including "Applications", "Asset Classes", "Modules", "Integration Plugins" and "Integration Modules") ("Software"), (b) our hosted services ("Hosted Services") and (c) our implementation, consulting and managed services ("Professional Services"), and to your use of each of them. These Terms include any document referred to in them, including information, agreements our with third party service providers, user guides and other documentation that we produce in respect of our products and services ("Documentation") and our Privacy Policy (http://www.bookingboss.com/privacy-policy).

 

1. USE AND ORDERING OF SOFTWARE, HOSTED SERVICES AND PROFESSIONAL SERVICES

Ordering Direct. You can order Software, Hosted Services or Professional Services by executing an order online or in person to a Booking Boss representative. An order will allow you to select from the alternative ways in which Software, Hosted Services and Professional Services can be provided, such as the modules and number of bookings you process.

 

Reseller Orders. These Terms apply whether you purchase our Software, Hosted Services or Professional Services directly or through a Booking Boss authorized reseller ("Reseller"). If you purchase through a Reseller, your order shall be as stated in the order placed by the Reseller for you, and the Reseller is responsible for the accuracy of any such order. Resellers are not authorized to make any promises or commitments on Booking Boss's behalf, and we are not bound by any obligations to you other than what we specify in these Terms.

 

Administration. You must nominate your contacts and their contact details in an order so that we or a Reseller can communicate with you, and you must notify us if these details change. You will be able to authorise one or more people to operate your user account, and to use the Software and Hosted Services. You accept responsibility for the actions of each person that you authorise or enable to operate your user account, or to use the Software and Hosted Services.

Booking Boss Hosted Services. Where you order or otherwise use Hosted Services, subject to the provisions of these Terms, we grant you a non-exclusive and non-transferable right to use the Hosted Services for the Term. In respect of such Hosted Services:

  1. You acknowledge and agree that we may make changes to the Hosted Services from time to time, such as changing, adding and removing functions.
  2. You acknowledge and agree that the Hosted Services may be unavailable from time to time due to maintenance activities or due to technical problems, or other circumstances beyond our reasonable control.
  3. You acknowledge and agree that you are responsible for taking steps to ensure that the means by which you access and use the Hosted Services do not expose your computer systems and other devices to viruses, worms and other malicious code.

Professional Services. Subject to the provisions of these Terms, we will provide you with the Professional Services. We may subcontract the performance of any Professional Services or any support and maintenance services, but we will remain responsible to you for the delivery of those services. Unless stated otherwise by us, we will retain all rights, title and interest in and to any materials (including software, documentation, deliverables, modifications, enhancements and derivative works) ("Service Materials") that are created by us or on our behalf in connection with any Professional Service or other products or services that we provide to you. To the extent that the ownership of any contribution by you or your employees or contractors to the creation of the Service Materials is not, by operation of law or otherwise, vested in Booking Boss, you hereby assign and agree to assign to us all right, title and interest in and to such Service Materials, including without limitation all the Intellectual Property Rights (as defined below) therein, without the necessity of any further consideration, and you will cause your employees and contractors to do the same and waive all their moral rights in such Service Materials upon our request. Any Service Materials that we provide to you must only be used by you in relation to the applicable Software or Hosted Services, and your use of Service Materials is subject to the same terms and conditions that apply to the applicable Software or Hosted Services.

 

2. YOUR OBLIGATIONS

Restrictions. You shall be solely responsible for your actions and the actions of your users while using the Software and/or Hosted Services. Unless expressly stated otherwise in these Terms:

  1. you may only use the Software and the Hosted Services in the Territory for your internal business purposes, and the only people who are permitted to use the Software and the Hosted Services are your staff and your contractors as authorised by you;
  2. you must not use the Software or the Hosted Services to provide services to another person, or allow the Software or the Hosted Services to be used by any person through any outsourced service provision, timesharing, managed service or any similar kind of arrangement, or incorporate or combine any Software or Hosted Service in any product or service that you provide to any person;
  3. you must not license, sub-license, reproduce, modify, create derivative works of, sell, exploit, rent, lease, transfer, assign, distribute or disclose the Software or the Hosted Services or any part of them;
  4. you must not modify, reverse engineer, disassemble, decompile, reverse compile or otherwise try to access or reproduce the operation of the Software or the software used to provide the Hosted Services;
  5. you must not modify, attack, disrupt or circumvent any software, technology or other material used by us to provide or control access to the Software or the Hosted Services;
  6. you must maintain and not alter or remove any copyright, trademark or other protective notice in the Software and/or Documentation or in any copy of or any component of either of them,

and you must not directly or indirectly assist or permit any other person to do any of these things.

 

Your Systems. You are responsible for (a) obtaining, deploying and maintaining your internal website(s), servers and other equipment and software used in the conduct of your business, and all computer hardware, software, modems, routers and other communications equipment necessary for you and your users to access and use the Hosted Services; (b) contracting with third party ISP, telecommunications and other service providers to access and use the Hosted Services via the internet; and (c) paying all third party fees and access charges incurred in connection with the foregoing. Except as specifically set forth in these Terms, we shall not be responsible for supplying any hardware, software or other equipment to you under these Terms.

 

3. OUR OBLIGATIONS

Support and maintenance. We will provide support and maintenance services in relation to Software and the Hosted Services and otherwise subject to these Terms. We may change our Support and Maintenance from time to time. Any additional software that we provide to you in connection with our support and maintenance services for Software (including minor and major releases or updates, patches, fixes, modifications, etc.) ("Updates") will be deemed to be Software for the purposes of these Terms.

 

Availability. We will use reasonable efforts to make the Hosted Services available 24 hours a day, seven days a week, except for planned maintenance carried out during our maintenance window, unscheduled maintenance that we determine is required urgently or for circumstances beyond our reasonable control. To the extent permitted by law, we do not make any representation or warranty as to the availability of the Hosted Services or that the Hosted Services or the Software will be error-free or uninterrupted, and we make no representation or warranty in relation to the suitability of the Hosted Services or the Software for use by you.

 

4. CONFIDENTIALITY AND DATA PROTECTION

Confidentiality. Except to the extent permitted or required by these Terms, each party must not use or disclose any of the other party's Confidential Information. We may use your Confidential Information for the purpose of performing our obligations to you under these Terms or as otherwise permitted by these Terms. Each party may also disclose Confidential Information when required to do so by law or any regulatory authority, and to its representatives whose duties reasonably require such disclosure, provided the disclosure is made on a confidential basis to the extent possible. Confidential Information of a party (Discloser) means information treated by the Discloser as confidential or which the other party (Recipient) knows (or ought to know) is confidential, and which is disclosed by the Discloser to the Recipient, whether before or after the acceptance of these Terms, as well as all notes and other records prepared by the Recipient based on or incorporating that information; but excludes information that; is in or subsequently enters the public domain other than as a result of a breach of confidentiality by the Recipient or any of its permitted disclosees;is lawfully obtained by the Recipient from another person entitled to disclose such information; or is independently developed by the Recipient.

 

Data. We will treat any material that is uploaded by you in the course of your use of the Hosted Services ("Your Data") as your property. The term "Your Data" includes text, data, photos, video, audio and anything else that you upload or transmit using the Hosted Services. You grant us a non-exclusive, worldwide, royalty-free and irrevocable licence and right to collect, use, copy, store, transmit, modify and create derivative works of Your Data for the purpose of providing the Hosted Services to you, as required for benchmarking, analysis and the enhancement of the Software and Hosted Services and as otherwise permitted by these Terms. You agree that we may disclose Your Data to our service providers and transmit Your Data to and from our service providers, and you agree that those service providers can also store and transmit Your Data, for purposes permitted by these Terms.

 

Use of third parties. We use third parties to host the software and to transmit and store the data (including Your Data) used to provide the Hosted Services. Although we use protective security measures in relation to the Hosted Services, we do not make any representation or warranty that these measures will be effective at all times and you agree that your use of the Hosted Services involves use of systems, networks and facilities that are not owned, controlled, managed or operated by us, and that we are not responsible if any of Your Data is lost, corrupted, intercepted, stored or accessed across these systems, networks and facilities.

 

Without limiting the generality of the above paragraph, we use PromisePay Pty Ltd (PromisePay) as a third party service provider for payment services. By using Booking Boss's Software, Hosted Service and Professional Services, you agree to be bound by PromisePay's Privacy Policy (http://www.promisepay.com/privacy/), and you consent and authorise us to share with PromisePay any information and payment instructions you provide to us. In addition, to the extent required to complete your transactions, you consent and authorise us and PromisePay to share with any third party service provider(s) any information and payment instructions you provide to us. By using Booking Boss's Software, Hosted Service and Professional Services, you also agree to be bound by PromisePay's user terms (https://promisepay.com/policies/end-user-agreement/).

 

You will do all things reasonably necessary for us to continue to comply with our obligations to PromisePay (including providing reasonable assistance and necessary information requested from time to time by or on behalf of PromisePay in connection with its customer due diligence requirements). We will comply with our privacy policy and with all applicable privacy legislation in sharing your information and payment instructions with PromisePay and other third party service providers.

To the maximum extent permitted by law, we limit or exclude our liability to you for acts and omissions of PromisePay. To the maximum extent permitted by law, you agree not to make, and waive any right you may otherwise have to make, any claim against us in connection with services provided by PromisePay.

 

Compliance with laws. We agree to comply with our privacy policy which forms part of these Terms. You agree that you must comply with all applicable laws (including data protection laws) in connection with your use of the Software and the Hosted Services. You agree that you are solely responsible for considering and complying with your obligations to third parties and your obligations under all applicable laws, including notifying and obtaining the consent of third parties (where applicable), in relation to your use of the Hosted Services, and the use, transfer and disclosure of Your Data as contemplated by these Terms. By uploading Your Data, you represent and warrant to us that Your Data and its transmission and use by us and our service providers as contemplated by these Terms will not contravene any laws and that you have the necessary rights, consents and licences to make Your Data available to us to deal with as contemplated by these Terms. We may remove any offensive material, any violating content, or any material that does or may infringe any third party Intellectual Property Rights (as defined below) or any agreements with our third party service providers, as posted or stored using the Hosted Services or transmitted through the Hosted Services, without notice to you. Nothing in these Terms restricts us from disclosing Your Data if we are legally required or compelled to do so by a court, a government authority or some other body with the legal authority to compel disclosure.

 

Data indemnity. You indemnify us in respect of any loss, expense, liability or damage of any nature or kind which we suffer in connection with Your Data, including any claim brought by a third party that alleges that Your Data, or your use of the Hosted Services infringes any intellectual property or other right of a third party, or contravenes any law. This indemnity includes you indemnifying us for all legal expenses reasonably incurred by us, and is a continuing obligation, separate and independent from the other obligations of the parties, and survives termination, completion or expiration of these Terms and your use of our products and services. We do not need to incur expense or make any payment before enforcing this right of indemnity.

 

Backups and retention. Although we use backup procedures in relation to our Hosted Services, we do not make any representation or warranty that these measures will be effective at all times. We recommend that you keep backups of any material that you upload. You acknowledge and agree that we have no obligation to retain Your Data following the end of the Term and that Your Data may be irretrievably deleted by us any time after thirty (30) days following the expiry or termination of your use of our products and services.

 

Feedback and other data. If you provide us with any suggestions, questions, requests, comments or ideas in relation to the Software, Hosted Services or Professional Services ("Customer Feedback"), you agree that we may use, exploit, reproduce and disclose that Customer Feedback (including any Intellectual Property Rights or other proprietary rights which may exist in that Customer Feedback) in any way whatsoever, without any restriction or any obligation to you, and without any obligation to pay you any royalty, fee or any other amount. If you choose to give us Customer Feedback, it will not be Your Data or your Confidential Information for the purposes of these Terms. We may compile statistical, usage and performance information related to the provision of the Hosted Services including the general characteristics of the material uploaded by you in the course of your use of the Hosted Services. We may use that information and material to improve our products and services, as reasonably required for benchmarking and analysis, to create new products and services, and for marketing purposes. We will only use anonymised information and material that does not identify you for this purpose.

 

5. INTELLECTUAL PROPERTY RIGHTS.

Exclusive property of Booking Boss. You agree that any and all Intellectual Property Rights and other proprietary rights that subsist in or arise in connection with the Software, the Documentation or the Hosted Services, including Updates and modifications to any of them, anywhere in the world, are our exclusive property. You have no right in or to the Software, the Documentation or the Hosted Services apart from the rights expressly granted to you by these Terms and any rights granted by law which cannot be excluded by contract with you. We warrant to you that we have the right to grant the licences referred to in these Terms in the Territory.

 

IPR definition. In these Terms, Intellectual Property Rights means all rights in or to any patent, copyright, database rights, registered design or other design right, utility model, trade mark (whether registered or not and including any rights in get up or trade dress), brand name, service mark, trade name, eligible layout right, chip topography right and any other rights of a proprietary nature in or to the results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields, whether registrable or not and wherever existing in the world, including all renewals, extensions and revivals of, and all rights to apply for, any of the foregoing rights.

 

6. TERM AND TERMINATION.

Suspension for breach. We may suspend your access to the Software, Hosted Services or Professional Services if we reasonably believe that you have breached these Terms or that your conduct will result in breach of agreements with our third party service providers. Any suspension pursuant to this clause will not entitle you to any refund or credit or any right to terminate these Terms.

 

Termination for material breach. Either party may terminate their obligations pursuant to these Terms at any time immediately, or at such later date as that party chooses, by written notice to the other party if the other party materially breaches these Terms and fails to remedy such breach within 30 days after receipt of notice from the first party specifying the breach and requiring it to be remedied; or if the other party materially breaches these Terms and the breach is incapable of remedy; or we may terminate with immediate effect if you infringe our Intellectual Property Rights; or if the other party is subject to an Insolvency Event. In these Terms, Insolvency Event means in relation to a party, where that party becomes subject to any form of insolvency administration; ceases to carry on business; ceases to be able to pay its debts as they become due; any step is taken by a mortgagee or chargee to take possession or dispose of the whole or part of the that party's assets, operations or business; any step is taken to enter into any arrangement between that party and its creditors; or where any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a provisional liquidator, a liquidator, an administrator or other like person in respect of the whole or part of that party's assets, operations or business. Without limiting any other provision of these Terms, we may terminate with immediate effect if you infringe, or do anything that may cause us to infringe, agreements with our third party service providers in connection with the Software, Hosted Service or Professional Services.

 

Cease use. Upon termination or expiration of the Term for any reason, you must cease all use of the Software, the Hosted Services and the Documentation. Within 30 days after termination or expiration of the Term, you must, at our election, either destroy or return to us all copies of the Software, Documentation and our Confidential Information then in your possession, custody or control.

 

7. FEES

Usage fees. You agree to pay the fees and other charges payable as set out on our website or as otherwise notified to you from time to time, including any fees payable to third party contractors engaged in accordance with these Terms ("Fees") for use of Software, Hosted Services and in respect of any Professional Services. At a minimum, we will charge you a monthly subscription fee, which increases along with any increases in booking volumes you receive through the Booking Boss platform (and which is otherwise calculated on the basis set out on our website or as otherwise notified to you from time to time). The Fees may be increased in accordance with Booking Boss's standard pricing approach and such increases will be notified by Booking Boss to users of the Software, Hosted Services and Professional Services.

 

Fees where sale by Reseller. If you purchase any Software, Hosted Services or Professional Services through a Reseller, you owe payment to the Reseller as agreed between you and the Reseller, but you acknowledge that we may terminate your rights to use such products if we do not receive our corresponding payment from the Reseller.

 

Upfront fees. If specified on our website, in any Documentation, or as otherwise notified by us from time to time, fees may be payable upfront prior to commencement of a Software licence or access to the Hosted Services. If so, once we have received any upfront Fees, we will provide you with the applicable licence keys (for Software) and login details (for Hosted Services) by sending these to the primary contact email address nominated by you or as set out in your order. You acknowledge that your right to use any Software or Hosted Service is conditional upon us having received payment of all Fees.

 

SMS fees. The Booking Boss platform allows you to receive client reminders and confirmations, and also to monitor performance, via SMS. If you use this SMS service, we will change you the SMS fee for each SMS we send you. As at the date of these Terms, SMS fees are AUD$0.15 per SMS. If we are charging you in a currency other than Australian dollars, we reserve the right to convert this amount into another currency by using prevailing exchange rates at the relevant time. SMS fees may be increased in accordance with Booking Boss's standard pricing approach and such increases will be notified to you by Booking Boss.

Payment terms. You agree to pay all Fees in accordance with these Terms. Unless specified otherwise by us, the Fees must be paid within 30 days from the date of receipt of an applicable invoice. Except as expressly provided in these Terms, and to the extent permitted by law, all Fees and any other amounts paid or payable under these Terms are non-refundable, non-cancellable and not subject to any credits.

 

Currency. We will charge you Fees, and any other amounts you are required to pay us, in the currency we designate in the applicable invoice, and you agree to pay any such amounts in the currency designated in the applicable invoice. For the avoidance of doubt:

  1. a reference to "USD", "US$" or "USD$" means US dollars and if that is designated in the applicable invoice, then all amounts payable under that invoice are payable in US dollars;
  2. a reference to "AUD", "AU$" or "AUD$" means Australian dollars and if that is designated in the applicable invoice, then all amounts payable under that invoice are payable in Australian dollars;
  3. a reference to "EUR", "€" or "EUR€" means euro and if that is designated in the applicable invoice, then all amounts payable under that invoice are payable in euro.

No set off. All amounts payable under these Terms must be paid in full without set-off, deduction or other withholding of any amount. Should you be required by any law or regulation to make any deduction on account of tax or otherwise on any sum payable under these Terms, the sum payable will be increased by the amount of such tax to ensure that we receive a sum equal to amount to be paid under these Terms.

 

Sales tax. If any sales tax, value added tax or goods and services tax ("Sales Tax") is payable on any supply made under these Terms by us to you, you must pay to us the amount of the Sales Tax, subject to receipt of a valid invoice.

 

Usage limits. We may specify certain limits ("Usage Limits") from time to time in relation to your use of the Software or Hosted Services (such as the maximum number of users in both cases, and in the case of Hosted Services, certain data or storage limits). If these Usage Limits are exceeded at any time, you agree to pay us any additional Fees as set out on our website or as otherwise notified to you from time to time.

 

Credit card payments. If you make any payment using a credit card, to the extent possible, we will be responsible for the security of cardholder data that we possess or otherwise store, process, or transmit on your behalf. Data security standards is something we take seriously, and to the extent possible, we will also maintain compliance with all applicable Payment Card Industry Data Security Standard requirements, as well as our internal policies and procedures regarding data security, to the extent we possess or otherwise store, process, or transmit cardholder data on your behalf.

 

8. LIABILITY.

Performance warranty. We warrant that (i) the Software and Hosted Services shall perform materially in accordance with the requirements and specifications agreed in these Terms and (ii) except as otherwise provided in these Terms, the functionality of the Software and Hosted Services will not be materially decreased during the Term. For any breach of either such warranty, your exclusive remedy shall be the re-supply of the Software or Hosted Services, or a refund of a reasonable amount of Fees to compensate for the decreased functionality, at our option.

Capacity warranty. Each party represents and warrants that it has the legal power to enter into these Terms.

 

DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

LIABILITY CAP. TO THE EXTENT PERMITTED BY LAW, OUR CUMULATIVE LIABILITY TO YOU IN RESPECT OF ALL CLAIMS MADE BY YOU UNDER OR IN CONNECTION WITH THESE TERMS, WHETHER ARISING OUT OF BREACH OF CONTRACT, NEGLIGENCE OR ANY OTHER TORT, MISREPRESENTATION, UNDER STATUTE OR OTHERWISE, WILL NOT EXCEED IN THE AGGREGATE THE AMOUNT PAID BY YOU TO US FOR SOFTWARE, HOSTED SERVICES AND PROFESSIONAL SERVICES IN THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM.

NO CONSEQUENTIAL LOSS LIABILITY. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES, LOSS OF DATA, LOSS ARISING FROM INTERRUPTION TO BUSINESS, LOSS OF GOODWILL OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT, MISREPRESENTATION OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

Definition of Claim. In these Terms, Claim means claim, cause of action, suit, proceedings, judgment, debt, fine, penalty, damage, loss, cost, expense or liability of any kind.

9. GENERAL.

Disputes. All disputes arising out of these Terms must be referred within fourteen (14) days of the dispute to a senior executive appointed by both parties, who must together meet with the view to resolving the dispute. If the dispute is not resolved within seven (7) days of that meeting, the managing directors, CEOs or equivalent of both parties will meet to resolve the dispute, and if the dispute is still not resolved then the matter will be referred to mediation within 7 days of the date of the last meeting. If a matter is referred to mediation, such mediation may occur electronically by video link or otherwise will be held in Melbourne, Australia or such other place as may be agreed by the parties. The parties agree to share equally the costs of the mediator, and both parties may be represented by a duly qualified legal practitioner. Either party may commence court proceedings relating to any dispute arising from the agreement at any time where the party seeks urgent interlocutory relief.

 

Force majeure. Neither party shall be responsible for failure or delay of performance of an obligation if caused by (i) an act of war, terror, hostility or sabotage, (ii) an act of God, flood, fire or earthquake, (iii) electrical, Internet, or telecommunication outage or any other problem that is not caused by the obligated party, (iv) government restrictions (including the denial or cancellation of any licence), or any other event outside the reasonable control of the party with that obligation ("Force Majeure Events"). Each party will use reasonable efforts to mitigate the effect of a Force Majeure Event. If such event continues for more than thirty (30) days, either party may terminate these Terms upon written notice. This clause does not excuse either party of its obligations to take reasonable steps to mitigate the effects of a Force Majeure Event.

 

Notices. Any notice or communication given to a party under these Terms is only given if it is given in writing and either (i) delivered or posted to the party at its address and marked for the attention of the relevant department of officer, or (ii) faxed or sent by email to the party at its fax number or email address, or (iii) delivered by us through the Hosted Service. If a party gives the other party 3 business days' notice of a change of its address, email address of fax number, any notice or communication is only given by that party if it is delivered, posted, emailed or faxed to the latest address, email address or fax number. Any notice or communication is to be treated as given at the following time: If it is delivered, when it is left at the relevant address; if it is sent by post, 2 (or in the case of a notice or communication posted to another country, 5) business days after it is posted; if it is sent by fax, as soon as the sender receives from the sender's fax machine a report of an error free transmission to the correct fax number; if it is sent by email, as soon as the sender sends the email without indication of a subsequent sending error or rejection response; and if it is sent through the Hosted Service, at the time of posting. However, if any notice or communication is given on a day that is not a business day, or after 5pm on a business day in the place of the party to whom it is sent, it is to be treated as having been given at the beginning of the next business day.

 

Entire agreement. These Terms (and any documents or web links incorporated by reference, including agreements with our third party service providers) are the entire agreement between us and you regarding the Software, Hosted Services and Professional Services and supersede all prior agreements, discussions, and representations regarding the subject matter hereof.

 

Severability. If any provision of these Terms shall be deemed invalid, illegal, void or for any reason unenforceable, that provision shall be deemed to be severable and shall not affect the validity or enforceability of any other provision.

 

Independent contractors. The parties are independent contractors and these Terms do not create a relationship of employment, agency, joint venture or partnership between the parties.

 

No assignment. You may not assign these Terms or any rights under these Terms without our prior written consent.

Amendment must be in writing. An amendment of these Terms by you may only be agreed in writing signed by us.

No waiver. The failure of either party to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.

 

Governing law. The laws of the state of Victoria, Australia govern these Terms and the parties submit to the non-exclusive jurisdiction of the courts of Victoria.

Survival. The following provisions will survive any termination or expiration of the Term: confidentiality and data protection, intellectual property rights, fees, liability, and general.

 

Definitions. Terms which are capitalised have the meaning set out in these Terms.

Miscellaneous. In these Terms, unless the contrary intention appears: (laws) a reference to a statute or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements; (person) a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity; (singular, plural and gender) the singular includes the plural and vice versa, and a gender includes other genders; (headings) headings are for ease of reference only and do not affect interpretation; (executors, administrators, successors) a reference to a party is to either you or us (or both), and a reference to a party to a document includes the party's executors, administrators, successors and permitted assigns and substitutes; (grammar) another grammatical form of a defined word or expression has a corresponding meaning; (meaning not limited) the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions; (time) a reference to time is a reference to time in Melbourne, Australia; (day) a reference to a day is to be interpreted as the period of time commencing at midnight and ending 24 hours later; and (preparation of document) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of these Terms or any part of it.