C    SOLUTION

C.1    Solution Description & Definitions.

(a)    The Site is a Members-only platform where each Member creates their own profile so that:

 i    Guests can learn about, book, pay for, review and discuss Experiences provided by Hosts;

ii    Hosts can profile Experiences they provide in their local area and promote them to Guests; and

iii    Hosts can receive enquiries and bookings for Experiences and receive payment of the Experiences Fees.

 Participation in Experiences forms a direct relationship between the Host and the Guest and you acknowledge and agree  that eXpertLocal does not provide the Experience and is not directly or indirectly liable or responsible for anything that occurs in relation to an Experience.

(b)    Definitions relevant to the Solution:

  i    Experience means a real-world activity, promoted on the Site, attended by a Guest accompanied or facilitated by a Host, in which the Guest usually pays the Experience Fee to the Host;

 ii    Experience Fees means the fees charged by a Host to a Guest for attending the Experience;

iii    Guest means an individual Member that may attend an Experience;

 iv    Host means a person, group, business or company Member that provides Experiences for Guests;

 v    Members means users of the site registered and validated as Guests and/or Hosts and approved by eXpertLocal to  access the Solution as a  Customer under these Terms; and

 vi    Site means the website http://www.expertlocal.com from which the Solution is accessible or such other URL as eXpertLocal determines to make the Solution available from.

C.2    Term.

Your license to access the Solution shall be ongoing until terminated by eXpertLocal in accordance with these Terms.

C.3    Limitations on Use.

eXpertLocal may limit or restrict access to the solution from time-to-time as it sees fit, including (but not limited to):

(a)    Age & Capacity. Only persons over the age of 18 may register as Members and all Members must be capable of forming binding legal contracts;

(b)    Location. eXpertLocal may restrict access to the Solution for Hosts and/or Guests from any location and may restrict the provision of Experiences in any location in it absolute discretion;

(c)    Members & Verifications. eXpertLocal may limit Members and Experiences and access to the Solution where it cannot, in its absolute discretion, verify the information provided to it by Members.

D    REGISTRATION, VERFICIATION & MEMBERS

D.1    Registration.

(a)    A user of the Site must register as a Member to access the Solution; and

(b)    Until registration as a Member is confirmed by eXpertLocal you are not granted a license to use the Solution and you must not use the Solution.

D.2    Verification.

Members may be required to verify their identity by (without limitation) email, telephone,residential or business address, social media, referrals, references and/or formal photographic identification. You agree to provide eXpertLocal with all necessary verifications we require to provide you with access to the Solution.

D.3    Members. Members may use the Solution as a Guest or a Host, or both:

(a)    Hosts.

 As a Host you warrant that:

 i    You are a fit and proper person to conduct an Experience;

 ii    You have genuine local knowledge which is relevant to the Experience;

 iii    The Experience as set out on the Site is an accurate and realistic description;

 iv    There are no additional fees and charges you have not disclosed that the Guest will have to pay in order to partake in the Experience;
 v    The Experience is legal and you will not provide or facilitate any illegal products, services or activities during the Experience or to any Members at any time; and

vi    You hold all appropriate permissions, licenses, permits, approvals and so forth required to hold the Experience.

(b)    Guests.

As a Guest you warrant that:

i    You agree and understand that you attend an Experience at your own risk;

ii    You are of the necessary age and have the necessary faculties, fitness, experience, qualifications and/or resources to partake in an Experience; and

iii    You will pay all Experience Fees.
(c)    Non-Circumvention.

You warrant that you will not attempt to circumvent the Solution to access either a Host or Guest so as to avoid the effect of these Terms.

(d)    Criminal Record & Incarceration.

You warrant that you have not been found guilty of any criminal offence related to violence, sex, fraud or terrorism and/or that you have not been sentenced to a period of incarceration in excess of 12 months

D.4    Breach of Warranties.

Where eXpertLocal has reasonable grounds to believe you are in breach of the warranties found in clauses D.3 above it shall have the right to immediately terminate your access to the Solution and cancels any Reservations you may have as a Guest or Host.

E    SAFETY

The safety of the eXpertLocal community is paramount. It is important that you report any of the following to eXpertLocal immediately (and also to local law enforcement if appropriate):

(a)    Misconduct or inappropriate behaviour;

(b)    False descriptions of the Experience;

(c)    Criminal or illegal activity;

(d)    Endangerment or recklessness; and

(e)    Abusiveness or violence.

F    EXPERIENCES

F.1    Experiences are the core of eXpertLocal's Solution. When you submit an Experience for posting on the Site, eXpertLocal reserves the right to review each listing to ensure it complies with these Terms.

F.2    Each Experience listed on the Site may be required to include:

(a)    Description. Description of the Experience and the inclusions (such as entry fees, transport, food & drink etc);

(b)    Location. The location of the Experience;

(c)    Date. The date of the Experience;

(d)    Meeting Place. The location the Guest should meet the Host to commence the Experience;

(e)    Starting & Finish Times. The start and end time of the Experience;

(f)    Attire. The recommended attire for the Experience;

(g)    Other Items. Any other items the Host recommends the Guest bring (such as sunscreen, torch, headphones, camera etc);

(h)    Experience Fee. The Experience Fees charged by the Host;

(i)    Other Costs. Any costs that will be incurred by the Guest during the Experience (such as admission fees, transport costs, product purchases etc); and

(j)    Expected Spend. The estimated spend by the Guest on discretionary items such as food and drink.

F.3    Enquiries, Reservations & Acceptance.

(a)    Enquiries.

Guests may communicate with Hosts through the Site to enquire about Experiences, and ongoing correspondence shall be made through the Site.

(b)    Reservations.

Guest may make a request to reserve attendance of an Experience through the Site. In doing so the Guest confirms that they accept the Experience as promoted by the Host and that should the reservation be accepted, eXpertLocal will deduct the Experience Fees and Transaction Fees (if any) from the Guest's nominated payment method.

(c)    Acceptance.

i    The Host must accept the reservation request by a Guest, which will then form an independent agreement between the Host to provide the Experience for the Guest;

ii    Payment shall be authorised from the Guest as set out in the Reservation;

iii    The Guests and Hosts contact details will be released to each other; and

iv    Upon acceptance the Host also agrees to remit any Service Fees to eXpertLocal from the Experience Fees eXpertLocal collects on the Host's behalf through the Solution.

(d)    Payment Authorisation.

Payment of the Experience Fee by Guest shall be preauthorised by eXpertLocal pending the Host's provision of the Experience.

F.4    The Experience.

(a)    Contact.

eXpertLocal recommends that Guests and Hosts contact each other by phone or email to confirm the Experience at least 24 hours prior to the Starting Time.

(b)    On-Time.

i    The Host and the Guest agree to arrive at the Meeting Place on-time;

ii    Either party may determine the Experience to be Cancelled (in accordance with the Cancellation Policy in these Terms) if the other party has not arrived within 15 minutes of the Starting Time. This time allowance may be less if the Meeting Time is to meet a critical admission or transport arrangement.

(c)    Guest Numbers.

As the number of Guests on an Experience may be limited, Guests cannot bring along other attendees that have not been booked through eXpertLocal.

(d)    Identification.

Guests and Hosts must carry with them photographic identification so that the parties can safely identify each other.

F.5    Payment.

Payment of the Experience Fees shall be released to the Host 2 business days after the successful completion of the Experience, subject to the Cancellation Policy and Refund Policy.

F.6    Unsatisfactory Experience.

(a)    If an Experience is unsatisfactory to a Guest eXpertLocal recommends that you discuss your concern with the Host directly. If you are not able to reach a satisfactory resolution then you may report the Experience to eXpertLocal.

(b)    Refunds are only issued by eXpertLocal in accordance with the Refund Policy.

G    PRICING AND PAYMENT MATTERS

G.1    Fees & Charges.

(a)    Experience Fees are set by the Host and are payable by the Guest to eXpertLocal prior to attending the Experience, and paid to the Host after the satisfactory completion of the Experience;

(b)    Transaction Fees are set by eXpertLocal and paid by the Guest to cover any additional costs incurred by eXpertLocal for processing payment by the Guest; and

(c)    Service Fees are set by eXpertLocal and paid by the Host to eXpertLocal as a deduction from the Experience Fees it collects on behalf of the Host from Guests that attend the Experience.

G.2    Payments.

(a)    Hosts shall be paid within 2 business days of the successful completion of an Experience. The Host shall be paid:

i    The Experience Fees minus the Service fees;

ii    To its PayPal® account (or if available from time-to-time) its nominated financial institution; and

iii    In Australian dollars.

(b)    You agree that eXpertLocal is not liable for any direct, indirect or consequential loss caused by late, delayed or misrouted payments.

G.3    Currency.

All transactions are processed in Australian dollars by local and international payment providers. You accept that international payment processing fees may apply from your financial institution.

G.4    Changes to Fees & Charges.

eXpertLocal may change any Fee & Charges at any time by giving you 1 days' notice. These changes will become effective when you next make or receive a payment through the Solution.

G.5    GST.

(a)    eXpertLocal does not charge any GST on Experience Fees to Guests. All Experience Fees are quoted GST inclusive by the Host.

(b)    eXpertLocal does not provide a Tax Invoice to the Guest for Experience Fees. If you require a Tax Invoice you must verify with your Host if they are registered for GST.

(c)    As a Host you agree that you must remit any GST from Experience Fees to the relevant government agencies and you indemnify eXpertLocal and the Guest for any GST liability.

(d)    eXpertLocal shall charge GST on any Transaction Fees and Service Fees.

H    CANCELLATION POLICY

H.1    Host Cancellation.

Where a Host cancels an Experience the Guest shall receive a full refund within 14 days.

H.2    Guest Cancellation.

(a)    Where a Guest cancels its Reservation no later than the close of business in the Reference City on the seventh day before the Date of the Experience, it shall receive a refund of 100% of the Experience Fees;

(b)    Where a Guest cancels its Reservation after the seventh day, but not later than 48 hours before the Starting Time of the Experience, then the Guest shall receive a Refund of 50% of the Experience Fees; and

(c)    Where a Guest cancels its Reservation within 48 hours of the Starting Time of the Experience, or does not show for the Experience, the Guest shall receive no refund.

H.3    Host Payments for Guest Cancellations.

(a)    Where a Guest cancels its Reservation no later than the close of business in the Reference City on the seventh day before the Date of the Experience, the Host shall receive no payment;

(b)    Where a Guest cancels its Reservation after the seventh day, but not later than 48 hours before the Starting Time of the Experience, then the Host shall 50% of the Experience Fees minus the Service Fees; and

(c)    Where a Guest cancels its Reservation within 48 hours of the Starting Time of the Experience, or does not show for the Experience, the Host shall be paid the Experience Fees minus the Service Fees.

I    DISPUTE RESOLUTION

I.1    Disputes Between Guests & Hosts.

Guests and Hosts submit to the eXpertLocal Dispute Resolution Policy found at Dispute Policy.

I.2    Disputes Between Members & eXpertLocal.

Disputes between Members & eXpertLocal shall be handled in accordance with the procedures set out in the General Conditions of these Terms.

J    ACCOUNT ACCESS USING THIRD-PARTY SERVICES

J.1    Registration & Login.

(a)    You can also register as Member on the Site, and access the Solution, by logging into your profile with certain third party services ("TPS") (including, but not limited to, Facebook);

(b)    As part of the functionality of the Solution you may connect your profile with a TPS by:

i    Providing your TPS login information to eXpertLocal through the Solution; or

ii    Allowing eXpertLocal to access your TPS in accordance with its terms & conditions of service; and

(c)    When connecting to the Solution using a TPS you warrant that you are not in breach any of its terms & conditions of service.

J.2    Ongoing Availability.

(a)    You agree that access to the Solution may be unavailable if the TPS becomes unavailable, and that you may lose functionality or content that is shared between the TPS and the Solution;

(b)    You may disconnect the connection between the Solution and the TPS at any time.

(c)    eXpertLocal has no relationship with any TPS and cannot guarantee the efficacy of any TPS connection.

J.3    Data from TPS.

Where you connect and or register you profile using a TPS, you authorise us to use data from that TPS to create your profile on the Site.

K    CONFIDENTIAL INFORMATION

K.1    eXpertLocal will keep the information that you submit confidential.

L    TERMINATION

L.1    Either party may end this Agreement at any time by written notice in accordance with these Terms.

M    GENERAL

M.1    Governing Law. New South Wales, Australia

M.2    Reference City. Sydney


SPECIAL CONDITIONS

1    EFFECT OF SPECIAL CONDITIONS

1.1    The parties may agree to any Special Conditions to this Agreement in writing. Where the parties make such Special Conditions those Special Conditions shall prevail over any inconsistency with any other provisions of this Agreement.

GENERAL CONDITIONS

1    RECITALS

1.1    The Customer wishes to access the Solution provided by the Provider.

1.2    The terms and conditions in this agreement govern the provision of the Solution to the Customer by the Provider.

2    INTERPRETATION

2.1    The following definitions apply in this document:

(a)    ABN means Australian Business Number.

(b)    ACN means Australian Company Number.

(c)    Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in the Reference City set out in item M of the Particulars.

(d)    Commencement Date means the date set out in this agreement.

(e)    Confidential Information means all information (whether or not it is described as confidential) in any form or medium concerning any past, present or future business, operations or affairs of either party, including, without limitation:

i    all technical or non-technical data, formulae, patterns, programs, devices, methods, techniques, plans, drawings, models and processes, source and object code, software and computer records;

ii    all business and marketing plans and projections, details of agreements and arrangements with third parties, and customer and supplier information and lists;

iii    all financial information, pricing schedules and structures, product margins, remuneration details and investment outlays;

iv    all information concerning any employee, customer, contractor, supplier or agent of the relevant party;

v    the party's policies and procedures; and

vi    all information contained in this document,

2.2    but excludes information that the other party can establish:
i    is known by or is in the other party's possession or control other than through a breach of this document and is not subject to any obligation of confidence; or

ii    is in the public domain other than by a breach of this document or any obligations of confidence.

(b)    Corporations Act means the Corporations Act 2001 (Cth).

(c)    Customer Data means data that is entered into the Solution by the Customer that forms part of its Intellectual Property.

(d)    Fees & Charges means the fees and charges as set out in item G of the Particulars.

(e)    Force Majeure means an event or cause beyond the reasonable control of the party claiming force majeure.  It includes each of the following, to the extent it is beyond the reasonable control of that party:
i    act of God, lightning, storm, flood, fire, earthquake or explosion cyclone, tidal wave, landslide, adverse weather conditions;

ii    act of public enemy, war (declared or undeclared), terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic;

iii    the effect of any change in applicable laws, orders, rules or regulations of any government or other competent authority; and

iv    embargo, inability to obtain necessary materials, equipment or facilities, or power or water shortage.

(f)    General Conditions means the terms and conditions set out in the section of this agreement entitled "General Conditions".

(g)    GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

(h)    Intellectual Property means all rights (present and future) conferred by common law, equity or statute (and all moral rights) connected with business names, computer software, confidential information, copyright, designs, domain names, formulas, inventions, knowhow, patents, trade marks, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic field, the benefit of any application to register such a right and the benefit of any renewal or extension of such a right.

(i)    Particulars means this agreement's details and variables set out in the section of this agreement entitled "Particulars".

(j)    Pricing    means the pricing set out in this agreement or as notified to the Customer in writing by the Provider from time-to-time.

(k)    Privacy Act means the Privacy Act 1989 (Cth).

(l)    Privacy Policy means the Privacy Policy found at the address in item B of the Particulars.

(m)    Solution means the solution described in item C of the Particulars.

(n)    Special Conditions means the terms and conditions set out in the section of this agreement entitled "Special Conditions".

(o)    Tax Invoice has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

2.3    Headings are only for convenience and do not affect interpretation.  The following rules apply unless the context requires otherwise:

(a)    The singular includes the plural and the opposite also applies.

(b)    If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.

(c)    A reference to a clause refers to clauses in this agreement.

(d)    A reference to legislation is to that legislation as amended, re enacted or replaced, and includes any subordinate legislation issued under it.

(e)    Mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included.

(f)    A reference to a party to this agreement or another agreement or document includes that party's successors and permitted substitutes and assigns (and, where applicable, the party's legal personal representatives).

(g)    A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.

(h)    A reference to information is to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets.

(i)    A reference to dollars or $ is to an amount in Australian currency.

3    APPLICATION

3.1    This agreement applies to use of and access to the Solution.

3.2    Where the Customer does not accept the terms and conditions of this agreement, the Customer must immediately cease using the Solution.

3.3    This agreement may be updated by the Provider at its absolute discretion from time-to-time, and unless stated otherwise by the Provider in writing, such updates shall come into effect for use of the Solution, at the commencement of the following quarter after the Customer receives notice of the update(s).

4    AGREEMENT

4.1    By using the Solution, the customer acknowledges and agrees to:

(a)    These Terms of Service; and

(b)    The Privacy Policy.

5    SOLUTION

5.1    The Solution is the product described in item C of the Particulars.

5.2    The Solution is only accessible to the Customer for the term set out in item C of the Particulars.

5.3    The Customer agrees and accepts that the Solution is:

(a)    hosted by the Provider and shall only be installed, accessed and maintained by the Provider, accessed using the internet or other connection to the Provider servers and is not available 'locally' from the Customer's systems; and

(b)    managed and supported exclusively by the Provider from the Provider servers and that no 'back-end' access to the Solution is available to the Customer unless expressly agreed in writing.

5.4    As a hosted and managed service, the Provider reserves the right to upgrade, maintain, tune, backup, amend, add or remove features, redesign, improve or otherwise alter the Solution.

5.5    The Provider shall not exercise its rights under clause 5.4 in a manner that would intentionally cause the Customer to lose access to Customer Data or fundamentally decrease the utility of the Solution to the Customer, other than in accordance with the terms of this agreement.

6    LICENSE

6.1    By accepting the terms and conditions of this agreement, the Customer is granted a limited, non-exclusive and revocable license to access the Solution for the duration of this agreement, in accordance with the terms and conditions of this agreement.

6.2    The Provider may issue the license to the Customer on the further terms or limitations set out in item C of the Particulars (including the number of users) as it sees fit.

6.3    The Provider may revoke or suspend the Customer's license(s) in its absolute discretion for any reason that it sees fit, including for breach of the terms and conditions in this agreement by the Customer or any of it's users.  The Provider will ordinarily advise the Customer of any suspension or revocation however it is under no obligation to do so.

7    USE

7.1    The Customer agrees that it shall only use the Solution for legal purposes and shall not use it to engage any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by the Provider in its discretion.

8    AUTHORISED USERS

8.1    The Customer shall authorise users to access the Solution in its absolute discretion. The Provider accepts no liability for access to Customer Data by users authorised by the Customer or using login details of users authorised by the Customer.

8.2    The Customer is solely responsible for the security of its username and password for access to the Solution.

8.3    The Customer is responsible for ensuring that users comply with this agreement in full and are liable for any breach of them.

9    CUSTOMER DATA

9.1    The Provider obtains no right, title or interest in Customer Data including any Intellectual Property found within it.  The Provider accepts no liability for the content of Customer Data.

9.2    The Customer is responsible for the accuracy, quality and legality of Customer Data and the Customer's acquisition of it, and the users that create, access and/or use Customer Data.

9.3    Despite clause 9.1 the Provider shall be authorised to permanently delete Customer Data where outstanding Fees & Charges remain unpaid in accordance with clauses 11 and 12.

9.4    The Provider shall not access, use, modify or otherwise deal with Customer Data except where required by compulsion of law or upon the Customer's authority (such as to provide support for the Solution).

10    PRIVACY

10.1    The Provider maintains the Privacy Policy in compliance with the provisions of the Privacy Act for data that it collects about the Customer and other customers.  The Provider agrees to abide by the Privacy Act regardless of whether the Provider is legally bound by that act.

10.2    The Privacy Policy does not apply to how the Customer handles Customer Data.  It is the Customer's responsibility to meet the obligations of the Privacy Act by implementing a Privacy Policy in accordance with law.

10.3    The Provider makes no warranty as to the suitability of the Solution in regards to the Customer's privacy obligations at law or contract, and it is the Customer's responsibility to determine whether the Solution is appropriate for the Customer's circumstances.

11    FEES & CHARGES

11.1    The Customer agrees to pay all Fees & Charges as and when they fall due and to the extent permissible by law. Fees & Charges are non-cancellable and/or non-refundable once ordered or paid.

11.2    The Customer agrees to pay the Fees & Charges set out in item G of the Particulars for the Solution.

11.3    The Provider may introduce new services and/or Fees & Charges by giving the Customer written notice of their availability and applicability.

11.4    The Provider shall notify the Customer of any changes to existing Fees & Charges no less than the time period for notice in item G of the Particulars.  The Provider reserves the right to change the Fees & Charges in item G of the Particulars at any time at its absolute discretion.

11.5    If the Customer does not accept a change to Fees & Charges, the Customer must notify the Provider before the expiry of the time period for notice in item G of the Particulars

11.6    The Provider may revoke or suspend the Customer's license to access the Solution for unpaid Fees & Charges without liability.

11.7    Where the Provider:

(a)    is required to perform any services for the Customer outside of what is set out in this agreement or otherwise in writing; and

(b)    is subject to delays caused by changes or complexities outside of its control (and not caused by its breach of this agreement); then

(c)    the Customer agrees that the Provider shall be entitled to charge the Customer an additional amount that is reasonable for the service performed.

12    INVOICING & PAYMENTS

12.1    The Provider shall issue the Customer a Tax Invoice for all Fees & Charges for which GST applies.

12.2    The terms of payment set out in item G of the Particulars shall apply.

12.3    Where Fees & Charges are payable:

(a)    in advance, no services shall be commenced or provided unless a Tax Invoice has been issued and paid in full;

(b)    in arrears, the Provider reserves the right to cease work and not perform any further services until the Tax Invoice for those Fees & Charges have been paid.

12.4    Should the Customer dispute a Tax Invoice, the Customer must notify the Provider of the disputed item within 5 Business Days of the date of the Tax Invoice.  The Customer must pay the amount of the Tax Invoice not in dispute within the prescribed payment period.

12.5    Overdue Tax Invoices shall accrue interest at the rate of 1.5% per month, or in default, the maximum rate of penalty interest prescribed under law.

12.6    The Customer authorises the Provider to use the Customer's information for the purposes of obtaining a credit assessment or to otherwise make investigations as to the Customer's payment history.

12.7    Refunds are provided for in accordance with item I of the Particulars or as required by law.

13    DATA

13.1    Security.  The Provider takes the security of the Solution and the privacy of its users very seriously.  The Customer agrees that the Customer shall not do anything to prejudice the security or privacy of the Provider's systems or the information on them.

13.2    Transmission.  The Provider shall do all things reasonable to ensure that the transmission of data occurs according to accepted industry standards.  It is up to the Customer to ensure that any transmission standards meet the Customer's operating and legal requirements.

13.3    Storage.  The Provider may limit the amount of data that the Customer stores in the Solution, and shall advise the Customer of such.  Data that is stored with the Provider shall be stored according to accepted industry standards.

13.4    Backup.  The Provider shall perform backups of its entire systems in as reasonable manner at such times and intervals as is reasonable for its business purposes.  The Provider does not warrant that it is able to backup or recover specific Customer Data from any period of time unless so stated in writing by the Provider.

13.5    Transfer & Return.  Upon request, the Provider shall export all the Customer Data and return same to the Customer by way of physical media or download, as is appropriate, and the Customer shall pay Fees & Charges and reimburse the Provider for any

14    ACCESS

14.1    Solution.  By accepting the terms of this agreement the Customer agrees that the Provider shall provide access to the solution to the best of its abilities, however it accepts no responsibility for ongoing access to the Solution.

15    INTELLECTUAL PROPERTY

15.1    Trademarks.  The Provider has moral & registered rights in its trademarks and the Customer shall not copy, alter, use or otherwise deal in the marks without the prior written consent of the Provider.

15.2    Proprietary Information.  The Solution may use software and other proprietary systems and Intellectual Property for which the Provider has appropriate authority to use, and the Customer agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally.  The Customer warrants that it shall not infringe on any third-party rights through the use of the Solution.

15.3    Solution.  The Customer agrees and accept that the Solution is the Intellectual Property of the Provider and the Customer further warrants that by using the Solution the Customer will not:

(a)    copy the Solution or the services that it provides for the Customer's own commercial purposes; and

(b)    directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in the Solution or any documentation associated with it.

15.4    Content.  All content (with the exception of Customer Data) remains the Intellectual Property, including (without limitation) any source code, ideas, enhancements, feature requests, suggestions or other information provided by the Customer or any other party with respect to the Solution.

16    CONFIDENTIALITY

16.1    The information and classes of information in item H of the Particulars are Confidential Information for the purposes of this agreement.

16.2    Each party acknowledges and agrees that:

(a)    the Confidential Information is secret, confidential and valuable to the disclosing party (Discloser);

(b)    it owes an obligation of confidence to the Discloser concerning the Confidential Information;

(c)    it must not disclose the Confidential Information to a third party except as permitted in this agreement;

(d)    all Intellectual Property rights remain vested in the Discloser but disclosure of Confidential Information does not in any way transfer or assign any rights or interests in the Intellectual Property to the receiving party; and

(e)    any breach or threatened breach by the receiving party of an obligation under this agreement may cause the Discloser immediate and irreparable harm for which damages alone may not be an adequate remedy.  Consequently the Discloser has the right, in addition to other remedies available at law or in equity, to seek injunctive relief against the receiving party (and its agents, assigns, employees, officers and directors, personally) or to compel specific performance of this clause.

16.3    A party must notify the Discloser in writing, giving full details known to it immediately, when it becomes aware of:

(a)    any actual, suspected, likely or threatened breach by it of clause 16.1;

(b)    any actual, suspected, likely or threatened breach by any person of any obligation in relation to the Confidential Information; or

(c)    any actual, suspected, likely or threatened theft, loss, damage, or unauthorised access, use or disclosure of or to any Confidential Information.

16.4    The receiving party must promptly take all steps that the Discloser may reasonably require and must co-operate with any investigation, litigation or other action of the Discloser or of a related body corporate if there is:

(a)    any actual, suspected, likely or threatened breach of a term of this agreement; or

(b)    any theft, loss, damage or unauthorised access, use or disclosure of or to any Confidential Information that is or was in its possession or control.

17    LIABILITY & INDEMNITY

17.1    The Customer agrees that it uses the Solution at its own risk.

17.2    The Customer acknowledges that the Provider is not responsible for the conduct or activities of any user and that the Provider is not liable for such under any circumstances.

17.3    The Customer agrees to indemnify the Provider for any loss, damage, cost or expense that the Provider may suffer or incur as a result of or in connection with the Customer's use of or conduct in connection with the Solution, including any breach by the Customer of these Terms.

17.4    In no circumstances will the Provider be liable for any direct, incidental, consequential or indirect damages, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the Customer's access to, or use of, or inability to use the Solution or any content,or in any way relating to an experience itself (or the provision or non-provision of an experience), whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not the Provider knew or should have known of the possibility of such damage, to business interruption of any type, whether in tort, contract or otherwise.

17.5    Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted or modified.  Apart from those that cannot be excluded, the Provider and the Provider's related entities exclude all conditions and warranties that may be implied by law.  To the extent permitted by law, the Provider's liability for breach of any implied warranty or condition that cannot be excluded is restricted, at the Provider's option to:

(a)    the re-supply of services or payment of the cost of re-supply of services; or

(b)    the replacement or repair of goods or payment of the cost of replacement or repair.

18    BREACH

18.1    Where a party is in breach of this agreement, the other party may issue a written notice (Breach Notice) requiring the party in breach that must set out:

(a)    the nature of the breach;

(b)    the provisions of the agreement that are alleged to have been breached;

(c)    a reasonable timeframe to remedy the breach in not less than 10 Business Days; and

(d)    the action required to remedy the breach.

18.2    Where a party issues a compliant Breach Notice in accordance with clause 18.1, the receiving party shall be required to respond and/or remedy the breach as so set out in the Breach Notice.  Failure to respond in writing setting out:

(a)    the steps taken to remedy the breach; or

(b)    why the party believes it is not in breach as put forward in the Breach Notice,

(c)    shall not in itself confirm the alleged breach but shall be in itself a breach of this agreement.

18.3    Failure to remedy a breach set out in a Breach Notice shall be a material breach of this agreement (Material Breach).

19    TERMINATION

19.1    Breach.  Where a party is in Material Breach of this agreement, the other party may terminate this agreement by giving written notice of termination, which shall become effective 5 Business Days after the date of the notice.

19.2    Cancellation or Non-Renewal.  The Customer may terminate this agreement with no less than the period of notice set out in item L of the Particulars.

19.3    Insolvency.  Either party may terminate this agreement immediately by notice, if either party:

(a)    stops or suspends or threatens to stop or suspend payment of all or a class of its debts;

(b)    is insolvent within the meaning of section 95A of the Corporations Act;

(c)    fails to comply with a statutory demand (within the meaning of section 459F(1) of the Corporations Act) unless:

(d)    the debt to which the statutory demand relates is discharged within 15 Business Days of the date of the failure; or

(e)    the party demonstrates to the satisfaction of the other party (acting reasonably) that it is able to pay all its debts as and when they become due and payable;

(f)    has an administrator appointed in respect of it;

(g)    has a controller within the meaning of section 9 of the Corporations Act or similar officer appointed to the whole or a substantial part of its assets or undertaking and that controller or similar officer is not removed within 15 Business Days of the appointment;

(h)    has an order made or a resolution passed for its winding up or dissolution or it enters into an arrangement, compromise or composition with or assignment for the benefit of its creditors or a class of them;

(i)    has any security enforced over, or a distress, execution or other similar process levied or served against, the whole or a substantial part of its assets or undertaking; or

(j)    is subject to any event which, under the law of any relevant jurisdiction, has an analogous or equivalent effect to any of the events listed above.

19.4    Expiry or termination of this agreement is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of this agreement up to the date of expiry or termination.

19.5    The rights and obligations under the relevant provisions of clauses 8, 9, 10, 11, 12, 15, 16, 17, 18, 19, 20, 21, 22 and 23 survive termination of this agreement.

20    DISPUTES

20.1    For any dispute between the Provider and the Customer, the following process shall apply:

(a)    Negotiation.  If there is a dispute between the parties relating to or arising out of this agreement, then within 5 Business Days of a party notifying the other party of a dispute, senior representatives from each party must meet (or if discuss directly via the telephone or internet) and use all reasonable endeavours acting in good faith to resolve the dispute by joint discussions;

(b)    Mediation.  If the dispute between the parties relating to or arising out of this agreement is not resolved within five Business Days of notification of the dispute under Clause 20.1, the parties must agree to submit the dispute to mediation, administered by lawyers engaged in alternative dispute resolution;

(c)    Arbitration.  If the dispute between the parties relating to or arising out of this agreement is not settled by mediation under Clause 20.2, either party may by written notice to the other refer the dispute to arbitration administered by the Institute of Arbitrators Australia.  The arbitrator will be agreed between the parties from a panel suggested by the President of the Institute of Arbitrators Australia or failing agreement, an arbitrator will be appointed by the President of the Institute of Arbitrators Australia; and

(d)    Court proceedings.  A party may not commence court proceedings in relation to a dispute relating to or arising out of this agreement until it has exhausted the procedures in this clause 20.4 unless the party seeks appropriate injunctive or other interlocutory relief to preserve property or rights or to avoid losses that are not compensable in damages.

20.2    Clause 20.1 does not apply to disputes between Customers using the Solution.

21    FORCE MAJEURE

21.1    If a party is prevented in whole or in part from carrying out its obligations under this agreement as a result of Force Majeure, it will promptly notify the other party accordingly.  The notice must:

(a)    specify the obligations and the extent to which it cannot perform those obligations;

(b)    fully describe the event of Force Majeure;

(c)    estimate the time during which the Force Majeure will continue; and

(d)    specify the measures proposed to be adopted to remedy or abate the Force Majeure.

21.2    Following a notice of Force Majeure in accordance with clause 21.1 and while the Force Majeure continues, the obligations which cannot be performed because of the Force Majeure will be suspended, other than obligations to pay money that is due and payable.

21.3    The party that is prevented from carrying out its obligations under this agreement as a result of Force Majeure must remedy the Force Majeure to the extent reasonably practicable and resume performance of its obligations as soon as reasonably possible.

21.4    The party that is prevented from carrying out its obligations under this agreement as a result of Force Majeure must take all action reasonably practicable to mitigate any loss suffered by the other party as a result of the party's failure to carry out its obligations under this agreement.

21.5    The term of this agreement will not be extended by the period of Force Majeure.

22    ELECTRONIC COMMUNICATION, AMENDMENT AND ASSIGNMENT

22.1    The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.

22.2    Each party to this agreement agrees to the clauses in the Particulars and the Special Conditions.  The Particulars, Special Conditions and the General Conditions form a single legal agreement.  To the extent that the Particulars or the Special Conditions are inconsistent with the General Conditions, the terms of the Particulars will prevail.   To the extent that the Special Conditions are inconsistent with the Particulars, the Special Conditions will prevail.

22.3    The Customer can direct notices, enquiries, complaints and so forth to the Provider as set out in this agreement.  The Provider will notify the Customer of a change of details from time-to-time.

22.4    The Provider will send the Customer notices and other correspondence to the details that the Customer submits to the Provider, or that the Customer notifies the Provider of from time-to-time. It is the Customer's responsibility to update its contact details as they change.

22.5    A consent, notice or communication under this agreement is effective if it is sent as an electronic communication unless required to be physically delivered under law.

22.6    Notices must be sent to the parties' contact details as specified in item A of the Particulars.

22.7    The parties to this agreement may only assign or otherwise create an interest in their rights under this document with the written consent of each other party.

23    GENERAL

23.1    Disclaimer.  Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this agreement.

23.2    Relationship.  The relationship of the parties to this agreement does not form a joint venture or partnership.

23.3    Waiver.  No clause of this agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.

23.4    Further Assurances.  Each party must do anything necessary (including executing agreements and documents) to give full effect to this agreement and the transaction facilitated by it.

23.5    Governing Law.  This agreement is governed by the laws of the state set out in item M of the Particulars.  Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.


23.6    Liability for Expenses.  Each party must pay its own expenses incurred in negotiating, executing, stamping and registering this agreement.

23.7    Inconsistency. If this agreement is inconsistent with any other document or agreement between the parties, this document prevails to the extent of the inconsistency.

23.8    Counterparts.  This agreement may be executed in any number of counterparts.  All counterparts together will be taken to constitute one instrument.

23.9    Time.  Time is of the essence in this agreement.

23.10    Severability.  Any clause of this agreement, which is invalid or unenforceable is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this agreement.

END GENERAL CONDITIONS