iinsight Terms and Conditions for MYP Corporation
(Terms and Conditions)
1. General Terms
1.1 These Terms and Conditions govern the provision and use of the Software and services offered by Be Software International Pty Limited ACN 108 074 746 (trading as “iinsight”) (MYP Corporation) to the Customer as specified in the Service Agreement (collectively the Services).
1.2 These Terms and Conditions apply in addition to and do not derogate from any other terms and conditions that expressly apply to the use of the Website, or any other product or services accessed or supplied from, via or by MYP Corporation or the Website.
1.3 In the event of any inconsistency between the terms of these Terms and Conditions and the Service Agreement, the terms of the Service Agreement will prevail to the extent of the inconsistency.
1.4 In the event of any inconsistency between these Terms and Conditions and any other terms and conditions on the Website which may apply, the terms most favorable to MYP Corporation will prevail to the extent of the inconsistency.
2. Definitions and Interpretation
2.1 In these Terms and Conditions, unless the context indicates otherwise:
(a) Agreement has the meaning given to that term in clause 3.1 of these Terms and Conditions.
(b) Australian Consumer Law means the Australian Consumer Law contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth) (Australia).
(c) Business Day means a day that is not a Saturday, Sunday or a public holiday in Australia.
(d) Business Hours means the hours from 9.00am (AEST) to 5.00pm (AWST) on a Business Day.
(e) Charges has the meaning given to that term in clause 5.1.4 of these Terms and Conditions.
(f) Confidential Information means all information and matters (whether oral or written or electronically stored) which is not publicly available relating to any one or more of MYP Corporation and the affairs and businesses of MYP Corporation including without limitation:
(i) the Services and any associated software;
(ii) the Software;
(iii) financial information;
(iv) purchaser information, including matters and affairs and any compilation of past, existing or prospective purchasers, or related information about actual or prospective purchasers;
(v) information about or relating to MYP Corporation;
(vi) intellectual property of MYP Corporation;
(vii) any trade secrets, ideas, know-how, concepts or information relating to the operation of any business or operation of MYP Corporation, the technology or financial position, organisation or arrangements or any dealings, investments, transactions or affairs of MYP Corporation including, without limitation, marketing methods and supply arrangements of MYP Corporation;
(viii) third party information of a confidential nature, in MYP Corporation’s possession, power or control;
(ix) the terms of, and arrangements contemplated by, the Agreement.
(g) Customer means the customer identified in the Service Agreement.
(h) Customer Data means all electronic data or information provided by Customer to, or input, stored or transmitted by or on behalf of the Customer through the Services, including data uploaded by the Customer to the Software.
(i) Customer Material means any material, Customer Data, content or documentation provided by the Customer to MYP Corporation for use with the Services.
(j) Data Notice has the meaning given to that term in clause 5.8 of these Terms and Conditions.
(k) Defaulting Party has the meaning given to that term in clause 20.2 of these Terms and Conditions.
(l) Dispute has the meaning given to that term in clause 18.1 of these Terms and Conditions.
(m) Dispute Notice has the meaning given to that term in clause 18.3 of these Terms and Conditions.
(n) Domain Name means https://www.iinsight.biz/au/terms-and-conditions/.
(o) Effective Date means the earlier of the following dates:
(i) the date the Customer accepts the Service Agreement; or
(ii) the date the Customer first accesses the Services.
(p) Expenses has the meaning given to that term in clause 13.1 of these Terms and Conditions.
(q) Fees means the total of all amounts payable by the Customer to MYP Corporation under the Service Agreement and includes the Monthly Service Fee, any Implementation Fee, fees for Professional Services, Charges together with all other amounts incurred and payable by the Customer under the Service Agreement.
(r) Force Majeure Event means, in respect of a party, any event or circumstance beyond that party’s reasonable control which prevents or materially hinders the performance of its obligations under the Agreement, including fire, storm, flood, earthquake, explosion, war, invasion, rebellion, sabotage, epidemic, labour dispute or shortage, failure or delay in transportation, or any act or omission (including any law, regulation, disapproval or failure to approve) of any third person not within the control of that party (including, but not limited to, subcontractors, customers, governments or government agencies).
(s) GST means goods and services tax or similar value added tax levied or imposed in Australia pursuant to the GST Law or otherwise on a supply.
(t) GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth) (Australia).
(u) GST Law has the same meaning as in the GST Act.
(v) Implementation Fee means any one-off or non-recurring fees specified in the Service Agreement, including any implementation, onboarding or setup fees.
(w) Initial Term means any minimum subscription period set out in the Service Agreement.
(x) Insolvent means:
(i) in the case of a natural person, that person becoming an “insolvent under administration” as that term is defined in the Corporations Act 2001 (Cth);
(ii) in the case of a corporation, that corporation becoming:
a. an “externally-administered body corporate” as that term is defined in the Corporations Act 2001 (Cth);
b. unable to pay its debts as and when they fall due;
c. insolvent or deemed to be insolvent under the Corporations Act 2001 (Cth); or
d. subject to a scheme of arrangement or official management pursuant to the Corporations Act 2001 (Cth); or
(iii) in any other case, any event analogous to any of the foregoing.
(y) Intellectual Property means any industrial or intellectual property rights, whether registrable or not, including all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trade marks, brand names, business names, domain names and other forms of intellectual property in any part of the world, and including applications for the registration of any such rights and any improvements, enhancements or modifications to such registrations, including provided under the Copyright Act 1968 (Cth) (Australia), Designs Act 2003 (Cth) (Australia), Patents Act 1990 (Cth) (Australia), Trade Marks Act 1995 (Cth) (Australia) or any other Australian legislation, present or enacted in the future, pertaining to rights of intellectual property, and all other proprietary rights and all other intellectual property defined in Article 2 of the Convention establishing the World Intellectual Property Organisation (July 1967).
(z) Malicious Code means any harmful program, code or device that, when operating as intended, is designed to cause:
(i) corruption, unauthorised access to, or loss of data stored or processed by the Services; or
(ii) the disruption, disabling or cessation of processing of the Services or any related hardware or software.
(aa) Minimum Licence means the minimum number of Licences set out in the Service Agreement.
(bb) Monthly Service Fee means the sum of monthly fees payable for each of the Services. The initial Monthly Service Fee is specified in the Service Agreement.
(cc) Monthly Fee Invoice means an invoice issued by MYP Corporation to the Customer in respect of the Monthly Service Fee payable for a completed calendar month.
(dd) MYP Corporation has the meaning given to that term in clause 1.1 of these Terms and Conditions.
(ee) Non-Defaulting Party has the meaning given to that term in clause 20.2 of these Terms and Conditions.
(ff) Notice Period has the meaning given to that term in clause 21.2 of these Terms and Conditions.
(gg) Objectionable Material means any material referred to in clauses 10.3.4, 10.3.5 or 10.3.6 of these Terms and Conditions.
(hh) Personal Information means the definition of that term that applies to the Customer having regard to the jurisdiction in which the Services are provided or used, including:
(i) in relation to Australia, has the same meaning given to the term by the Privacy Act 1988 (Cth) the Privacy Act; and
(ii) in any other case, information or an opinion (including information or an opinion forming part of a database), whether or not true, and whether recorded in a material form or not about an individual whose identity is apparent, or can reasonably be ascertained from the information or opinion, which a party to the Agreement receives or learns from any source including as a consequence of or in the provision of the Services in the performance of the obligations of that party under the Agreement.
(ii) Price Adjustment Notice Period has the meaning given to that term in clause 5.3 of these Terms and Conditions.
(jj) Privacy Act means the Privacy Act 1988 (Cth) (Australia) and the Personal Information Protection and Electronic Documents Act 2000 (Canada) including the Digital Privacy Act S4.
(kk) Privacy Policy means the privacy policy of MYP Corporation that applies to the Customer having regard to the jurisdiction in which the Services are provided or used, as published on MYP Corporation’s website from time to time, including:
(i) in relation to Australia, the privacy policy available at https://www.iinsight.biz/au/privacy-policy/; or
(ii) in relation to Canada, the privacy policy available at https://www.iinsight.biz/ca/privacy-policy/.
(ll) Privacy Laws means, to the extent applicable:
(i) the Privacy Act; and
(ii) any other legislation, principles, industry codes and policies in Australia and Canada relating to data privacy or the collection, use, storage or granting of access rights to Personal Information.
(mm) Professional Service means any services provided by MYP Corporation outside the scope of the Monthly Service Fee, including software engineering developments, training and data migration services, whether provided under an agreed Quotation or as otherwise specified in the Service Agreement.
(nn) Quotation means a formal statement setting out the estimated cost of a particular Professional Service.
(oo) Reasonable Use means use of the Services by the Customer that is consistent with the size and breadth of the Customer’s business and does not exceed the level of usage or demand on MYP Corporation’s resources reasonably expected of a business of that size. Whether the Customer’s use of the Services complies with Reasonable Use will be determined by MYP Corporation (acting reasonably), having regard to metrics including:
(i) storage required to host and back up data;
(ii) sales transactions per calendar month;
(iii) API (application programming interface) calls per five (5) minute period;
(iv) bandwidth usage per twenty-four (24) hour period; and
(v) locations, number of Users, and/or customer volumes.
(pp) Renewal Notice means a written notice given by MYP Corporation to the Customer under clause 20 of these Terms and Conditions advising of the automatic renewal of the Subscription unless cancelled.
(qq) Renewal Period means the period set out in the Service Agreement by which the Subscription shall renew.
(rr) Service Agreement means the service agreement between MYP Corporation and the Customer, which incorporates these Terms and Conditions.
(ss) Services has the meaning given to that term in clause 1.1 of these Terms and Conditions.
(tt) Software means the rehabilitation case management system known as iinsight, together with any add-on modules specified in the Service Agreement and subscribed to by the Customer.
(uu) Term means the term of the Agreement as determined in accordance with clause 3 of these Terms and Conditions.
(vv) Termination Notice Period has the meaning given to that term in clause 20.1 of these Terms and Conditions.
(ww) Terms and Conditions means these Terms and Conditions.
(xx) Territory means the country in which the Customer’s principal place of business is located, as specified in the Service Agreement.
(yy) User means an individual authorised by the Customer, and approved by MYP Corporation, to access and use the Services in accordance with the Agreement.
(zz) Webpage means the webpage accessible through the Domain Name.
(aaa) Website means the website operated by MYP Corporation and accessible at https://www.iinsight.biz/au/, including any associated webpages made available through that website.
2.2 Interpretation
In these Terms and Conditions, unless the context indicates otherwise:
(a) a reference to a party to an agreement or document includes that party’s executors, administrators, successors and permitted assigns;
(b) a reference to a clause, schedule or annexure is a reference to a clause of, or schedule or annexure to these Terms and Conditions;
(c) a reference to an agreement or document (including these Terms and Conditions) is to the agreement or document as amended, supplemented, novated or replaced;
(d) a reference to legislation or to a provision of legislation includes a consolidation, amendment, re-enactment or replacement of it and a regulation or other instrument issued under it;
(e) the singular includes the plural and vice versa;
(f) a gender includes all genders;
(g) a reference to a person includes a firm, body corporate, association, trust, partnership, government or governmental body or other legal entity;
(h) where a word or phrase is defined in these Terms and Conditions, other grammatical forms of that word or phrase have a corresponding meaning;
(i) headings in these Terms and Conditions are for convenience only and do not affect its interpretation;
(j) neither these Terms and Conditions nor any part of it is to be construed against a party on the basis that the party or its lawyers were responsible for its drafting or because a party relies on these Terms and Conditions or any part of it to protect itself;
(k) a reference to time is to Sydney time;
(l) a reference to a body, whether statutory or not, which ceases to exist or whose powers or functions are transferred to another body is a reference to the body that replaces it or that substantially succeeds that body;
(m) any agreement, representation, warranty or indemnity by two or more parties (including where two or more persons are included in the same defined term) binds them jointly and severally;
(n) any right, entitlement, benefit, agreement, representation, warranty or indemnity in favour of two or more parties (including where two or more persons are included in the same defined term) is for the benefit of them jointly and severally;
(o) a reference to dollars or $ is to an amount in Australian currency unless denominated otherwise;
(p) a reference after the words “include” or “for example” or similar expressions does not limit what else is included; and
(q) a party which is a trustee is bound both personally and in its capacity as a trustee.
3. Term
3.1 On and from the Effective Date, these Terms and Conditions constitute a legally binding agreement, together with the Service Agreement, between MYP Corporation and the Customer (Agreement). Subject to clause 3.2, the Agreement will continue until terminated in accordance with clause 20 of these Terms and Conditions.
3.2 The minimum subscription term for the Services is the Initial Term. At the expiry of the Initial Term, the Agreement will continue until terminated in accordance clause 20 of these Terms and Conditions.
4. Services
Provision of Services
4.1 In consideration of the Customer paying the Fees and otherwise complying with its obligations under the Agreement, MYP Corporation agrees to provide the Services to the Customer during the Term subject to the Agreement.
4.2 MYP Corporation must perform the Services in a professional manner in accordance with industry-accepted professional standards. MYP Corporation will not however be liable for any delay in the performance of Services, non-performance of the Services and/or failure of, or defect in, the Services to the extent that such delay, non-performance, failure or defect is caused by or is attributable to the Customer or any third party.
Customer Use of Services
4.3 The Customer acknowledges and agrees that:
4.3.1 the Services are subscribed to or purchased as they exist at the Effective Date, and are not contingent on the provision of any future functionality, features or enhancements;
4.3.2 the Customer has not relied on, and shall have no claim in relation to, any statement (whether oral or written, public or otherwise) made by MYP Corporation about future functionality or features, except to the extent such statements form part of the express terms of the Agreement;
4.3.3 MYP Corporation may, from time to time, offer additional or enhanced functionality in connection with the Services, which may be subject to additional Fees, provided that nothing in this clause limits any rights or remedies that the Customer may have under the Australian Consumer Law; and
4.3.4 MYP Corporation may make changes or updates to the functionality and/or documentation of the Services from time to time, and will promptly advise the Customer in writing of any such changes or updates.
4.4 MYP Corporation, or a third party designated by MYP Corporation, may during Business Hours and on reasonable advance notice describing the purpose and scope of the request, in a manner that does not unreasonably interfere with the business operations of the Customer, audit the Customer’s use of or access to the Services to verify compliance by the Customer with the provisions of the Agreement.
4.5 The Customer is responsible for:
4.5.1 all activities that occur under User accounts;
4.5.2 maintaining the security and confidentiality of all User usernames and passwords; and
4.5.3 notifying MYP Corporation immediately of any unauthorised use of any Service username, password, account or any other known or suspected breach of security.
5. Service Fees
5.1 Subject to clause 5.11, the Customer must pay to MYP Corporation the Fees at the times and in the manner set out as follows:
5.1.1 the Monthly Service Fee is payable in arrears, and:
5.1.1.1 an invoice will be issued within 2 days of the end of each calendar month, or at such other time as may be agreed from time to time between the Parties; and
5.1.1.2 within 7 days of issue of the invoice, the amount stipulated in the invoice will be deducted from the Customer’s credit card or direct debit account, whichever has been provided by Customer;
5.1.2 the Implementation Fee is payable in accordance with the payment terms where specified in the Service Agreement or, if not specified, upon invoice;
5.1.3 any fees for Professional Services provided pursuant to an agreed Quotation, which will be invoiced upon receipt of the signed Quotation, will be deducted from the Customer’s nominated credit card or direct debit account (whichever has been provided by Customer) within 5 to 7 days of issue of the invoice. Upon receipt of payment a commencement date will be confirmed and the required resources will be allocated accordingly, unless alternate arrangements have been agreed in writing between the Customer and MYP Corporation;
5.1.4 usage-based charges (e.g., SMS charges) will be invoiced in arrears (Charges). The Customer must pay such invoiced Charges within 7 days of receipt of each tax invoice; and
5.1.5 all applicable taxes, levies, duties and charges (including any sales, use, value-added, import, export or similar taxes) imposed in connection with the Services, must be paid at the same time as the Fees set out in the relevant tax invoice.
5.2 Where the Initial Term is more than 12 months, the Monthly Service Fees are subject to indexation and shall be varied accordingly. The relevant adjustment shall be:
5.2.1 applied from the first and each subsequent anniversary of the commencement of the Term; and
5.2.2 determined by multiplying the Monthly Service Fees by the percentage increase or change in the Australian Consumer Price Index published for the 12 months ended on the date which is 3 months immediately preceding the relevant adjustment or by 2% (whichever amount is higher).
5.3 MYP Corporation may, by giving the Customer at least 14 days’ written notice (Price Adjustment Notice Period), adjust the Monthly Service Fee in any of the following circumstances:
5.3.1 where there is an increase in the costs incurred by MYP Corporation in providing the Services, to the extent those costs form part of the Monthly Service Fee;
5.3.2 where the Initial Term is less than 12 months, as part of an annual adjustment of the Monthly Service Fee, with effect from 1 July in any year;
5.3.3 where any industry resolution, change in law or regulation results in an increase in the cost to MYP Corporation of providing the Services; or
5.3.4 at the start of each Renewal Period.
5.4 If the Customer does not agree to the adjusted Monthly Service Fee, the Customer may terminate the Agreement without penalty by providing written notice to MYP Corporation before the end of the Price Adjustment Notice Period. The Customer’s continued use of the Services after the Price Adjustment Notice Period will be deemed to be acceptance of the amended Monthly Service Fee.
5.5 The Customer acknowledges and agrees that the Subscription Fee is based on (and calculated in accordance with) the Minimum Licence. If the Customer’s usage exceeds the Minimum Licence at any time during the Term, the Customer shall pay an amount proportionate to the increase in usage, calculated from the point in time at which the Minimum Licence was exceeded.
5.6 The Customer acknowledges and agrees that if its usage does not meet the Minimum Licence there will be no refund or downwards adjustment to the Subscription Fee.
5.7 Customer is responsible for notifying MYP Corporation of changes to its billing contacts.
5.8 Any Fees not paid by the due date will be subject to a late payment charge equal to 1.5% per month. If any Fees are overdue by more than 30 days, MYP Corporation may suspend the Services without liability until paid. All costs incurred by MYP Corporation due to late payment of Fees and debt collection must be paid by the Customer to MYP Corporation.
5.9 Except to the extent required by the Australian Consumer Law, Fees are non-refundable. Nothing in these Terms and Conditions purports to exclude, restrict or modify any non-excludable rights under the Australian Consumer Law.
5.10 Subject to clause 5.11, all payments required to be made by the Customer under the Agreement must be made free of any set-off, or counterclaim and without deduction or withholding, unless agreed to by MYP Corporation in writing or as required by law.
5.11 In the event of the Customer disputing an invoice for Fees and/or Charges, the Customer must make payment in respect of any undisputed amount by the specified due date and raise a dispute with MYP Corporation as soon as practicable in accordance with clause 18.
5.12 Where the Agreement is terminated by either party, the Customer may provide written notice to MYP Corporation (Data Notice) for MYP Corporation to provide a copy of any Customer Data held by MYP Corporation to the Customer in the format elected by MYP Corporation within thirty (30) days of the Data Notice and at a fee specified in writing by MYP Corporation to the Customer within seven (7) days of the Data Notice.
6. Marketing and Promotion
6.1 From time to time, MYP Corporation may ask the Customer if they wish to participate in promotional or marketing activities, which may include press releases, case studies and advertising campaigns. Participation in any such activities is at the sole discretion of the Customer.
7. Archiving of Cases
7.1 MYP Corporation may archive a case only where the Customer has made a direct written request to do so.
8. Service Levels and Support
8.1 Subject to the terms of the Agreement, MYP Corporation will use commercially reasonable efforts to maintain the Services in accordance with the “Standard” service levels described in the “Service Level Agreement” detailed in the Service Agreement. For clarity, no additional support or maintenance policies published by MYP Corporation, nor any other contractual support terms, will apply to the Agreement unless expressly agreed in writing by both parties.
9. Force Majeure
9.1 Neither party is liable to the other party in respect of the results of any delay or failure to perform its obligations pursuant to the Agreement if the delay or failure is caused by a Force Majeure Event.
9.2 The performance of the obligations of a party will be suspended for the period of a Force Majeure Event.
9.3 If a delay or failure of MYP Corporation to perform the obligations of MYP Corporation under the Agreement due to a Force Majeure Event exceeds forty-five (45) Business Days, the Customer may immediately terminate the Agreement on providing notice in writing to MYP Corporation.
9.4 If the Agreement is terminated pursuant to this clause 9, MYP Corporation must refund moneys previously paid by the Customer pursuant to the Agreement for Services not yet provided by MYP Corporation to the Customer.
10. Access and Reasonable Use
10.1 Subject to the terms of the Agreement, MYP Corporation grants the Customer a non-exclusive, non-transferable licence during the Term for the Customer and its Users to access and use the Software.
10.2 The Customer must use the Software in accordance with Reasonable Use.
10.3 The Customer must not:
10.3.1 sublicense, rent, lease, assign or permit third parties (other than Users) to access the Software;
10.3.2 reverse engineer or attempt to derive the source code;
10.3.3 use the Software to build a competing product;
10.3.4 send unsolicited commercial messages in contravention of applicable law;
10.3.5 send or store material that is infringing, obscene, threatening or otherwise unlawful, including material that is harmful to children or infringes third-party privacy rights;
10.3.6 send or store any Malicious Code;
10.3.7 interfere with or disrupt the integrity, security or performance of the Software or any data contained in the Software (other than Customer Data); or
10.3.8 attempt to gain unauthorised access to the Software or its related systems or networks.
10.4 The Customer must ensure that its Users do not submit any Objectionable Material.
10.5 MYP Corporation may adopt rules governing permitted and appropriate use of the Software and may update those rules from time to time by publishing them on its website. The Customer and its Users will be bound by any such rules.
10.6 MYP Corporation may remove any Customer Data that constitutes Objectionable Material or that breaches any MYP Corporation rules governing permitted and appropriate use of the Software, but is not obligated to do so.
10.7 MYP Corporation may suspend or terminate, with immediate effect, any Customer or User account or activity that:
10.7.1 disrupts or causes harm to MYP Corporation’s computers, systems or infrastructure or to third parties; or
10.7.2 breaches applicable law, including laws relating to unsolicited commercial messages.
11. Out of Scope
11.1 Professional Services may be provided by MYP Corporation to the Customer at MYP Corporation’s then current rates, where requested by the Customer, and pursuant to an agreed Quotation or as otherwise expressly specified in the Service Agreement, and may include:
11.1.1 recovery or restoration of Customer Data deleted by the Customer;
11.1.2 assistance with configuration or other implementation of the Services;
11.1.3 Services instruction, education or training; and
11.1.4 termination or migration assistance.
12. Disaster and Recovery Backup
12.1 Subject to 12.2, MYP Corporation will maintain a backup and disaster recovery system with respect to the Software and will use commercially reasonable efforts to perform the disaster recovery plan in a timely manner in the event of a disaster.
12.2 If a Force Majeure Event or any other event adversely affects MYP Corporation’s ability to backup or recover Customer Data, the Customer acknowledges that such Customer Data may not be recoverable and the Customer agrees that it is responsible for the re-entry of that data.
13. Onsite Support
13.1 If the Customer requests MYP Corporation to provide on-site support, MYP Corporation may provide that support as soon as reasonably practicable, subject to the Customer paying all out of pocket expenses associated with travel, accommodation and any other relevant expenses (Expenses). By requesting on-site support, the Customer is deemed to have agreed to pay the Expenses. The Expenses will be charged to the Customer in the next Monthly Fee Invoice and are payable in accordance with the Agreement.
13.2 MYP Corporation does not warrant that it will be able to receive, process or otherwise act upon any request for support made outside the Business Hours, or that on-site support services will be available outside Business Hours.
13.3 MYP Corporation may charge the Customer additional fees for any on-site visit requested by the Customer where no fault in the Software is identified.
14. Customer Data
14.1 MYP Corporation acknowledges that the Customer retains all rights, title and interest in and to the Customer Data. Customer Data is deemed to be Confidential Information under the Agreement.
14.2 MYP Corporation will not access the Customer’s User accounts or Customer Data except to respond to service or technical issues or at the Customer’s request. The Customer is responsible for the recovery or re-entry of any Customer Data deleted by the Customer. The Services including Customer Data will be segregated from any other Services provided by MYP Corporation to other customers.
14.3 The Customer is solely responsible for all Customer Data, whether publicly posted or privately transmitted, that is uploaded, posted, transmitted or otherwise made available by or on behalf of the Customer through the Services. The Customer is responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of Customer Data. MYP Corporation will protect Customer Data using at least the same protective precautions that MYP Corporation applies to protect its own proprietary or Confidential Information from unauthorised disclosure.
14.4 MYP Corporation will not disclose any Customer Data to any third party without the Customer’s prior written consent, except to its personnel and bona fide contractors whose access to the Customer Data is necessary for MYP Corporation to perform its obligations under the Agreement.
14.5 Subject to MYP Corporation’s confidentiality obligations under the Agreement, MYP Corporation is not responsible for any unauthorised access to, alteration of, theft or destruction of Customer Data from accident, fraud or any other cause, except to the extent caused directly by MYP Corporation’s gross negligence or wilful misconduct. To the extent MYP Corporation is liable under this clause, its sole obligation will be to use commercially reasonable efforts to restore or recover the affected Customer Data from the most recent back-up of Customer Data available.
15. Confidentiality
15.1 Subject to clause 15.2, each party must keep the other party’s Confidential Information confidential and must not deal with it in any way that might prejudice its confidentiality, except as required by law.
15.2 Neither party may disclose the Confidential Information to third parties without prior written consent of the other party.
15.3 The obligations in this clause 15 survive termination of the Agreement.
16. Privacy and IT Security Measures
16.1 The Privacy Policy explains how personal information is collected and managed in accordance with the Privacy Laws.
16.2 MYP Corporation will:
16.2.1 only collect, use, store, or disclose Customer Data as necessary to provide the Services or as required by law; and
16.2.2 handle all Customer Data in accordance with its Privacy Policy.
16.3 The Customer must:
16.3.1 comply with all Privacy Laws in relation to Personal Information, whether or not the Customer is bound by any one or more of the Privacy Laws;
16.3.2 not do anything or omit to do anything which will cause MYP Corporation to breach any Privacy Laws;
16.3.3 take all reasonable steps to ensure that the Personal Information is protected against any, misuse, loss, unauthorised access, modification or disclosure; and
16.3.4 promptly notify MYP Corporation of any inaccuracies or required updates to the Customer Data.
16.4 Each party will, to the extent reasonably requested by the other party, assist the other Party to comply with its respective obligations under the Australian Privacy Principles (Australia) and under the Fair Information Principles (Canada).
17. Intellectual Property
17.1 MYP Corporation owns all Intellectual Property in the Services and the Software, and grants the Customer a non-exclusive, non-transferable licence during the Term to use and access the Services and the Software for the purposes of using and accessing the Services.
17.2 The Customer warrants and represents that:
17.2.1 it has the right to use and upload the Customer Material to the Software as contemplated by the Agreement;
17.2.2 it has obtained all necessary rights, licences, permissions and consents (including from any third parties and, where applicable, from individuals to whom the Customer Material relates) to grant the licence in clause 17.1;
17.2.3 the Customer Material, including any Personal Information, has been collected, used, disclosed and provided to MYP Corporation in compliance with all applicable laws (including the Privacy Laws); and
17.2.4 the use of the Customer Material by the party in accordance with the Agreement will not infringe the Intellectual Property rights or other rights of any third party.
18. Dispute Resolution
18.1 This clause 18 applies to each dispute which arises between the parties in connection with the Agreement or this clause 18 (a Dispute).
18.2 Subject to clause 18.8, a party must not commence or maintain any action or proceeding in any court, tribunal or otherwise regarding a Dispute without first giving a Dispute Notice and complying with the provisions of this clause 18.
18.3 If a party considers that a Dispute has arisen, it may notify the other party in writing, setting out in reasonable detail the facts of the matter in dispute (Dispute Notice).
18.4 The parties must promptly hold good faith discussions after issue of a Dispute Notice to attempt to resolve the Dispute and must (without prejudice to the privilege against the production of any such information to a court) furnish to the other party all information with respect to the Dispute which is appropriate in connection with its resolution.
18.5 If the Dispute has not been resolved within 28 days after the giving of a Dispute Notice, either party may by notice to the other party refer the Dispute to mediation administered by the Australian Disputes Centre.
18.6 The costs of mediation must be shared equally between the parties.
18.7 If the Dispute has not been resolved within 14 days after commencement of mediation, either party may pursue its rights and remedies under the Agreement as it sees fit.
18.8 Notwithstanding anything in this clause 18, a party at any time may commence court proceedings in relation to any dispute or claim arising under or in connection with the Agreement where that party seeks urgent interlocutory relief.
18.9 This clause 18 shall not apply if the Agreement has been terminated.
19. Disclaimer, liability and indemnity
19.1 To the maximum extent permitted by law, the aggregate liability of MYP Corporation to the Customer, whether arising in contract, tort or otherwise, in respect of all claims, damages and costs arising under or in relation to the Agreement shall be limited to an amount equivalent to 12 months’ Fees paid or payable by the Customer to MYP Corporation under the Agreement.
19.2 To the maximum extent permitted by law, and subject to clause 19.4, the Services are provided “as is” and “as available”. MYP Corporation disclaims all representations and warranties, express, implied or statutory, not expressly set out in the Agreement, including any implied warranties of merchantability, fitness for a particular purpose and non-infringement, and makes no representation, warranty, or guarantee regarding the reliability, timeliness, quality, suitability or availability of the Services, or that the Services will be uninterrupted or error-free.
19.3 The Customer indemnifies MYP Corporation from and against third-party claims to the extent arising from:
19.3.1 the Customer’s breach of this Agreement;
19.3.2 the Customer’s misuse of the Services; or
19.3.3 the Customer’s breach of applicable law,
except to the extent the claim or loss is caused or contributed to by MYP Corporation’s negligence, breach, or wilful misconduct.
19.4 Neither party shall be liable to the other for any indirect, consequential, incidental, special or punitive loss or damage arising under or in relation to the Agreement whether or not such loss or damage was within the contemplation of either of the parties at the time of entering into the Agreement.
19.5 Notwithstanding any provision of these Terms and Conditions, nothing in these Terms and Conditions restricts, modifies or limits the Customer’s rights under any law which cannot be excluded or modified, including the Customer’s rights under the Australian Consumer Law.
20. Termination
20.1 At the end of the Initial Term, the Agreement shall renew automatically for successive Renewal Periods unless the Customer provides notice in writing to MYP Corporation to terminate the Agreement. The period of notice the Customer is required to provide is set out in the Service Agreement (Termination Notice Period).
20.2 Where the Initial Term is more than or equal to 12 months:
20.2.1 MYP Corporation must give the Customer a Renewal Notice at least thirty (30) days before the end of the Initial Term or the then current Renewal Period (as applicable), where the relevant Renewal Period is more than thirty (30) days; and
20.2.2 the Customer must give MYP Corporation at least fourteen (14) days’ notice in writing before the end of the Initial Term or the then current Renewal Period (as applicable) if it does not wish to renew the Subscription.
20.3 Where the Initial Term is less than 12 months:
20.3.1 MYP Corporation must give the Customer a Renewal Notice at least fourteen (14) days before the end of the Initial Term; and
20.3.2 the Customer must give MYP Corporation at least seven (7) days’ notice in writing before the end of the Initial Term if it does not wish to renew the Subscription.
20.4 If the Agreement renews for a Renewal Period of thirty (30) days or less, MYP Corporation is not required to provide a further Renewal Notice for each subsequent Renewal Period. In this case, the Customer may terminate the Agreement at any time by giving thirty (30) days’ notice to MYP Corporation.
20.5 Subscription Fees remain payable for services provided during the applicable notice period. Unless otherwise stated in the Service Agreement, MYP Corporation will refund or credit any prepaid Subscription Fees relating to any period after the effective date of termination, except where the Agreement is terminated due to the Customer’s breach.
20.6 A party may terminate the Agreement (Non-Defaulting Party) by notice in writing to the other party (Defaulting Party) if the Defaulting Party:
20.6.1 commits a material breach of these Terms and Conditions, where:
20.6.1.1 the material breach can be remedied and the Defaulting Party fails to remedy such material breach within thirty (30) days after receipt of a notice from the Non-Defaulting Party specifying the material breach and requiring the Defaulting Party to remedy such material breach; or
20.6.1.2 the material breach cannot be remedied; or
20.6.2 becomes Insolvent.
20.7 MYP Corporation may terminate the Agreement immediately by notice in writing to the Customer due to legal or regulatory reasons.
20.8 Subject to clause 5, upon termination of the Agreement, the Customer must cease using the Services and pay any outstanding Fees and Charges to MYP Corporation in accordance with clause 5.1.
20.9 For the avoidance of doubt, the expiry of or termination of the Agreement, will not extinguish or affect any rights of either party against the other which:
20.9.1 accrued prior to the time of the expiry or termination of the Agreement; or
20.9.2 otherwise relate to or may arise at any future time from any breach or non-observance of obligations under the Agreement which arose prior to the time of the expiry or termination; or
20.9.3 any provisions of the Agreement which by their nature survive expiry or termination.
21. Amendments to Terms and Conditions
21.1 MYP Corporation may amend these Terms and Conditions from time to time to:
21.1.1 reflect changes to the Services (including new features, improvements, or retiring features);
21.1.2 address security, fraud prevention, or technical issues;
21.1.3 comply with law, regulation, guidance or an order of a court or tribunal; or
21.1.4 otherwise protect MYP Corporation’s legitimate business interests, where the change is reasonably necessary.
21.2 MYP Corporation will provide the Customer with at least 30 days’ written notice in the event of a change to these Terms and Conditions (Notice Period) before it takes effect by emailing the notice to the primary email address on the Customer’s account. The notice will include either a summary of the changes or a link to a version showing the changes.
21.3 Changes to these Terms and Conditions will not apply retrospectively to reduce the Customer’s rights for Services already paid for. Unless the change to these Terms and Conditions is required by law or is necessary to address an urgent security risk, any change that materially disadvantages the Customer will take effect only:
21.3.1 from the commencement of the Customer’s next billing period that begins after the Notice Period ends; or
21.3.2 if the Customer expressly agrees to the change, from an earlier date agreed in writing.
21.4 If a change materially disadvantages the Customer, the Customer may terminate the Agreement before the end of the Notice Period by providing written notice to MYP Corporation and MYP Corporation will refund any prepaid Fees for the unused portion of the Term (if applicable). MYP Corporation will not charge an early termination fee for doing so.
21.5 Continued use of the Services by the Customer after the Notice Period, where the Customer has not terminated the Agreement in accordance with clause 21.4, will be deemed to be acceptance of the amended Terms and Conditions.
21.6 This clause 21 does not limit:
21.6.1 any rights or remedies that the Customer may have under the Australian Consumer Law; or
21.6.2 any term under these Terms and Conditions that is specifically required by law.
22. GST
22.1 A term used in this clause 22 that is defined in the GST Act has the same meaning when used in this clause.
22.2 Unless the Agreement expressly provides otherwise, all amounts payable under or pursuant to the Agreement are expressed to be exclusive of GST. If GST is payable on a Taxable Supply, the amount payable for that Taxable Supply will be the amount expressed in the Agreement plus GST.
22.3 Without limiting clause 22.2, if an amount payable under or pursuant to the Agreement is calculated by reference to a liability incurred by a party, then the liability must be reduced by the amount of any Input Tax Credit to which that party is entitled in respect of that liability.
22.4 A party will be assumed to be entitled to a full Input Tax Credit unless it demonstrates that its entitlement is otherwise before the date on which payment must be made.
22.5 A party receiving a Taxable Supply (the “Recipient”) is not required to pay an amount on account of GST under clause 22.2 to the party making the Taxable Supply (the “Supplier”) until the Supplier has provided the Recipient with a Tax Invoice in respect of that Taxable Supply.
23. Miscellaneous
23.1 MYP Corporation may assign or transfer all or part of its rights and obligations under the Agreement, including in connection with a corporate restructure, sale of assets or change of control, without the Customer’s consent.
23.2 Any notice delivered by MYP Corporation to the Customer under these Terms and Conditions will be delivered to the address of the Customer set out in the Service Agreement. Any notice delivered by the Customer to MYP Corporation under these Terms and Conditions must be delivered by contacting MYP Corporation at MYP Corporation – Suite 204, level 2, 23 Ryde Road, Pymble NSW 2073.
23.3 A notice given in accordance with this clause takes effect when taken to be received (or at a later time specified in the notice), and is taken to be received:
23.3.1 if hand delivered, on delivery;
23.3.2 if sent by prepaid post, on the third Business Day after the date of posting (or on the seventh Business Day after the date of posting if posted to or from a place outside Australia);
23.3.3 if sent by email, at the time the email is sent (provided the sender has not received a notification within eight Business Hours after the email is sent that the email was not received by the recipient),
but if the delivery, receipt or transmission is not on a Business Day, or is after Business Hours on a Business Day, the notice is taken to be received at 9.00am on the next Business Day.
23.4 Any failure, delay or indulgence by a party in exercising or enforcing any right under the Agreement does not operate as a waiver of that right, nor does any waiver of a breach constitute a waiver of any subsequent breach.
23.5 These Terms and Conditions are governed by the laws of New South Wales. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the New South Wales courts and tribunals.
23.6 Clauses 5 (Service Fees), 14 (Customer Data), 15 (Confidentiality), 16 (Privacy and IT Security Measures), 17 (Intellectual Property) and 19 (Disclaimer, liability and indemnity), together with the obligation of the Customer to pay any outstanding Fees due under the Agreement, survive the termination or expiry of the Agreement.
23.7 The Customer must not assign any right under the Agreement without the prior written consent of MYP Corporation, which may be withheld at its discretion.
23.8 A party may exercise any right, power or remedy at its discretion and separately or concurrently with another right, power or remedy. A single or partial exercise of a right, power or remedy by a party does not prevent a further exercise of that or of any other right, power or remedy. Failure or delay by a party in exercising a right, power or remedy does not prevent its exercise. A right may only be waived in writing, executed by the party giving the waiver.
23.9 Where access by the Customer to the Services is terminated, all disclaimers and limitations of liability set out in these Terms and Conditions will survive.
23.10 Part or all of a clause of the Agreement that is illegal or unenforceable will be severed from the Agreement and will not affect the continued operation of the remaining provisions of the Agreement.
23.11 Any legislation which varies an obligation or right, power or remedy of a party that is bound by these Terms and Conditions is excluded to the full extent permitted by law, however, nothing in the Agreement is intended to exclude, restrict or modify the operation of any law which cannot be excluded, restricted or modified.
23.12 The Agreement constitutes the entire agreement between the parties relating in any way to the subject matter of the Agreement and supersedes any prior agreement (oral or written) from the Effective Date.
