GOTI PTY LTD TERMS AND CONDITIONS

1. AGREEMENT

1.1. These Terms and Conditions, together with our Privacy Policy, apply to your use of the Software owned and operated by Goti Pty Ltd (ACN 655 667 673) (“we”, “us” or “our”).

1.2. By using the Software, you agree and acknowledge that you have read these Terms and Conditions. You are deemed to have agreed to, and accepted, these Terms and Conditions on behalf of any entity for whom you use the Software, whether as an Authorised User or otherwise.

1.3. Your use of the Software is subject to Goti policies, including our Dispute and Refund Policy and our Payee Validation Policy. By agreeing to these Terms and Conditions, you also agree to be bound by these policies, which are incorporated herein by reference. You can review the current versions of these policies at any time on our website.

1.4. We reserve the right to amend these Terms and Conditions at any time. Any amendments will be effective immediately upon posting on our website. Your continued use of the Software after any amendments constitutes acceptance of those amendments.

2. DEFINITIONS AND INTERPRETATION

2.1. In these Terms and Conditions, the following expressions have the following meanings, unless otherwise stated:

• “Authorised User” means those of your employees, agents and contractors who are authorised by you to use the Software, and subscribe to use the Software via the Site;

• “Business Day” means a day other than a weekend or public or bank holiday in Victoria, Australia;

• “Commencement Date” means the date that you register to use the Software;

• “Customer Data” means all data, information, content, records and material uploaded to, submitted through, generated by, processed by, stored on or transmitted via the Software by you or on your behalf, or otherwise provided to us in connection with your use of the Software, including but not limited to: (a) invoices, bills, payment instructions, remittance details, payroll data, and other financial or transactional records; (b) information relating to your clients, suppliers, vendors, payees, employees and other third parties (including names, addresses, bank account details, ABNs, and contact information); (c) Wallet transaction data, funding records, withdrawal records, and Linked Account details; (d) personal information (as defined in the Privacy Laws) of any individual; and (e) any other data or information that you or your Authorised Users input, upload, or otherwise make available through the Software, but excludes any data that is owned by us or our licensors, including Provider IP and aggregated, de-identified or anonymised data derived from Customer Data that does not identify you or any individual;

• “Developed IP” is defined in clause 8.2;

• “Fees” means the pricing set out to you in your User Form, which may be updated or amended by us from time-to-time;

• “Intellectual Property Rights” means all present and future intellectual and industrial property rights throughout the world of whatever nature (whether or not registered or registrable) including but not limited to all rights in respect of technical information, know-how, copyright, trade marks, designs, patents, domain names, business names, logos, drawings, trade secrets, the right to have confidential information kept confidential or other proprietary rights, or any rights to registration of such rights;

• “Linked Account” means the Australian bank account nominated and verified by you in connection with your use of the Wallet, to which Wallet Funds may be withdrawn or returned;

• “Payment Service Provider” means any third-party payment service provider that we engage to facilitate payments in connection with the Software;

• “Privacy Laws” means the Privacy Act 1988 (Cth) and the Australian Privacy Principles, and any other applicable privacy or data protection laws;

• “Provider IP” is defined in clause 8.1;

• “Related Bodies Corporate” has the meaning given in the Corporations Act 2001 (Cth);

• “Site” means gotiapp.io or any other site operated by us;

• “Software” means the software platform we provide under these Terms and Conditions, located on the Site, that enables businesses and their financial teams to securely manage, process and pay invoices, bills and other payment obligations, including by facilitating business-to-business payments, payroll payments, and same-day or time-sensitive payments through the Wallet and integrated payment services (including PayTo, direct debit, and such other payment methods as may be made available from time to time), and which includes any associated software, applications, technology, code, updates, enhancements, and all Intellectual Property Rights contained therein;

• “User”, “you” or “your” means the person or entity that has registered to use the Software, an Authorised User, or any other person or entity accessing or using the Software;

• “User Form” means the customised document provided to a User detailing the services and Fees.

• “Wallet” or “Goti Wallet” means the virtual payment account facility made available to you through the Software, which is held and maintained by the Payment Service Provider (or its underlying authorised deposit-taking institution), for the sole purpose of funding and facilitating business payments and payroll transactions through the Software;

• “Wallet Funds” means any funds deposited into, held within, or available in your Wallet at any given time;

3. USE OF THE SOFTWARE

3.1. Subject to these Terms and Conditions, we grant you a non-exclusive, non-transferable, revocable licence to use the Software for your internal business purposes during the term of this agreement.

3.2. You will not, and will ensure that your Authorised Users do not:

• (a) modify the Software or merge any aspect of the Software with another programme other than as expressly provided under these Terms and Conditions;

• (b) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Software;

• (c) copy, reproduce, distribute, republish, download, display, post or transmit any part of the Software in any form or by any means;

• (d) license, sell, rent, lease, transfer, assign or otherwise commercially exploit the Software;

• (e) use the Software for any unlawful purpose or in any way that interrupts, damages, impairs or renders the Software less efficient;

• (f) access, store, distribute or transmit any viruses, or any material during the course of your use of the Software that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

• (g) facilitate or assist a third party to do any of the above.

  3.3. You are responsible for maintaining the confidentiality of your account and password and for restricting access to your account. You agree to accept responsibility for all activities that occur under your account or password.

4. COMPLIANCE AND ONBOARDING

4.1. Your use of the Software is conditional upon your compliance with all applicable laws, regulations, and our compliance requirements (“Compliance Requirements”).

4.2. We reserve the right to conduct compliance checks and request information from you to satisfy ourselves of your compliance with the Compliance Requirements. You agree to:

• (a) cooperate fully with any such checks;

• (b) provide all information and documentation we reasonably request to conduct compliance checks and complete our onboarding procedures;

• (c) ensure all information provided is accurate, complete, and up-to-date; and

• (d) promptly update us of any changes that may affect your compliance status.

  4.3. We reserve the right to refuse, suspend, or terminate access to the Software if:

• (a) you fail to provide the requested information as part of our compliance and onboarding processes;

• (b) you fail to satisfactorily complete our compliance and onboarding processes;

• (c) we have reasonable concerns about your compliance with Compliance Requirements; or

• (d) we are required to do so by law or a regulatory authority.

5. YOUR OBLIGATIONS

5.1. You will:

• (a) provide us with all necessary co-operation in relation to these Terms and Conditions and access to such information as we may reasonably require in order to provide the Software;

• (b) comply with all applicable laws and regulations with respect to your activities under these Terms and Conditions;

• (c) carry out all your responsibilities set out in these Terms and Conditions in a timely and efficient manner;

• (d) ensure that the Authorised Users use the Software in accordance with these Terms and Conditions and you shall be responsible for any Authorised User’s breach of these Terms and Conditions;

• (e) obtain and maintain all necessary licences, consents, and permissions necessary for us, our contractors and agents to perform our obligations under these Terms and Conditions, including without limitation the Software;

• (f) ensure that your network and systems comply with the relevant specifications provided by us from time to time;

• (g) be solely responsible for procuring and maintaining your network connections and telecommunications links from your systems to our data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet.

5. FEES AND PAYMENT

5.1. You will pay us the Fees for the Software in accordance with this clause 5 and as specified in the User Form.

5.2. We will invoice you for the Fees as set out in the User Form. You must pay all invoiced amounts within 14 days of the invoice date.

5.3. All amounts and fees stated or referred to in these Terms and Conditions are exclusive of GST, which shall be added to our invoice(s) at the appropriate rate.

5.4. If you fail to make any payment due to us under these Terms and Conditions by the due date for payment, then, without limiting our other rights and remedies:

• (a) you shall pay interest on the overdue amount at the rate of 4% per annum above the Reserve Bank of Australia’s cash rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount; and

• (b) we may suspend your access to all or part of the Software until payment has been made in full.

  5.5. Payment processing services for the Software may be provided by a Payment Service Provider and are subject to the Payment Service Provider’s terms and conditions. By using the Payment Service Provider to process payments, you agree to be bound by the Payment Service Provider’s terms and conditions, which may be modified by the Payment Service Provider from time to time. As a condition of us enabling payment processing services through the Payment Service Provider, you agree to provide us with accurate and complete information about you and your business, and you authorise us to share it and transaction information related to your use of the payment processing services with the Payment Service Provider.

6. Direct Debit Service Request (DDRS) and Direct Debit Request Service Agreement (DDRSA) and PayTo Agreements and Payment Authorisations

6.1. By agreeing to these terms and conditions, you also agree to the Direct Debit Request Service (DDRS) and the Direct Debit Request Service Agreement (DDRSA). This constitutes your consent to the terms, responsibilities, and obligations outlined in those agreements.

6.2. By using the Software to initiate payments via PayTo (or any successor real-time payment mandating service operated through the New Payments Platform), you agree to:

• (a) establish and maintain valid PayTo agreements as required by the Payment Service Provider and the applicable payment scheme rules;

• (b) ensure that all PayTo mandates, authorisations, and consents are duly obtained from the relevant account holders before initiating any payment through the Software;

• (c) promptly review, manage, and respond to any PayTo agreement notifications, amendments, or disputes in accordance with the applicable payment scheme rules;

• (d) not initiate any PayTo payment that you are not lawfully authorised to make or that exceeds any applicable transaction or mandate limits; and

• (e) comply with the terms and conditions of the Payment Service Provider and the applicable payment scheme rules in relation to PayTo, as notified to you from time to time.

We are not liable for any failed, delayed, or rejected PayTo transaction arising from an invalid, expired, disputed, or revoked PayTo agreement, or from any act or omission of the Payment Service Provider, the New Payments Platform, or any receiving financial institution. You indemnify us against any claim, loss, or expense arising from your initiation of a PayTo payment without proper authority or in breach of applicable payment scheme rules.

7. GOTI WALLET

7.1. Purpose and Nature of Wallet. The Wallet is a virtual payment account facility made available through the Software to enable you to pre-fund and make same-day business payments, including payroll payments and time-sensitive bill payments. The Wallet is provided solely as a payment facilitation feature and is not a deposit product, savings account, investment product, or any other form of financial product. The Wallet is held and maintained by the Payment Service Provider (or its underlying authorised deposit-taking institution) and is not operated or held by us. We do not hold an Australian Financial Services Licence and do not provide financial product advice in connection with the Wallet.

7.2. Permitted Use of Wallet Funds. You acknowledge and agree that Wallet Funds may only be used for the purpose of funding business-to-business payments, payroll payments, and other legitimate business payment obligations through the Software. The Wallet must not be used as a general-purpose bank account, a means of storing funds indefinitely, or for any personal, speculative, or non-business purpose. No interest or other return will accrue or be payable on Wallet Funds at any time.

7.3. Linked Account. In order to use the Wallet, you must nominate and verify a Linked Account. You represent and warrant that you are the legal and beneficial owner of the Linked Account (or are otherwise duly authorised to operate the Linked Account for the purposes of the Wallet). You must promptly notify us of any changes to your Linked Account details. All withdrawals or returns of Wallet Funds will be made exclusively to the Linked Account, and we will not process any withdrawal or return of Wallet Funds to any account other than the nominated Linked Account.

7.4. Dormant Funds and Automatic Withdrawal. The Wallet is intended for the regular movement and application of funds in connection with business payment obligations. If any Wallet Funds remain in the Wallet without being applied to a payment transaction for a continuous period of sixty (60) days or more, we reserve the right to withdraw some or all of such Wallet Funds and return them to your Linked Account without prior notice. You irrevocably authorise us to effect any such withdrawal and return. We will use reasonable endeavours to notify you promptly following any withdrawal made pursuant to this clause.

7.5. Funding the Wallet. You may fund your Wallet using the payment methods made available through the Software from time to time. We do not guarantee the availability of any particular funding method and may vary or restrict available methods at our discretion. You are solely responsible for ensuring that sufficient Wallet Funds are available to meet your payment obligations at the time a transaction is initiated through the Software. We accept no liability for any failed, delayed, or dishonoured payment arising from insufficient Wallet Funds.

7.6. Not a Stored Value Facility. You acknowledge and agree that the Wallet is not a stored value facility, e-money product, or bank account. Wallet Funds are not deposits and are not protected by any government deposit guarantee or insurance scheme. The Wallet is provided solely as a transactional facilitation feature and is subject to the terms and conditions of the Payment Service Provider.

7.7. Suspension and Restriction of Wallet. Without limiting our rights under clause 12, we may suspend, restrict, or close your access to the Wallet at any time if:

• (a) we reasonably suspect fraudulent, illegal, or unauthorised activity in connection with your Wallet;

• (b) you use or attempt to use the Wallet for any purpose other than the permitted purposes described in this clause;

• (c) we are required to do so by law, regulation, or by the Payment Service Provider;

• (d) we have reasonable concerns about your compliance with the Compliance Requirements; or

• (e) your access to the Software is suspended or terminated for any reason.

Upon any suspension, restriction, or closure, any remaining Wallet Funds will be returned to your Linked Account, subject to any applicable legal or regulatory hold.

7.8. Limitation of Liability - Wallet. Without limiting the generality of clause 11, you acknowledge and agree that:

• (a) we are not liable for any loss, delay, or failure arising from or in connection with the acts or omissions of the Payment Service Provider or its underlying authorised deposit-taking institution in relation to the Wallet;

• (b) we are not liable for any loss arising from your failure to maintain sufficient Wallet Funds, your provision of incorrect payment details, or your use of the Wallet otherwise than in accordance with these Terms and Conditions;

• (c) we are not liable for any loss or unavailability of Wallet Funds resulting from any insolvency, failure, or default of the Payment Service Provider or its underlying authorised deposit-taking institution; and

• (d) you indemnify us against any claim, loss, damage, cost, or expense (including reasonable legal costs) arising from or in connection with your use of the Wallet in breach of these Terms and Conditions, any fraudulent or illegal activity in connection with your Wallet, or any third-party claim arising from payments you have made using the Wallet.

  7.9. Payment Service Provider Terms. Your use of the Wallet is subject to and conditional upon your acceptance of the terms and conditions of the Payment Service Provider as notified to you from time to time. In the event of any inconsistency between these Terms and Conditions and the Payment Service Provider’s terms and conditions in respect of the Wallet, the Payment Service Provider’s terms and conditions will prevail to the extent of the inconsistency.

  7.10. Wallet on Termination. Upon termination or expiry of these Terms and Conditions for any reason, any remaining Wallet Funds will be returned to your Linked Account, less any amounts owing to us or any deductions we are required or entitled to make under these Terms and Conditions or at law. We will use reasonable endeavours to process any such return within thirty (30) days of the effective date of termination, provided that all outstanding Fees and amounts owing to us have been paid in full.

8. INTELLECTUAL PROPERTY

8.1. All rights, title or interest in and to the Software and any information or technology that may be provided to, or accessed by, you in connection with your use of the Software is owned, and will remain owned, by us or our licensors (“Provider IP”). Using the Software does not transfer any ownership or rights, title or interest in and to the Provider IP.

8.2. All Intellectual Property Rights discovered, developed or otherwise coming into existence as a result of, for the purposes of, or in connection with, the Software will automatically vest in, and are assigned to, us, including any enhancements, improvements and modifications to the Provider IP (collectively, the “Developed IP”).

8.3. You must not represent to anyone or in any manner whatsoever that you are the proprietor of the Software and/or the Provider IP.

8.4. We confirm that we have all the rights in relation to the Software that are necessary to grant all the rights we purport to grant under, and in accordance with, these Terms and Conditions.

9. CUSTOMER DATA

9.1. You shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.

9.2. We shall follow our archiving procedures for Customer Data as set out in our Back-Up Policy available upon request. In the event of any loss or damage to Customer Data, your sole and exclusive remedy against us shall be for us to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by us in accordance with the archiving procedure described in our Back-Up Policy. We shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party.

9.3. We shall, in providing the Software, comply with our Privacy Policy relating to the privacy and security of the Customer Data available upon request, as such document may be amended from time to time by us in our sole discretion.

9.4. To the extent that we collect, hold, use, disclose, or otherwise handle personal information (as defined in the Privacy Act 1988 (Cth)) on your behalf or in connection with your use of the Software (including Wallet and payment transaction data), the parties agree as follows:

• (a) you are responsible for ensuring that you have obtained all necessary consents, authorisations, and permissions required under the Privacy Laws for us to collect, hold, use, and disclose personal information in connection with providing the Software, including personal information relating to your employees, clients, suppliers, payees, and other third parties;

• (b) you must ensure that any personal information you provide to us, or which is submitted through the Software, has been collected in accordance with the Privacy Laws and that all relevant individuals have been made aware of how their personal information may be handled in connection with the Software;

• (c) we will handle personal information received from you or generated through your use of the Software in accordance with our Privacy Policy and the Privacy Laws, and will not use or disclose such personal information other than for the purpose of providing the Software or as otherwise permitted by the Privacy Laws or these Terms and Conditions;

• (d) each party must take reasonable steps to protect personal information from misuse, interference, loss, and from unauthorised access, modification, or disclosure, having regard to the nature and sensitivity of the information (including, where applicable, financial, payroll, and bank account information processed through the Software and the Wallet); and

• (e) to the extent that we are considered to hold personal information on your behalf as your agent or service provider, you remain the entity principally responsible for compliance with the Australian Privacy Principles in respect of that personal information.

  9.5. Each party must notify the other party without undue delay (and in any event within 72 hours) upon becoming aware of any actual or reasonably suspected data breach, security incident, or unauthorised access, use, disclosure, loss or destruction affecting Customer Data (a “Data Breach”). Upon becoming aware of a Data Breach, the affected party must:

• (a) take all reasonable steps to contain, investigate, and remediate the Data Breach;

• (b) provide the other party with all information reasonably necessary to assess the nature, scope, and likely impact of the Data Breach;

• (c) cooperate with the other party in connection with any investigation, notification, or remediation, including any notification required under Part IIIC of the Privacy Act 1988 (Cth) or any other applicable law; and

• (d) not make any public statement or notification regarding the Data Breach without first consulting with the other party (unless required by law to do so).

You acknowledge that we may be required to notify the Payment Service Provider and relevant regulatory authorities (including the Office of the Australian Information Commissioner) of a Data Breach in accordance with our legal obligations, and you consent to such notification.

10. THIRD PARTY PROVIDERS

10.1. You acknowledge that the Software may enable or assist you to access the website content of, correspond with, and make payments for goods and services from, third parties via third-party websites and that you do so solely at your own risk. We make no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by you, with any such third party. Any contract entered into and any transaction completed via any third-party website is between you and the relevant third party, and not us. We recommend that you refer to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website. We do not endorse or approve any third-party website nor the content of any of the third-party website made available via the Software.

11. WARRANTIES

11.1. We warrant that:

• (a) we have the right to grant the licence to use the Software as contemplated by these Terms and Conditions;

• (b) the Software will, when properly used, perform substantially in accordance with the functions described in these Terms and Conditions;

• (c) we will perform our obligations under these Terms and Conditions with reasonable care and skill.

  11.2. The warranty in clause 11.1 is subject to you using the Software in accordance with our operating instructions and the terms of these Terms and Conditions.

  11.3. You warrant and represent that:

• (a) you have the legal capacity to enter into these Terms and Conditions;

• (b) you have obtained and will maintain all necessary licences, consents, and permissions necessary for us to perform our obligations under these Terms and Conditions;

• (c) you will ensure that your Authorised Users use the Software in accordance with these Terms and Conditions and that you are responsible for any Authorised User’s breach of these Terms and Conditions;

• (d) you are not relying on any statement, representation or promise made by us or on our behalf that is not expressly set out in these Terms and Conditions.

12. LIMITATION OF LIABILITY

12.1. Nothing in these Terms and Conditions excludes our liability:

• (a) for death or personal injury caused by our negligence; or

• (b) for fraud or fraudulent misrepresentation.

  12.2. Subject to clause 12.1:

• (a) we shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, Fees or expenses however arising under these Terms and Conditions; and

• (b) our total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of these Terms and Conditions shall be limited to the total Fees paid for the Software during the 12 months immediately preceding the date on which the claim arose.

  12.3. Nothing in these Terms and Conditions is intended to exclude, restrict or modify any guarantee, condition, warranty, right or remedy implied or imposed by the Competition and Consumer Act 2010 (Cth) or any other applicable law which cannot lawfully be excluded or modified. If any such guarantee, condition, warranty, right or remedy is implied and we are unable to exclude it, then to the extent permitted by law, our liability for breach of any such non-excludable guarantee, condition or warranty is limited, at our option, to:

• (a) the resupply of the relevant services; or

• (b) the payment of the cost of having the relevant services resupplied.

13. TERM, SUSPENSION AND TERMINATION

13.1. These Terms and Conditions shall commence on the Commencement Date and shall continue unless terminated in accordance with this clause 13.

13.2. We may suspend your access to the Software immediately if:

• (c) you breach any provision of these Terms and Conditions;

• (d) we have reasonable grounds to suspect fraudulent or illegal activity;

• (e) for scheduled or emergency maintenance (for which access will be restored upon completion);

• (f) we are required to do so by law or a regulatory authority;

• (g) if we have concerns about the legality or propriety of any transactions associated with your use of the Software; or

• (h) we have reasonable concerns about your compliance with Compliance Requirements.

  13.3. Without affecting any other right or remedy available to it, we may terminate these Terms and Conditions and your access to the Software:

• (i) by providing you with thirty (30) days’ written notice without cause; or

• (j) Immediately, if you breach these Terms and Conditions and fail to remedy the breach within fourteen (14) days of receiving notice.

  13.4. Without affecting any other right or remedy available to it, either party may terminate these Terms and Conditions with immediate effect by giving written notice to the other party if:

• (a) the other party fails to pay any amount due under these Terms and Conditions on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;

• (b) the other party commits a material breach of any other term of these Terms and Conditions which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;

• (c) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 95A of the Corporations Act 2001 (Cth);

• (d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party;

• (e) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;

• (f) the holder of a security over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;

• (g) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;

• (h) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;

• (i) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 13.2(c) to clause 13.2(h) (inclusive).

  13.5. On termination of these Terms and Conditions for any reason:

• (a) you will be liable to pay us for Fees which will be prorated to the date of effective termination;

• (b) all licences granted under these Terms and Conditions shall immediately terminate and you shall immediately cease all use of the Software;

• (c) each party shall return and make no further use of any equipment, property, documentation and other items (and all copies of them) belonging to the other party;

• (d) we may destroy or otherwise dispose of any of the Customer Data in our possession unless we receive, no later than ten days after the effective date of the termination of these Terms and Conditions, a written request for the delivery to you of the then most recent back-up of the Customer Data. We shall use reasonable commercial endeavours to deliver the back-up to you within 30 days of our receipt of such a written request, provided that you have, at that time, paid all fees and Fees outstanding at and resulting from termination (whether or not due at the date of termination). You shall pay all reasonable expenses incurred by us in returning or disposing of Customer Data; and

• (e) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.

14. FORCE MAJEURE

Neither party shall be in breach of these Terms and Conditions nor liable for delay in performing, or failure to perform, any of its obligations under these Terms and Conditions if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for 3 months, the party not affected may terminate these Terms and Conditions by giving 14 days’ written notice to the affected party.

15. ASSIGNMENT

You shall not, without our prior written consent, assign, transfer, charge, sub-contract or deal in any other manner with all or any of your rights or obligations under these Terms and Conditions. We may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of our rights or obligations under these Terms and Conditions.

16. CONFIDENTIALITY

16.1. Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 15.2.

16.2. Each party may disclose the other party’s confidential information:

• (a) to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party’s obligations under these Terms and Conditions. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 15; and

• (b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

  16.3. No party shall use any other party’s confidential information for any purpose other than to perform its obligations under these Terms and Conditions.

17. NOTICES

17.1. Any notice or other communication given to a party under or in connection with these Terms and Conditions shall be in writing and shall be:

• (a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or

• (b) sent by email to the address specified in the User Form.

  17.2. Any notice or communication shall be deemed to have been received:

• (a) if delivered by hand, on signature of a delivery receipt;

• (b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; or

• (c) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 16.2(c), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.

18. GOVERNING LAW AND JURISDICTION

These Terms and Conditions and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of Victoria, Australia. Each party irrevocably agrees that the courts of Victoria, Australia shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these Terms and Conditions or its subject matter or formation (including non-contractual disputes or claims).

19. ENTIRE AGREEMENT

19.1. These Terms and Conditions constitute the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

19.2. Each party acknowledges that in entering into these Terms and Conditions it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Terms and Conditions.

19.3. Nothing in this clause shall limit or exclude any liability for fraud.

20. VARIATION

No variation of these Terms and Conditions shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

21. SEVERANCE

If any provision or part-provision of these Terms and Conditions is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of these Terms and Conditions.

22. WAIVER

A waiver of any right or remedy under these Terms and Conditions or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under these Terms and Conditions or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under these Terms and Conditions or by law shall prevent or restrict the further exercise of that or any other right or remedy.

By using the Software, you acknowledge that you have read, understood, and agree to be bound by these Terms and Conditions.

Last updated: February 11, 2025