OVATU PTY LTD – SOFTWARE AS A SERVICE AGREEMENT

This Software as a Service Agreement (Agreement) is between Ovatu Pty Ltd ABN 92 159 394 484 ATF Ovatu Trading Trust ABN 74 504 757 106 (referred to as Ovatu) and the each individual or entity agreeing to this Agreement (referred to as you or your), collectively referred to as the Parties and each a Party. This Agreement governs the access to and use of the Content Management System (Software) and any related services made available to you (together with the Software referred to as Services). The Services are available on the website at https://ovatu.com (Site) and the Ovatu mobile application (App).

1. ACCEPTANCE

1.1 This Agreement forms a binding legal agreement between the Parties. By using the Services, you agree to comply with and be legally bound by the terms of this Agreement. Please read this Agreement carefully. If you have any questions, you should contact Ovatu using the contact details at the end of this Agreement.

1.2 You acknowledge and agree to this Agreement by: (i) ticking ‘I Agree’; (ii) accessing or using the App, Site or Services; or (iii) making part or full payment for the Services. If you do not agree to this Agreement, you should cease accessing or using the App, Services and Site immediately. If you are agreeing to this Agreement on behalf of an entity, including but not limited to a company or other organisation, you represent and warrant that you have the power and authority to enter into agreements and bind such entity and act on behalf of any person who uses the Services (each a User, collectively referred to as Users).

1.3 You agree the Services will only be used by Users who are your employees, contractors or authorised agents acting in the ordinary course of business and directly working for or managed by you. You must ensure that each User using or accessing the Services does so in accordance with the terms of this Agreement.
1.4 Some Services may be subject to additional terms. Where applicable, such terms will be displayed prior to use of that Service or otherwise notified to you.

1.5 Ovatu reserves the right to make changes to this Agreement at any time, effective upon the posting of the modified Agreement. Ovatu endeavours to communicate these changes to you via email. It is your obligation to ensure that you (and each User where applicable) have read, understood and agreed to the most recent Agreement available on the App or Site.

1.6 Using the App, Site or Services may be prohibited or restricted in certain countries. If you use the Services outside of Australia, you are responsible for complying with the laws and regulations of the country from which you access or use the Services.

2. ADDITIONAL TERMS AND CONDITIONS

2.1 This Agreement supplements and incorporates the Privacy Policy and Website Terms of Use (collectively the Ovatu Policies) as set out on the App and Site.

3. SOFTWARE AND SERVICES

3.1 The Software is the sole and exclusive property of Ovatu.

3.2 Users can access and use the Services on any computer, mobile, tablet or other device which supports the App or Site (Device). Ovatu recommends each User access the App and Site using the recommended browsers as notified to you.

3.3 To permit Users to access the Services, you must:

  • (a) complete Ovatu’s registration form as set out on the App or Site (Registration Form) including name, contact details and other related information as requested by Ovatu (User Information); and
  • (b) subscribe to the Services (Subscription) for a period of time as set out on the Registration Form (Subscription Period). The Subscription Period may include a free trial period as set out on the Site or App (Trial Period). The fees for each Subscription Period (Subscription Fee) will vary subject to the functionalities and Services you request as identified on the Registration Form, including but not limited to the number of Users and your location and preferred currency.

3.4 Upon receipt of the completed Registration Form and any applicable Subscription Fee, Ovatu will create an account (Account) for you or your organisation (as applicable). If you are entitled to a Trial Period, you will not be prompted to pay the Subscription Fee until the end of that trial period.

3.5 You are responsible for determining (a) what Services you require; and (b) if you are an organisation with an Account to manage multiple users: who will be a User of the Services, each User’s access level and whether to revoke a User’s access to the Services at any time for any reason via your Account.

4. DATA

4.1 Any information you submit via the Services, User Information or information otherwise collected by Ovatu (collectively referred to as Data) may be stored in servers located in Australia, the United States and other international locations. Ovatu will take reasonable steps and use industry standard procedures to ensure that Data is kept secure and confidential.

4.2 You grant Ovatu a non-exclusive, worldwide licence to any Intellectual Property rights subsisting in your Data in order to use, copy, transmit, reference, disclose or back-up your Data or otherwise for purposes including:

  • (a) to enable you and each User to access and use the Services;
  • (b) for Ovatu’s s administrative, support and training purposes; and
  • (c) in accordance with this Agreement or as otherwise required for Ovatu to provide the Services.

4.3 You represent and warrant that:

  • (a) any and all Data you submit (or a User submits) via the Services are your sole and exclusive property; or
  • (b) you have secured any and all authorisation and rights to use the Data as applicable under the relevant laws.

4.4 Title to and all Intellectual Property rights in any Data you input into the Services remains your property. However, your access to the Data and continued use of the Services is contingent on payment of your Subscription Fee for your Subscription.

4.5 You acknowledge and agree that:

  • (a) Ovatu is not responsible for any corruption or loss of any Data if such corruption or loss is due to an act or omission by you, your employee(s), contractor(s), agent(s), any User or other third party; and
  • (b) you are responsible for complying with all laws and regulations regarding the use and disclosure of Data including but not limited to the Privacy Act 1988 (Cth), the Spam Act 2003 (Cth) and any other requirements under Australian law.

5. SECURITY

5.1 Ovatu has implemented and will maintain security systems for the transmission of Data consisting of encryption and "firewall" technologies that are understood in the industry to provide adequate security for the transmission of such information over the internet. These measures are intended to prevent unauthorised Data infiltration or security breaches. Ovatu does not guarantee the security of any Data you store on your servers, or the servers of your contractors, your service providers or User Devices.

6. PAYMENT

6.1 You agree to pay the Subscription Fee required to enable you to access and use the Services.

6.2 You will be required to make payment by way of PayPal, credit card or other nominate payment method and you must provide your relevant details when completing your online subscription.

6.3 You acknowledge and agree that:

  • (a) to maintain your subscription payment to Ovatu payment will be made in advance on a monthly payment date from your nominated debit or credit card or by direct debit]; and
  • (b) if Ovatu is unable to take payment, Ovatu will attempt to contact you via email as soon as it becomes aware of the payment failure. Until payment is confirmed, your Account will be locked and you and Users will not be able to access or use the Software.

6.4 If you make a payment by way of credit card, you warrant that the information you provide to Ovatu is true and complete, that you are authorised to use the credit card to make payment and that your payment will be honoured by your card issuer.

6.5 If payment is not made within five (5) days of the last payment date, Ovatu may lock your Account without notice to you, in which case you will not be able to access your Account, you and Users will not be able to use the Software and any of your or Users’ Data on the Account may be deleted and not recoverable.

6.6 All amounts are stated in the currency of the location in which Ovatu determines you to be in and any amount will be exclusive of any applicable taxes. If taxes are include, this is stated.

6.7 Ovatu’s pricing structure or payment methods may be amended from time to time at its sole discretion.

7. CANCELLATION AND TERMINATION

7.1 You can terminate your Account at any time.

7.2 Your Account will be terminated at the end of the billing cycle, and automatic payments will cease at the end of the month that Ovatu is notified of your intention to terminate.

7.3 It is your responsibility to retrieve all necessary Data from your Account prior to termination.

7.4 Ovatu may terminate this Agreement immediately, in its sole discretion, if:

  • (a) you breach any of the terms of this Agreement and do not remedy the breach within 5 days after receiving notice of the breach if the breach is capable of being remedied;
  • (b) Ovatu reasonably suspects that you are attempting to reverse engineer the Software;
  • (c) Ovatu considers that a request for Services is inappropriate, improper or unlawful;
  • (d) you fail to provide Ovatu with clear or timely instructions to enable Ovatu to provide you with the Services;
  • (e) Ovatu considers that the working relationship between the Parties has broken down including a loss of confidence and trust;
  • (f) there is an Insolvency Event; or
  • (g) for any other reason outside Ovatu’s control which has the effect of compromising Ovatu’s ability to provide you with the required Services within a required timeframe.

7.5 On termination of this Agreement, Ovatu may retain your documents (including copies) as required by law or regularity requirements. Your express or implied agreement to this Agreement constitutes your authority for Ovatu to retain or destroy documents in accordance with the statutory periods, or on termination of this Agreement.

8. YOUR OBLIGATONS

8.1 You warrant that all information including User information provided to Ovatu is true, accurate and complete.

8.2 You acknowledge and agree that you are responsible for how Users use the Services and that:

  • (a) each User uses the Services at their own risk;
  • (b) the Services will only be used for your or the User’s own lawful personal or business purposes in accordance with this Agreement;
  • (c) all usernames and passwords required to access the Services are kept secure and confidential;
  • (d) if there is any unauthorised use of your passwords or any other breach of security, you will immediately notify Ovatu of such activity;
  • (e) it is your responsibility to determine that the Services meet your and each User’s needs and are suitable for the purposes for which the Services are used;
  • (f) you are responsible for obtaining any consents, licences, permits and permissions from other parties as required for the Services to be provided, at your cost, and for providing Ovatu with the necessary consents, licences and permissions; and
  • (g) the reliability of the Services is dependent upon each User’s Device operating system, a User’s internet connection and choice of web-browser.

8.3 You acknowledge and agree that each User:

  • (a) is authorised to use the Services and to access any Data, User Information or other information they input into the Software or provide to Ovatu as required for the Services; and
  • (b) will keep all usernames and passwords required to access the Services secure and confidential.

8.4 You may use the Software on behalf of others or in order to provide services to others but if you do so you must ensure that you are authorised to do so and that all persons for whom or to whom services are provided comply with and accept all terms of this Agreement that apply to you.

8.5 Ovatu is not responsible to any person or entity other than you and nothing in this Agreement confers, or purports to confer, a benefit on any other person or entity. If you use the Services on behalf of or for the benefit of any third party, including Users, you agree that:

  • (a) you are responsible for ensuring that you have the right to do so;
  • (b) Ovatu does not warrant the fitness for purpose or suitability of the Software for such third party’s purposes and third parties may not rely on Ovatu for any purpose;
  • (c) you are responsible for authorising any person who is given access to your Data, and you agree that Ovatu has no obligation to provide any person or entity with access to such Data without authorisation from you and may refer any requests for access to the Data to you to address; and
  • (d) you will indemnify Ovatu, on first demand, against any and all claims, expenses, liabilities or losses arising out of or in connection with Ovatu’s refusal to provide any persons with access to your Data in accordance with this Agreement and Ovatu making Data available to any person with authorisation from you.

8.6 You remain solely responsible for complying with all applicable laws. It is your responsibility to ensure that the storage of and access to your Data via the Site and the App comply with laws which are applicable to you, including any laws requiring you to retain records of your Data.

8.7 Each User must have their own safeguards and back up processes in place to recover from any failures or loss of Data which might occur whilst using the Services and protect the confidentiality of your and Users’ Data with suitable management procedures, as you may see fit.

9. PROHIBITED USE

9.1 You acknowledge and agree that you and each User will not:

  • (a) use the Services in any manner that is illegal or violates any applicable law or regulation;
  • (b) attempt to circumvent or disable the Software or any technology features or measures in the Software by any means or in any manner;
  • (c) attempt to modify, copy, adapt or reproduce the Software except as necessary to use it for normal operation;
  • (d) attempt to decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for the Software;
  • (e) distribute, encumber, sell, rent, lease, sub-license, or otherwise transfer, publish or disclose the Software to any third party (except as permitted under this Agreement);
  • (f) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in or on the Software or used in connection with the Services;
  • (g) use the App, Site or Services in any manner to aid in the violation of any third party Intellectual Property, including but not limited to another’s copyrights, trade secrets and patents;
  • (h) take any action that interferes in any manner with Ovatu’s rights with respect to the App, Site or Services;
  • (i) attempt to undermine the security or integrity of Ovatu’s computing systems or where the Software, App, Site or any and all part of the Services is hosted by a third party, that third party’s computing systems and networks;
  • (j) use, or misuse, the App, Site or Services in any way which may impair the functionality of the App, Site or Services or other systems used to deliver the Software or impair the ability of any other user to use the App, Site or Services;
  • (k) attempt to gain unauthorised access to any materials, other than those to which you have been given express permission to access, or to the computer system on which the Software is executed or Services provided; and
  • (l) transmit or input into the App, Site or Software any files that may damage any other person's Devices or software, content that may be offensive or material or Data in violation of any law (including any content protected by copyright or trade secrets which you do not have the right to use).

9.2 Title, ownership rights and Intellectual Property rights in and to any content displayed on the App, Site or Services, or accessed through the App, Site or Services, are the property of the applicable content owner and may be protected by applicable copyright or other law. This Agreement gives you no rights to such content.

9.3 You acknowledge that any breaches of this clause may lead to termination of this Agreement.

10. PRIVACY POLICY

10.1 Ovatu agrees to comply with the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines as amended from time to time, as set out in our Privacy Policy which is available on our Site.

10.2 You will be taken to have read the terms of the Privacy Policy when you accept the terms of this Agreement.

11. INTELLECTUAL PROPERTY

11.1 If you hold a current Subscription, Ovatu grants you a personal, non-exclusive, non-transferable, limited and revocable licence to use any reports or related materials containing your Data generated from the Services for your business purposes. All other uses are prohibited unless you obtain Ovatu’s prior written consent.

11.2 Title to, and all Intellectual Property rights in the App, Site or Services and any documentation relating to the Services remains the property of Ovatu and its successors and permitted assigns. Your right to use such Intellectual Property is subject to the terms of this Agreement.

11.3 You grant Ovatu a non-exclusive, worldwide, royalty-free, irrevocable license to use any Intellectual Property which subsists in any materials you provide in connection with your User Account or otherwise make available via the App, Site or Services, including intellectual property rights, including copyright in any third party logos or other materials.

11.4 You grant Ovatu a licence to use, copy, transmit, store, and back-up your information and data for the purposes of enabling you to access and use the Software and for any other purpose related to provision of Services to you and the performance of Ovatu’s obligations under this Agreement.

11.5 It is your responsibility to maintain copies of all Data which are inputted into the Software. Ovatu will endeavour to prevent Data loss, however, as the Software operates as a cloud-based service, provided through third parties, Ovatu does not make any guarantees that there will be no loss of Data and does not represent or warrant that access to the Services, the Data or an Account will be available without interruption.

11.6 If the User enables third-party applications for use in conjunction with the Software, the User acknowledges that Ovatu may allow the providers of those third-party applications to access any inputted Data as required for the interoperation of such third-party applications with the Software. Ovatu is not responsible for any disclosure, modification or deletion of Data resulting from any such access by third-party application providers.

12. UPDATES, SUPPORT AND AVAILABILITY OF SERVICES

12.1 Ovatu may issue updates to the Services (Updates) from time to time for the duration of this Agreement.

12.2 You acknowledge that Ovatu has no obligation to provide you with any support for Updates to the Software, as agreed in this Agreement. Ovatu may, from time to time, issue updated versions of the Software and the Software may automatically connect to Ovatu or third-party servers via the internet to check for available Updates to the Software, and may automatically electronically update the version of the Software that you are using on your computer. By installing or accessing the Software you agree to automatically request and receive Updates from Ovatu or third-party servers. You consent to such automatic updating, and agree that the terms and conditions of this Agreement will apply to all such Updates.

12.3 The Software may contain automatic communications features which relay certain non-personally identifiable information to Ovatu in connection with the operation of the Software. This information may include your Software settings and what version of the Software you are using. Ovatu may use this information for research purposes including statistical analysis of aggregate customer behaviour.

12.4 Ovatu can provide support to the User. If you require technical support, please contact Ovatu at hello@ovatu.com (worldwide) or using the contact details at the end of this Agreement.

12.5 Whilst Ovatu intends that access to the Software via the Site and the App should be available on a full-time basis, it is possible that the Site or the App is unavailable to due to maintenance or other development activity.

12.6 Where possible, Ovatu will provide notice to you and Users of any maintenance or development activity in advance.

13. FEEDBACK AND DISPUTE RESOLUTION

13.1 Your feedback is important to Ovatu. Ovatu seeks to resolve your concerns quickly and effectively. If you have any feedback or questions about the Services, please contact any member of Ovatu’s staff or use the contact details at the end of this Agreement.

13.2 If there is a dispute between the Parties in relation to this Agreement, the Parties agree to the following dispute resolution procedure:

  • (a) The complainant must tell the respondent in writing, the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute. The Parties agree to meet in good faith to seek to resolve the dispute by agreement between them (Initial Meeting).
  • (b) If the Parties cannot agree how to resolve the dispute at the Initial Meeting, any Party may refer the matter to a mediator. If the parties cannot agree on who the mediator should be, the complainant will ask the Law Society of New South Wales to appoint a mediator. The mediator will decide the time and place for mediation. The Parties must attend the mediation in good faith to seek to resolve the dispute.

13.3 Any attempts made by the Parties to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of the Parties under this Agreement, by law or in equity.

14. AUSTRALIAN CONSUMER LAW

14.1 Certain legislation including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth), and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of Services by Ovatu to you which cannot be excluded, restricted or modified (Statutory Rights).

14.2 Nothing in this Agreement removes your Statutory Rights as a consumer under the ACL. You agree that Ovatu’s liability for Services provided to consumers is governed solely by the ACL and this Agreement. Ovatu excludes all conditions and warranties implied by custom, law or statute except for your Statutory Rights.

14.3 Except for your Statutory Rights, all material and work is provided to you without warranties of any kind, either express or implied, and Ovatu expressly disclaim all warranties of any kind including but not limited to implied warranties of merchantability and fitness for a particular purpose.

14.4 If you are a consumer as defined in the ACL, the following applies to you: We guarantee that the services we supply to you are rendered with due care and skill; fit for the purpose that we advertise, or that you have told us you are acquiring the services for or for a result which you have told us you wish the services achieve, unless we consider and disclose that this purpose is not achievable; and will be supplied within a reasonable time. To the extent we are unable to exclude liability; our total liability for loss or damage you suffer or incur from our services is limited to us re-supplying the services to you, or, at our option, us refunding to you the amount you have paid us for the services to which your claim relates.

15. LIMITATION OF LIABILITY AND DISCLAIMERS

15.1 Ovatu and the User agree that Ovatu’s liability for the Services provided via the App, Site or Services is governed solely by the Australian Consumer Law to the extent applicable, and this Agreement.

15.2 You acknowledge that whilst Ovatu will take reasonable steps to ensure that the Services will be fit for the purposes as advertised, Ovatu gives no guarantees that:

  • (a) the Services will meet your requirements as the functionality of the Software is dependent upon configuration with the end user system and other components;
  • (b) the App, Site or Services will work in each of your desired use case scenarios; and
  • (c) the App, Site or Services can be executed on every operating system, as it is impossible to test each variant.

15.3 The Services use third party hosting services which are provided without any sort of warranties, and Ovatu cannot ensure that these third party hosting services are provided free of defect or without interruption.

15.4 Ovatu does not warrant that use of the App, Site or Services will be uninterrupted or error free. The operation of the App, Site or Services is dependent on public telephone services, computer networks and the internet, which can be unpredictable and may from time to time interfere with the use of the Services. Ovatu accepts no responsibility for any such interference or prevention of your or a User’s use of the Services.

15.5 You acknowledge and agree that while the information and materials provided on or via the App, Site or Services or otherwise provided to you by Ovatu is provided in good faith on an “as is” basis, Ovatu and its directors, officers, employees, contractors and agents accept no responsibility for and make no representations or warranties to you or to any other person as to the reliability, accuracy, currency or completeness of the information in such materials or information generally contained or produced via the App, Site or Services. You are solely responsible for (and where applicable you must ensure each User understands they are responsible for) determining the suitability of any Services and you rely on and information provided to you through the App, Site or Services at your own risk.

15.6 Ovatu makes no representations regarding, and accepts no responsibility for, the suitability, accuracy or legality of any forms or results produced by the Services.

15.7 All risk arising out of the use or performance of the Services remains with you. You understand and agree that the use of the Services, material or data downloaded or otherwise obtained through the use of the Services, is at your own discretion and risk and that you will be solely responsible for any infections, contaminations or damage to your computer, system or network. Ovatu is not responsible or liable for delays, inaccuracies, errors or omissions arising out of your use of the Services, any third party software or operating system.

15.8 To the maximum extent permitted by applicable law, Ovatu and its licensors disclaim all warranties, express or implied, including, without limitation, any implied warranties of merchantability, fitness for a particular purpose and non-infringement of third party intellectual property rights or lack of viruses, for the Software. In no event will Ovatu or its licensors be liable for any consequential, incidental, indirect, special, punitive, or other damages whatsoever arising out of this Agreement or the use of or inability to use the Software, even if Ovatu has been advised of the possibility of such damages.

15.9 You acknowledge that Ovatu may pursue any available equitable or other remedy against you as a result of your failure to ensure that each and every User complies with all provisions of this Agreement.

15.10 Ovatu or its licensors’ liability for breach of any of its obligations under this Agreement for the Services, or breach of any warranty implied by law, will be limited, to the extent permitted by law, to the total price paid for the Subscription to use the Services. Ovatu’s total liability to you for all damages in connection with the Services will not exceed the price paid by you under this Agreement for the Services. The foregoing limitations, exclusions and disclaimers will apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.

15.11 You acknowledge and agree that Ovatu will not be liable for any non-compensatory damages including punitive, aggravated, multiple, exemplary, liquated or any other non-compensatory damages or the consequences of non-payment.

16. INDEMNITY

16.1 You will be liable for and agree to indemnify, defend and hold Ovatu harmless from and against any and all claims, liabilities, suits, actions and expenses, including costs of litigation and reasonable legal costs, resulting directly or indirectly from:

  • (a) any information that is not accurate, up to date or complete or is misleading or a misrepresentation;
  • (b) any breach of this Agreement;
  • (c) any misuse of the Services, from or by you, your employees, contractors or agents or a User;
  • (d) any breach of law, regulation or licence by you or a User;
  • (e) any claim brought by a third party including any User against a Party arising out of the App, Site or Services;
  • (f) any claim by any third party, including a User that:
    • i. the grant, or exercise of any licence, of any Intellectual Property rights under this Agreement; or
    • ii. the supply or use of the App, Site or Services,
      infringes the Intellectual Property rights of any person.

16.2 You agree to co-operate with Ovatu (at your own expense) in the handling of disputes, complaints, investigations or litigation that arise as a result of your use of the App, Site or Services including but not limited to disputes, complaints, investigations or litigation that arises out of or relates to incorrect information you have given to Ovatu.

16.3 The obligations under this clause will survive termination of this Agreement.

17. NOTICE

17.1 Any notice required or permitted to be given to you under this Agreement will be addressed to you at the email address provided by you on the Registration Form.

17.2 Any notice required or permitted to be given to Ovatu under this Agreement must be addressed to Ovatu using the contact details at the end of this Agreement.

18. RELATIONSHIP OF PARTIES

18.1 Neither Party is authorised to bind the other Party in any way without the prior written consent of the other Party.

18.2 The Parties acknowledge and agree that they will not seek to bind the other Party other than with the prior written consent of the other Party.

19. RIGHTS OF THIRD PARTIES

19.1 Any person or entity who is not a party to this Agreement has no right to benefit under or to enforce any of the terms of this Agreement.

20. ASSIGNMENT

20.1 This Agreement is personal to you. You must not assign or deal with the whole or any part of your rights and/or obligations under this Agreement without the prior written consent of Ovatu.

20.2 Any purported dealing in breach of this clause is of no effect.

21. WAIVER OR VARIATION OF RIGHTS

21.1 Any failure or delay by a Party in exercising a power or right (either wholly or partially) in relation to this Agreement does not operate as a waiver or prevent that Party from exercising that power or right or any other power or right.

21.2 A Party is not liable to any other Party for any loss, cost or expense that may have been caused or contributed to by the failure, delay, waiver or exercise of a power or right.

22. POWERS, RIGHTS AND REMEDIES

22.1 Except as expressly stated to the contrary in this Agreement, the powers, rights and/or remedies of a Party under this Agreement are cumulative and are in addition to any other powers, rights and remedies of that Party. Nothing in this Agreement merges, extinguishes, postpones, lessens or otherwise prejudicially affects any power, right, or remedy that a Party may have at any time against the other Party to this Agreement or any other person.

23. FORCE MAJEURE

If performance of this Agreement or any obligation under this Agreement is prevented, restricted, or interfered with by causes beyond either Party’s reasonable control (Force Majeure), and if the Party unable to carry out its obligations gives the other Party prompt written notice of such event, then the obligations of the Party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, orders or acts of military or civil authority, national emergencies, insurrections, riots, wars, strikes, lock-outs and work stoppages. The excused Party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a Party if committed, omitted, or caused by such Party or its employees, officers, agents or affiliates.

24. CONSENTS AND APPROVALS

24.1 Where this Agreement provides that a Party may conditionally or unconditionally give or withhold any consent or approval in relation to any matter in this Agreement, that Party may in its absolute discretion, and without being obliged to give reasons for doing so, withhold any consent or approval or give consent or approval conditionally or unconditionally.

25. FURTHER ASSURANCE

25.1 Each Party must from time to time and in a timely manner do all things reasonably required of it by another Party to give effect to this Agreement.

26. ENFORCEABILITY

26.1 If any provision of this Agreement is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of this Agreement and the remainder of the provision in question will not be affected.

27. ENTIRE AGREEMENT AND UNDERSTANDING

27.1 The date of this Agreement is the date that this Agreement is accepted by you.
27.2 In respect of the subject matter of this Agreement:

  • (a) this Agreement contains the entire understanding between the Parties; and
  • (b) all previous oral and written communications, representations, warranties or commitments are superseded by this Agreement and do not affect the interpretation or meaning of this Agreement.

28. GOVERNING LAW AND JURISDICTION

28.1 This Agreement is governed by the laws of New South Wales and the Commonwealth of Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales.

29. DEFINITIONS

Insolvency Event means the occurrence of any of the following events in which a Party:

  • (a) is unable to pay its debts as they fall due;
  • (b) makes or commences negotiations with a view to making a general rescheduling of its indebtedness, a general assignment, scheme or arrangement or composition with its creditors;
  • (c) takes any corporate action or any steps are taken or legal proceedings are started for:
    • i. its winding-up, dissolution, liquidation or re-organisation, other than to reconstruct or amalgamate while solvent on terms approved by the other Party (which approval will not be unreasonably withheld); or
    • ii. the appointment of a controller, receiver, administrator, office manager or trustee; or
  • (d) seeks protection or is granted protection from its creditors, under any applicable legislation.
    Intellectual Property includes any and all intellectual and industrial property rights throughout the world, whether subsisting now or in the future and includes all copyright and analogous rights, all rights in relation to inventions (including patent rights), registered and unregistered trademarks, designs (whether or not registered or registrable), circuit layouts, trade names, trade secrets, business names, company names or internet domain names.

For any questions or notice, please contact Ovatu at:

Ovatu Pty Ltd ABN 92 159 394 484 ATF Ovatu Trading Trust ABN 74 504 757 106
C/o LegalVision ILP Pty Ltd
67 Fitzroy Street Surry Hills NSW 2010
Email: info@ovatu.com

Last update: 1 September 2017