TERMS AND CONDITIONS

Welcome to Zeal Capital!

Thank you for visiting our terms and conditions (Terms), the most updated copy of which can always be found at zealcapital.com.au (Website). 

We are Zeal Capital Consulting Pty Ltd (ABN 40662165684)  (‘we’, ‘our’ or ‘us’) and we provide an automated finance quoting platform for resellers, as described on our Website (Platform).

These Terms govern your access to the Platform and our provision of the Services (as defined below), which we provide to you at no cost. In consideration of receiving access to the Platform, you agree to comply with these Terms.

By accepting an invitation to use the Platform, creating an Account, or otherwise using the Platform, you agree to be bound by these Terms which form a binding contractual agreement between you (the reseller entity or individual representative of a reseller entity) ('you' or 'your') and us.

We may change these Terms at any time by notifying you, and your continued use of the Services following such an update will represent an agreement by you to be bound by the Terms as amended.

In these Terms, capitalised words and phrases have the meanings given to them where they are followed by bolded brackets, or as set out in the Definitions table at the end of these Terms.

Please read these terms and conditions carefully before agreeing to proceed with the Services.

1. ELIGIBILITY

   1. By accepting these Terms, you represent and warrant that you have the legal capacity and authority to enter into a binding contract with us.

   2. The Platform is intended for use by authorised representatives of reseller businesses only. By using the Platform, you represent and warrant that:

      1. you are at least 18 years of age;

      2. you are an authorised representative of a reseller entity with authority to bind that entity to these Terms;

      3. you have not previously been suspended or prohibited from using the Platform; and

      4. you will use the Platform solely to generate indicative finance quotes for your corporate customers in connection with equipment sales.

   3. Please do not access the Platform if you do not meet the eligibility criteria in clause 1.1(b).

   4. If you are signing up not as an individual but on behalf of your company, your employer, an organisation, government or other legal entity (Represented Entity), then “you” or “your” means the Represented Entity and you are binding the Represented Entity to this agreement. If you are accepting this agreement and using our Services on behalf of a Represented Entity, you represent and warrant that you are authorised to do so.

2. TERM

   1. These Terms commence on the date you accept these Terms by clicking the acceptance checkbox during the Account registration process (Commencement Date) and continue indefinitely unless terminated by either party in accordance with clause 11.

   2. Either party may terminate this agreement at any time by providing written notice to the other party in accordance with clause 11.

   3. We may update these Terms from time to time by providing you with notice in accordance with clause 11. Your continued use of the Platform following such notice constitutes acceptance of the updated Terms.

3. THE services

   1. the platform and the services

      1. Subject to your compliance with these Terms, we will provide you with access to the Platform and the services, which include:

         1. a secure, two-factor authenticated login portal;

         2. the ability to forward cash quotes for equipment to the Platform via email;

         3. automated extraction of customer and equipment information from forwarded quotes;

         4. automated verification of Australian Business Numbers (ABNs);

         5. automated calculation of indicative finance quote pricing;

         6. generation of indicative finance quotes in a format suitable for sharing with corporate customers; and

         7. email delivery of a shareable link to the generated finance quote.

(collectively, the Services).

1. The Services are provided to you at no cost. We earn a commission only on finance deals that are funded through the Platform. You acknowledge and agree that:

   1. you have no obligation to use the Platform for any minimum number of quotes or transactions;

   2. the Platform is non-exclusive, and we may provide the same or similar services to your competitors; and

   3. there is no preferential pricing or treatment based on volume, relationship, or any other factor, all resellers using the Platform will receive the same indicative pricing for identical customer and equipment parameters.

2. indicative quotes and disclaimers

   1. You acknowledge and agree that all finance quotes generated by the Platform are indicative only and are not binding offers of finance.

   2. All finance quotes are subject to:

      1. final credit assessment and approval by the relevant funder;

      2. verification of all information provided;

      3. the accuracy of data extracted by our process;

      4. the funder's prevailing rates, fees, and lending criteria at the time of application;

      5. the funder's standard terms and conditions; and

      6. completion of the Funder's application and documentation requirements.

   3. You acknowledge and agree that:

      1. rates and fees may vary between the indicative quote and the final approved finance offer due to changes in funder pricing, changes in customer circumstances, or errors in data extraction or input assumptions;

      2. extraction may contain errors, the Services use technological processes to extract customer and equipment information from forwarded quotes, and this process may result in inaccuracies, omissions, or misinterpretation of data;

      3. you are responsible for verifying all information in the indicative quote before sharing it with your customer;

      4. indicative quotes are based on pricing current at the time of generation and may no longer be accurate if rates or fees change before a finance application is submitted;

      5. the indicative quote is provided for your internal use and for sharing with your corporate customers only, and must not be used for any other purpose; and

      6. you must include appropriate disclaimers when sharing indicative quotes with customers, making clear that the quote is indicative and subject to Funder approval.

   4. We will include standard disclaimers and terms on all generated finance quotes as recommended by Funder(s). We reserve the right to add or modify disclaimers at any time to protect our interests and those of such Funder(s).

3. ACCOUNTS

   1. To use the Services, you must have an Account. You cannot create your own Account. We will create your Account and send you an invitation link to complete the registration process.

   2. As part of the Account registration process, you will be required to accept these Terms by clicking an acceptance checkbox. By clicking the checkbox and completing the registration, you agree to be bound by these Terms and acknowledge that you have read and understood them.

   3. You warrant that any information you give to us in the course of completing the Account registration process is accurate, honest, correct and up-to-date.

   4. Once you complete the Account registration process, we may, in our absolute discretion, choose to accept you as a registered user within the Website and provide you with an Account.

   5. We may, in our absolute discretion, suspend or cancel your Account for any reason, including for any failure by you to comply with these Terms.

4. DISCLAIMER

You acknowledge and agree that:

1. any information provided to you as part of or in connection with the Services, including all indicative finance quotes, is general in nature, may not be suitable for your customers' circumstances and does not constitute financial, legal or any other kind of professional advice;

2. you are responsible for ensuring that any finance quote or information you share with your customers is appropriate for their circumstances, and you should recommend that customers seek independent financial advice before entering into any finance arrangement; and

3. it is your responsibility to comply with applicable Laws relevant to your business, including industrial relations Laws and privacy Laws.

4. PLATFORM licence

   1. Subject to your compliance with these Terms, we grant you a non-exclusive, non-transferable, revocable licence to access and use the Services for the sole purpose of generating indicative finance quotes for your corporate customers in connection with equipment sales.

   2. This licence is personal to you (or your Represented Entity) and may not be sublicensed, assigned, or transferred to any third party.

   3. We may from time to time, in our absolute discretion, release updates, enhancements, or modifications to the Services (Updates). Any Updates will not limit or otherwise affect these Terms. Updates may cause downtime or interruptions from time to time.

   4. We may change, suspend, or discontinue any features of the Services at any time on notice to you, or immediately without notice if required for security, legal, or operational reasons.

5. SUPPORT SERVICES

We will provide general support where reasonably necessary to resolve technical issues with the Platform (Support Services), the following terms apply unless otherwise specifically agreed in writing:

1. we will take reasonable steps to provide Support Services where necessary. You must first endeavour to resolve any issues with the Platform internally and we will not assist with issues that are beyond our reasonable control;

2. requests for Support Services will be responded to on a best endeavours basis and we provide no guarantee of Support Services being available 24/7 or that any request for Support Services will be responded to within a particular time frame;

3. you are responsible for all internal administration and managing access, including storing back-up passwords and assisting your Users to access and use the Platform; and

4. you will not have any claim for delay to your access to the Platform due to any failure or delay in Support Services.

1. DATA HOSTING

We will store User Data you upload to the Services using a third party hosting service selected by us (), subject to the following terms:

1. (hosting location) You acknowledge and agree that we may use storage servers to host the Services through cloud-based services, and potentially other locations outside Australia.

2. (service quality) While we will use our best efforts to select an appropriate hosting provider, we do not guarantee that the Hosting Services will be free from errors or defects or that User Data will be accessible or available at all times.

3. (data storage and usage) You acknowledge and agree that:

   1. all data submitted to the Services, including customer information, equipment schedules, and generated quotes, will be stored on our systems (or those of our third-party hosting providers);

   2. we may use such data for our internal business purposes, including to improve the Services, analyse trends, and develop commercial insights, provided that any commercialization of such data will be on an anonymised basis that does not personally identify any individual or entity;

   3. we will not share identifiable customer data with your competitors or other users; and

   4. despite the above clause 4(c)(iii) you acknowledge that the Services are non-exclusive and competitors may use the Services and receive indicative quotes based on similar or identical customer and equipment parameters.

4. (backups & disaster recovery) In the event that User Data is lost due to a system failure (e.g. a database or webserver crash), we cannot guarantee that any backup will be available, or if available that such a backup will be free from errors or defects.

1. CLIENT OBLIGATIONS

   1. CLIENT MATERIAL

      1. You warrant that:

         1. all information, documentation and quotes you forward to the Services are complete, accurate, and up-to-date;

         2. you have all necessary rights and consents to provide such information to us and to have it processed through the Services; and

         3. you will not submit any customer information without a lawful basis for doing so.

      2. You release us from all liability in relation to any loss or damage arising out of or in connection with the Services, to the extent such loss or damage is caused or contributed to by information, documentation or any other Material provided by you being incomplete, inaccurate or out-of-date.

2. credit checks and customer consent

You acknowledge and agree that:

1. every finance quote request submitted through the Services may result in a credit check being conducted by us or any Funder(s) on the customer's corporate entity;

2. a credit check on a corporate entity does not require the entity's consent under applicable laws, provided the check is conducted for a legitimate business purpose related to assessing creditworthiness for a proposed finance arrangement;

3. however, if any Funder requires a credit check on an individual director of a corporate customer, written consent from that director will be required before such a check can be conducted;

4. you are responsible for:

   1. informing your customers that submitting a finance quote request may result in credit checks being conducted;

   2. obtaining any necessary consents from individual directors if required; and

   3. providing appropriate disclosures in accordance with applicable privacy and credit reporting laws;

5. we may be unable to provide a finance quote if required consents are not obtained; and

6. you indemnify us against any claims, losses, or liability arising from your failure to make appropriate disclosures or obtain required consents in relation to credit checks.

7. YOUR OBLIGATIONS

   1. You must, and must ensure that all Users authorized by you to access your Account:

      1. comply with these Terms at all times;

      2. use the Services only for their intended purpose of generating indicative finance quotes for corporate customers in connection with equipment sales;

      3. comply with all applicable laws, including privacy laws, consumer protection laws, and financial services laws;

      4. not use the Services for any unlawful, fraudulent, or deceptive purpose; and

      5. all necessary consents and authorizations from customers before submitting their information to the Services.

   2. You are solely responsible for ensuring that all Users comply with these Terms. You acknowledge and agree that:

      1. we will have no liability for any breach of these Terms by your Users;

      2. you indemnify us in respect of any loss, damage, or liability arising from any breach of these Terms by you or your Users; and

      3. we may immediately suspend or terminate your Account if we become aware of any breach by you or your Users.

   3. You acknowledge and agree that we will have no liability in respect of any damage, loss or expense which arises in connection with your, your Personnel’s, or any User’s, breach of these Terms, and you indemnify us in respect of any such damage, loss or expense.

   4. You must not, and must not encourage or permit any User, Personnel or any third party to, without our prior written approval:

      1. upload consumer (non-corporate) customer information using the Platform;

      2. upload sensitive information beyond what is reasonably necessary to generate a finance quote;

      3. upload any inappropriate, offensive, illicit, illegal, pornographic, sexist, homophobic or racist material using the Platform;

      4. upload any material that is owned or copyrighted by a third party;

      5. make copies of the Documentation or the Platform;

      6. adapt, modify or tamper in any way with the Services;

      7. remove or alter any copyright, trade mark or other notice on or forming part of the Services;

      8. act in any way that may harm our reputation or that of associated or interested parties or do anything at all contrary to the interests of us or the Services;

      9. use the Services in a way which infringes the Intellectual Property Rights of any third party;

      10. create derivative works from or translate the Services;

      11. publish or otherwise communicate the Services to the public, including by making it available online or sharing it with third parties;

      12. integrate the Services with third party data or services, or make additions or changes to the Services, (including by incorporating APIs into the Services) other than integrating in accordance with any instructions provided by us in writing;

      13. sell, loan, transfer, sub-licence, hire or otherwise dispose of the Services to any third party, other than granting a User access as permitted under these Terms;

      14. decompile or reverse engineer the Services or any part of it, or otherwise attempt to derive its source code;

      15. share your Account or Account information, including log in details or passwords, with any other person and that any use of your Account by any person who is not the account holder is strictly prohibited. You must immediately notify us of any unauthorised use of your Account, password or email, or any other breach or potential breach of the Service’s security;

      16. use the Services for any purpose other than for the purpose for which it was designed, including you must not use the Services in a manner that is illegal or fraudulent or facilitates illegal or fraudulent activity (including requesting or accepting a job which includes illegal activities or purposes);

      17. make any automated use of the Services and you must not copy, reproduce, translate, adapt, vary or modify the Services without our express written consent; or

      18. attempt to circumvent any technological protection mechanism or other security feature of the Platform.

   5. If you become aware of misuse of your Account by any person, any errors in the material on your Account or any difficulty in accessing or using your Account, please contact us immediately using the contact details or form provided on our Website.

   6. You agree, and you must ensure that all Users agree:

      1. to comply with each of your obligations in these Terms;

      2. to sign up for an Account in order to use the Platform;

      3. that information given to you through the Platform, by us or another User, is general in nature and we take no responsibility for anything caused by any actions you take in reliance on that information; and

      4. that we may cancel your, or any User’s, Account at any time if we consider, in our absolute discretion, that you or they are in breach of, or are likely to breach, this clause 5.

1. FEES AND PAYMENT

   1. no cost to client

      1. The Services are provided to you at no cost. You are not required to pay any subscription fees, access fees, or other charges to use the Platform.

      2. You acknowledge and agree that:

         1. you have no obligation to use the Services for any minimum number of quotes or to achieve any minimum transaction volume;

         2. there is no exclusivity we may provide the Services to other resellers, including your competitors;

         3. we do not guarantee that any particular number or volume of finance deals will be funded;

         4. commission arrangements are between us and our Funder(s) and do not affect your use of the Services; and

         5. we reserve the right to modify our commission arrangements with funders at any time without notice to you, provided that such changes will not result in any fees being charged to you.

2. customer pricing

   1. Indicative finance quotes generated by the Services are based on:

      1. pricing provided by Funder(s) via API at the time of quote generation; and

      2. the customer and equipment information extracted from the quote you forward to the Services.

   2. all resellers receive the same indicative pricing for identical parameters. There is no preferential pricing based on volume, relationship, or any other factor. If multiple resellers submit finance quote requests with identical customer details and equipment specifications, the indicative pricing will be the same.

   3. Final pricing on any funded deal is determined by the Funder based on their credit assessment and prevailing rates at the time of application, and may differ from the indicative quote.

3. INTELLECTUAL PROPERTY AND DATA

   1. INTELLECTUAL PROPERTY

      1. (Our ownership) We retain ownership of all Materials and Intellectual Property Rights in the Services, including:

         1. the Service’s software, source code, algorithms, and architecture;

         2. the extraction processes and methodologies;

         3. the API integrations and data processing systems;

         4. all text, graphics, logos, design elements, and user interface components; and

         5. the Documentation and any other materials provided to you in connection with the Services.

You acknowledge and agree that the Services and their underlying technology constitute our valuable proprietary and confidential information and trade secrets. You must not, and must not permit any third party to, reverse engineer, decompile, copy, replicate, or create derivative works based on the Services or any component of it

1. (Licence to you) You are granted a licence to the Services and you may make a temporary electronic copy of all or part of any materials provided to you for the sole purpose of viewing them and using them for the purposes of the Services. You must not otherwise reproduce, transmit, adapt, distribute, sell, modify or publish those materials or any Services content without prior written consent from us or as otherwise permitted by law.

2. customer data and quote data

Definitions

1. For the purposes of this clause:

   1. Customer Data means any information about your customers (including corporate entity details, ABNs, contact information, and any other data) that is submitted to or processed by the Services;

   2. Quote Data means any information contained in the quotes you forward to the Services, including equipment schedules, pricing, and specifications; and

   3. Generated Data means any finance quotes, calculations, analyses, or other output generated by the Services.

Your Rights and Obligations

1. You retain ownership of Customer Data and Quote Data that you submit to the Services, subject to the licence granted to us under clause 7.2(d).

2. You warrant that:

   1. you have all necessary rights, consents, and authorizations to submit Customer Data and Quote Data to the Services;

   2. the submission and processing of Customer Data and Quote Data through the Services does not and will not infringe any third-party rights, including Intellectual Property Rights and privacy rights; and

   3. the Customer Data and Quote Data is accurate and up-to-date.

Our Rights and Obligations

1. You grant to us (and our Personnel and Funder(s)) a non-exclusive, royalty-free, worldwide, and irrevocable licence to:

   1. use, process, store, and transmit Customer Data and Quote Data to the extent reasonably necessary to provide the Services, including:

      1. extracting data using technological processes;

      2. making API calls to verify ABNs;

      3. making API calls to funders to obtain pricing;

      4. generating and delivering finance quotes; and

      5. making API calls to verify credit profiles.

   2. Use Customer Data and Quote Data for our internal business purposes, including:

      1. improving our Services;

      2. developing and refining our extraction processes;

      3. analysing trends and developing commercial insights; and

      4. training machine learning models;

   3. commercialise aggregated, anonymised data derived from Customer Data and Quote Data, provided that such data:

      1. does not personally identify any individual;

      2. does not identify any specific corporate entity; and

      3. cannot reasonably be used to re-identify any individual or entity.

2. Notwithstanding clause 7.2(d)(iii), we will not:

   1. share identifiable Customer Data or Quote Data with your competitors or other resellers (except to the extent necessary to provide the Services, such as sharing data with our Funder(s)); or

   2. use Customer Data or Quote Data in a manner that would directly compete with you in relation to the specific customers and transactions you have submitted to the Services.

3. We reserve the right to remove any Customer Data, Quote Data, or Generated Data at any time if we consider it to be inappropriate, unlawful, or in breach of these Terms.

1. CONFIDENTIALITY

   1. Except as contemplated by these Terms, a party must not, and must not permit any of its Personnel, use or disclose to any person any Confidential Information disclosed to it by the other party without the disclosing party’s prior written consent.

   2. You acknowledge and agree that the Services, including its features, functionality, extraction processes, API integrations, and business model, constitutes our Confidential Information. You must not disclose any information about the Service’s operation or functionality to any third party without our prior written consent, except:

      1. to the extent necessary to use the Services for their intended purpose; or

      2. as required by law.

   3. Each party must promptly notify the other party if it learns of any potential, actual or suspected loss, misappropriation or unauthorised access to, or disclosure or use of Confidential Information or other compromise of the security, confidentiality, or integrity of Confidential Information.

   4. The notifying party will investigate each potential, actual or suspected breach of confidentiality and assist the other party in connection with any related investigation.

2. PRIVACY

   1. We collect personal information about you in the course of providing you with the Services, to contact and communicate with you, to respond to your enquiries and for other purposes set out in our Privacy Policy which can be found at https://www.zealcapital.com.au/privacypolicy .

   2. Our Privacy Policy contains more information about how we use, disclose and store your personal information and details how you can access and correct your personal information.

   3. By agreeing to these Terms, you agree to our handling of personal information in accordance with our Privacy Policy.

3. LIABILITY

   1. WARRANTIES AND LIMITATIONS

      1. (Service Limitations) The Services are made available to you strictly on an 'as is' and 'as available' basis. Without limitation, you acknowledge and agree that we do not guarantee and expressly disclaim any warranty that:

         1. the Services will be free from errors, defects, bugs, or interruptions;

         2. the Services will be accessible at all times or that access will be uninterrupted;

         3. the extraction process will be accurate;

         4. the ABN verification will be accurate or current;

         5. indicative finance quotes will be accurate or will match final approved pricing

         6. any finance application will be approved

         7. emails sent through the Services will be delivered promptly, or delivered at all

         8. information you receive or supply through the Services will be secure from unauthorized access; or

         9. any information provided through the Services (including Generated Data) is accurate, complete, or suitable for any particular purpose.

      2. (Exclusion) To the maximum extent permitted by applicable law, all express or implied representations and warranties (whether relating to fitness for purpose or performance, or otherwise) not expressly stated in these Terms are excluded.

      3. (Consumer law) Nothing in these Terms is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, you may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services we provide.

      4. (Disclaimer of liability for information) You acknowledge that we do not represent that our Services or any information we provide as a part of our Services is financial, legal, taxation, accounting or other advice specific to your business and agree that any information shared with you as a part of the Services is general in nature and is not specific to your business.

      5. (Disclaimer of liability for indicative quotes) You acknowledge and agree that:

         1. we are not a credit provider and do not provide finance, all finance is provided by Funder(s);

         2. we are not responsible for any decisions made by funders regarding credit assessment or approval;

         3. we do not guarantee that any indicative quote will result in an approved finance offer;

         4. we are not liable for any loss or damage arising from:

            1. inaccuracies in indicative quotes due to extraction errors, data input errors, or changes in funder pricing;

            2. reliance by you or your customers on indicative quotes;

            3. any difference between an indicative quote and a final approved finance offer;

            4. any rejection or non-approval of a finance application; or

            5. any changes in rates, fees, or terms between the time of quote generation and the time of finance application.

4. LIMITATION OF LIABILITY

   1. (Limitation of liability) To the maximum extent permitted by applicable law, our maximum aggregate liability to you in respect of loss or damage sustained by you under or in connection with these Terms or the Services is limited to $1,000 AUD (or, if we have received any commission from funded deals generated through your use of the Services, the lesser of $1,000 AUD and the total commission received by us in respect of your deals in the 6 months preceding the first event giving rise to the relevant liability).

   2. (Indemnity) You agree at all times to indemnify and hold harmless Zeal Capital Pty Ltd and its officers, employees and agents (“those indemnified”) from and against any loss (including reasonable legal costs) or liability incurred or suffered by any of those indemnified where such loss or liability was caused or contributed to by you or you officers’, employees’ or agents’:

      1. negligent, fraudulent or criminal act or omission;

      2. breach of clause 5.2 (Credit Checks and Customer Consent) or your failure to obtain required consents or make required disclosures to customers; or

      3. any claim by a customer or third party arising from your misuse of the Services or any indicative quote generated through the Services.

   3. (Consequential loss) We will not be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with these Terms or any goods or services provided by us, except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth) or any other applicable law.

5. CANCELLATION AND TERMINATION

   1. CANCELLATION BY US

We may terminate these Terms in whole or in part immediately by written notice to you, at any time for any reason, including if:

1. you, a member of your Personnel, or a User, are in breach of any term of these Terms; or

2. you become subject to any form of insolvency or bankruptcy administration.

3. CANCELLation by you

   1. You may terminate your use of the Services for convenience at any time by providing written notice to us. Termination will take effect immediately upon receipt of your notice (or on such later date as you specify in the notice).

   2. Upon termination, your access to the Services will cease. You should retrieve any necessary Customer Data or Quote Data before termination, as we will have no obligation to retain such data after termination.

4. TERMINATION FOR CAUSE

   1. If a party (the Notifying Party) considers that the other party is in breach of this agreement (the Breach), the Notifying Party may provide a notice to the other party the nature and details of the Breach.

   2. The other party will have 10 Business Days (or longer, in the Notifying Party’s discretion) to rectify the Breach (the Rectification Period).

   3. After the Rectification Period, the Notifying Party will notify the other party that:

      1. where the Breach has been successfully rectified, that the agreement will continue; or

      2. where the Breach has not been successfully rectified, that this agreement is terminated (Termination for Breach Notice).

   4. Following a Termination for Breach Notice:

      1. your Services access will immediately terminate and you and your Users will no longer have access to the User Data or your Account; and

      2. if you are the Notifying Party, no fees will be payable by you (unless later found that such termination was invalid).

5. Other Consequences for TERMINATION

   1. Upon termination of these Terms you will no longer have access to the Services, your Account or your User Data and we will have no responsibility to store or otherwise retain any User Data. You release us in respect of any loss or damage which may arise out of us not retaining any User Data beyond that point.

   2. Notwithstanding termination or expiry of your Account, this agreement any provisions of these Terms which by its nature would reasonably be expected to survive after termination or expiry, including without limitation clauses 7, 8 and 10, will continue to apply.

1. DISPUTE RESOLUTION

   1. A party claiming that a dispute has arisen under or in connection with this agreement must not commence court proceedings arising from or relating to the dispute, other than a claim for urgent interlocutory relief, unless that party has complied with the requirements of this clause.

   2. A party that requires resolution of a dispute which arises under or in connection with this agreement must give the other party or parties to the dispute written notice containing reasonable details of the dispute and requiring its resolution under this clause.

   3. Once the dispute notice has been given, each party to the dispute must then use its best efforts to resolve the dispute in good faith. If the dispute is not resolved within a period of 14 days (or such other period as agreed by the parties in writing) after the date of the notice, any party to the dispute may take legal proceedings to resolve the dispute.

2. FORCE MAJEURE

   1. We will not be liable for any delay or failure to perform our obligations under this agreement if such delay or failure arises out of a Force Majeure Event. 

   2. If a Force Majeure Event occurs, we must use reasonable endeavours to notify you of:

      1. reasonable details of the Force Majeure Event; and

      2. so far as is known, the probable extent to which We will be unable to perform or be delayed in performing its obligations under this agreement.

   3. Subject to compliance with clause 13(b), our relevant obligation will be suspended during the Force Majeure Event to the extent that it is affected by the Force Majeure Event.

   4. For the purposes of this agreement, a ‘Force Majeure Event’ means any:

      1. act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;

      2. strikes or other industrial action outside of the control of us;

      3. war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic; or

      4. any decision of a government authority in relation to COVID-19, or any threat of COVID-19 beyond the reasonable control of us, to the extent it affects our ability to perform our obligations.

3. NOTICES

   1. A notice or other communication to a party under these Terms must be:

      1. in writing and in English; and

      2. delivered via email to the other party, to the email address on record, or if no email address is on record, then the email address most regularly used by the parties to correspond regarding the subject matter of this agreement as at the date of this agreement (Email Address). The parties may update their Email Address by notice to the other party.

   2. Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party’s Email Address, notice will be taken to be given:

      1. 24 hours after the email was sent, unless that falls on a Saturday, Sunday or a public holiday in the state or territory whose laws govern this agreement, in which case the notice will be taken to be given on the next occurring business day in that state or territory; or

      2. when replied to by the other party,

whichever is earlier.

1. GENERAL

   1. GOVERNING LAW AND JURISDICTION

This agreement is governed by the law applying in New South Wales. Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.

1. WAIVER

No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.

1. SEVERANCE

Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.

1. JOINT AND SEVERAL LIABILITY

An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.

1. ASSIGNMENT

A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.

1. ENTIRE AGREEMENT

This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.

1. INTERPRETATION

   1. (singular and plural) words in the singular includes the plural (and vice versa);

   2. (currency) a reference to $; or “dollar” is to Australian currency;

   3. (gender) words indicating a gender includes the corresponding words of any other gender;

   4. (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;

   5. (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;

   6. (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;

   7. (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;

   8. (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;

   9. (headings) headings and words in bold type are for convenience only and do not affect interpretation;

   10. (includes) the word “includes” and similar words in any form is not a word of limitation; and

   11. (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision.

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