A. The Customer wishes to obtain a licence to promote and use the Services for a Fee.
Unless this Agreement explicitly states otherwise, expressions used in the Agreement have the following meanings:
Account means the Customer’s account to access the Service.
Agreement means this document and any approved Project Scope.
Application means the mobile application created by Norbit for use by the Customer.
Change Request Form means the document which sets out a proposal by the Customer for a modification to the Application or Software
Commencement Date means the date that the parties execute this Agreement.
Confidential Information means information that is by its nature confidential, including but not limited to information relating to the: (a) personnel, policies, practices, clientele or business strategies of the parties; (b) Intellectual Property Rights of either party; (c) the terms of the Agreement; but does not include information: (d) already rightfully known to the receiving party at the time of disclosure by the other party; or (e) in the public domain (including information made publicly available via a mechanism in the Software by the Customer) other than as a result of disclosure by a party in breach of its obligations of confidentiality under the Agreement.
Consequential Loss means loss of revenue, loss of profits, loss of anticipated savings or business, pure economic loss, loss of data, loss of value of equipment (other than the cost of repair), loss of opportunity or expectation loss, and any other form of consequential, special, indirect, punitive or exemplary loss or damages.
Cost means any costs, expenses, losses, damages, claims, demands, proceedings, and other liability.
End User means any person who uses the Application, generally a patron of the Customer.
Fee means any amount payable by the Customer to Norbit in connection with this Agreement as stipulated by Norbit from time to time.
Guide means the instructional guide or manual published by Norbit from time to time which provides information and instructions in relation to the Application and Software.
Insolvency Event means in respect of a party: (a) the appointment of an administrator, a receiver or receiver and manager in respect of that party; (b) an application to a court or an order for the winding up of the party; or (c) the occurrence of anything analogous or having a substantially similar effect to any of the preceding events.
Intellectual Property Right means all present and future rights conferred by statute, common law or equity in or in relation to business names, circuit layouts, computer software, confidential information, copyright, designs, domain names, formulas, inventions, knowhow, patents, recipes, trade marks, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic field, the benefit of any application to register such a right and the benefit of any renewal or extension of such a right.
Major Update means a modification or update which alters the users experience in a significant manner.
Minor Update means a modification or update that includes small bug fixes, minor alterations to the look and feel of the Application or other modifications or updates which do not alter the user experience in a significant manner.
Permitted Locations means locations (generally the Customer’s business premises) where the Customer may deploy the Application.
Personal Information has the meaning given to that term in the Privacy Act 1988 (Cth).
Privacy Law means: (a) the Privacy Act 1988 (Cth); and (b) any code registered under the Privacy Act or Australian Privacy Principles.
Project Scope means the material and documentation as prescribed by Norbit from time to time which sets out the deliverables, features, deadlines, quotes and preliminary designs of the Application.
Representative includes an employee, agent, officer, director, auditor, advisor, researcher, partner, consultant, contractor, sub-contractor or related entity of that person or of a related body corporate of that person.
Service means any service provided by Norbit in connection with the development of the Application and/or the Software.
SLA means the agreed service levels.
Software means the online loyalty platform for retailers and customers (including the mobile application and cloud-based dashboard) and includes all material (including tangible and intangible information), software (in source and object code forms), web applications, images, files, manuals, documents, devices, data, databases, supplied, created, written, developed or otherwise brought into existence (whether before, on or after the date of this Agreement) by us or on our behalf, and all their subsequent versions, updates and enhancements.
Submitted Materials means any material including documents, information or data provided by the Customer to Norbit in connection with developing the Application or administrating the Software.
Term means the period of time agreed.
In this Agreement: (a) headings are for convenience only and do not affect interpretation; and unless the context indicates a contrary intention: (b) an obligation or liability assumed by, or a right conferred on, two or more parties binds or benefits all of them jointly and each of them severally; (c) the expression “person” includes an individual, the estate of an individual, a corporation, an authority, an association or a joint venture (whether incorporated or unincorporated), a partnership and a trust; (d) a reference to any party includes that party’s executors, administrators, successors and permitted assigns, including any person taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee; (e) a reference to any statute or to any statutory provision includes any statutory modification or re-enactment of it or any statutory provision substituted for it, and all ordinances, by-laws, regulations, rules and statutory instruments (however described) issued under it; (f) words importing the singular include the plural (and vice versa), and words indicating a gender include every other gender; (g) references to parties, clauses, schedules, exhibits or annexures are references to parties, clauses, schedules, exhibits and annexures to or of this Agreement, and a reference to this Agreement includes any schedule, exhibit or annexure to this Agreement; (h) where 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; (i) references to payments to any party to this Agreement include payments to another person upon the direction of such party; (j) all payments to be made under this Agreement will be made by unendorsed bank cheque or other immediately available funds; and (k) the word “includes” in any form is not a word of limitation.
2. Agreement length
This Agreement will commence on the Commencement Date and will continue: (a) for the Term; or (b) until the date of termination of this Agreement in accordance with clause 20.
If this Agreement is not terminated at the expiry of the Term, the Term will extend on a 12 month rolling basis until it is terminated after one party provides one (1) month’s written notice prior to the active term expiry date to the other party of its intention to terminate this Agreement.
2.3 Retrospective Application
If Norbit began providing the Services before this Agreement was executed, the Agreement will apply retrospectively from the date on which Norbit first provided the Services.
Norbit grants to the Customer a non-transferrable, non-exclusive and revocable licence to promote, and use the Services, subject to the terms and conditions of this Agreement.
The grant of the licence in clause 3.1 is subject to the following restrictions the Customer must not promote the Services outside of the Permitted Locations.
4.1 New Applications
(a) For each Application, the Customer will submit a Project Scope to Norbit. (b) Subject to the Project Scope being complete, Norbit will issue a quote to the Customer. (c) A quote or indication of a price issued by Norbit is an invitation to treat, not a contractual offer. (d) Any quote issued by Norbit is valid for 30 days from the date of issue. If the Customer does not accept a quote within 30 days, the quote will be deemed rejected by the Customer. (e) Norbit reserves the right to cancel or modify a quote if the Customer amends or modifies the Project Scope. (f) A quote will be considered accepted following the Customer acceptance in writing or payment of any deposit or any other monies in relation to an Application. (g) An approved Project Scope may only be cancelled in accordance with the terms and conditions of this Agreement or as agreed in writing between the parties.
4.2 Developing the Application
(a) The Customer must: (i) cooperate fully with Norbit to prevent delays in developing and delivery the Application; and (ii) provide all information required by Norbit for the purpose of developing the Application. (b) The Customer warrants that: (i) all of the information that it provides to Norbit is accurate and complete in all respects; and (ii) it will inform Norbit whenever any such information changes.
4.3 Submitted Material
(a) The Customer must not submit or cause to be submitted to Norbit any of the following: (i) any material that the Customer does not own or have the right to use; (ii) any Intellectual Property of any third party without the express consent of the third party; (iii) any material that is illegal, unlawful, improper, harmful, threatening, unlawful, defamatory, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, hateful, or otherwise objectionable; or (iv) any material that infringes the Intellectual Property Right of a third party.
4.4 Application Delays
(a) Norbit will keep the Customer informed of any delays and the timeline to remedy these delays. (b) Norbit will not be responsible for any delay in delivering the Application if such delay is the result of an act, omission or neglect by the Customer. (c) The Customer acknowledges and agrees that in the event of a delay, regardless if caused by Norbit or the Customer: (i) any time frames, milestones and/or deadlines will be extended by an appropriate number of days given the nature of the delay; (ii) the delay will not be considered a breach of this Agreement and the Customer will not be entitled to a refund of any money paid or waiver of any obligation concerning payments; and (iii) if a delay which is caused by the Customer continues for more than 60 days, Norbit may cease work on the Application and at Norbit’s sole discretion refund any Fees paid to date.
4.5 Acceptance Testing
(a) The Customer must within 28 days of delivery of the completed Application approve or reject the Application. If the Customer does not reject the Application in writing within 28 days, the Application will be deemed accepted. (b) If the Customer finds that an aspect of the Application or its results to be defective, the Customer must inform Norbit of the issue and allow Norbit to remedy the defect. (c) The parties agree that Norbit is under no obligation to remedy a defect if the reported defect was developed in accordance with the Project Scope.
4.6 Norbit’s right to suspend
Norbit reserves the right to limit or suspend the Customer’s access to the Services if the Customer is in breach of clause 4.3.
5. Publishing the Application
(a) Notwithstanding clause 4.2, the Customer releases Norbit from liability arising from delays associated with Apple Inc’s and/or Google Inc’s application approval process.
(b) In the event that Apple Inc and/or Google Inc rejects the Application, Norbit will use reasonable commercial endeavours to address any issues and/or respond to any questions posed by Apple Inc and/ or Google Inc.
6. Maintenance, Updates, Changes to the Application
6.1 Maintenance and Updates
(a) Norbit reserves the right to modify or update the Application from time to time. (b) The parties acknowledge that Norbit may be required to update the Application to remain in compliance with either Apple Inc. and the App Store, and/or Google Inc. and the Google Play Store’s standard. The parties agree that Norbit will not be liable for incompatibility or any Major Updates to an Application should that modification or update be required to remain compliant. (c) Norbit will inform the Customer of any planned modification or update to the Application: (i) in the case of a Minor Update, within a reasonable time prior to the updated Application being published. (ii) in the case of a Major Update, within 14 days prior to the updated Application being published or in the case of an emergency Major Update, as soon as practicable. (d) Norbit will use reasonable endeavours to ensure that any future version of the Application is backwards compatible with at least the most recent previous version, but the parties acknowledge that this will not always be possible.
6.2 Change Request
(a) The Customer may request changes or modifications to the Application during the Term by submitting a Change Request Form to Norbit. (b) Norbit will within 14 days of receiving a change request notice, inform the Customer: (i) if the change request, in Norbit’s absolute discretion, is suitable or possible to incorporate within the Application; (ii) the anticipated launch date; and (iii) any corresponding fees payable by the Customer in relation to the change request. (c) The Customer will within 30 days of receiving a notice issued by Norbit pursuant to clause 6.2(b) (“Change Request Scope”) either accept or reject the Change Request Scope. (d) If the Customer does not accept a Change Request Scope within 30 days, the Change Request Scope will be deemed rejected by the Customer. (e) For the avoidance of doubt, Norbit retains all title, ownership rights and Intellectual Property Rights, including copyright in relation to any deliverables in connection with a change request unless expressed otherwise in writing by Norbit.
6.3 Support and Maintenance
(a) If the Customer requires support and maintenance that is deemed in Norbit’s absolute discretion as out of scope, Norbit may charge the Customer an additional fee at Norbit’s then current hourly rates. (b) If Norbit reasonably determines that the requirement for any work outside the scope is caused by the fault or error of Norbit, the Customer is not obligated to pay for that additional work.
7.1 Required Accounts
The Customer acknowledges and agrees that to receive the benefits of the Services, the Customer may be required to create: (a) an Account; (b) an Apple developer account; (c) a Google developer account; and (d) must pay any associated fees.
7.2 Developer Account
The Customer agrees to provide Norbit access to its: (a) Apple developer account with admin level permission; and (b) Google developer account with developer level permission.
7.3 Security Responsibilities
(a) The Customer is solely responsible for: (i) keeping any usernames and passwords associated with its Account for the Services secure; and (ii) the use of its Account, irrespective of who is using it, even if it is used without the Customer’s permission. (b) Norbit agrees to keep any username and passwords associated with either an Apple of Google developer account secure. 8. Customer’s Obligations
8.1 General Obligations
8.2 Services not for Reselling
(a) The Customer must not enter this Agreement with the purpose of reselling the Services to a third party. (b) If the Customer wishes to resell Services, the Customer must enter into the Norbit Reseller Agreement.
9. Norbit’s Obligations
9.1 Norbit’s Obligations
Subject to the Customer complying with its obligations set out in the Agreement, for the duration of the Term, Norbit will: (a) develop, host and maintain the Application and the Software; and (b) meet or exceed the SLAs.
9.2 Representations and Warranties of Norbit
Norbit represents and warrants that: (a) the Application and Software is developed using a standard of care and skill expected of an entity who regularly acts in the capacity of an “app developer or software developer”; (b) in providing access to the Services it will comply with the law and with industry standards in accordance with relevant Australian law; (c) in providing access to the Application, Services and/or Software, it will not be infringing upon the Intellectual Property Rights of any third party; and (a) in the event that Norbit sells its business, Norbit will use its best endeavours to ensure that the new owners continue to provide the Services under the terms of the Agreement.
10. The Services
10.1 Provision of Services
(a) Norbit agrees to perform the Services: (i) pursuant to the Guides; and (ii) in accordance with this Agreement.
10.2 Services not Available Locally
The Customer agrees and accepts that the Software only be accessible using the Internet, and will not be available ‘locally’ from the Customer’s own servers or computer systems.
10.3 Parts of Norbit Controlled by Third Parties
The Customer agrees and accepts that the Software is or may be from time to time operated from servers owned and controlled by a third party. As such, the Customer acknowledges that certain functions are out of Norbit’s control, including: (a) databases; and (b) application infrastructure, and that unless contrary to the applicable law Norbit is not responsible for any event or action caused by any third party contemplated in this clause 10.3.
10.4 Norbit in Beta
(a) The Customer acknowledges and agrees that parts of the Software may be released by Norbit in a beta testing version, and that in such case, the Customer should use the Software with that standard of stability in mind. (b) The Customer agrees to inform all Customers of any beta released Software.
10.5 Maintenance, Updates, Changes, Inaccessibility and Errors
(a) Norbit reserve the right, with at least 5 Business Day’s notice, to make some or all of the Software inaccessible from time to time as is required for updates, maintenance and/or upgrades. Norbit will use reasonable endeavours to schedule planned updates, maintenance and/or upgrades outside of key retail periods. (b) From time to time, without notice, access to all or part of the Software may be disrupted or limited. During such an interruption, Norbit will use its reasonable endeavours to restore access to the Software as soon as practicable. (c) Norbit reserve the right to correct any errors on the Software, upgrade, maintain, tune, backup, amend, add to or remove features from, redesign, improve or otherwise alter the Software at Norbit’s sole and absolute discretion. (d) The Customer acknowledges and agrees that Norbit will not be liable for any loss or damage that the Customer or any other person incur by any changes made to the Software and/or the Customer not being able to access the Software or any part of it.
10.6 Security Responsibilities
Norbit will take reasonable steps to ensure that the Software is secure from unauthorised access consistent with generally accepted industry standards.
10.7 Third Party Content
The inclusion of any third party link does not imply any endorsement or recommendation of a linked website by Norbit. Norbit will not be responsible for any third party advertising content displayed on the Software. Any link on the Software to a third party website, or decision to accept any third party offer, is entirely at the Customer’s own risk.
(a) The Customer acknowledges and agrees that Norbit may subcontract any of its obligations of this Agreement to a third party (or multiple third parties) without notification to or consent from the Customer. (b) The use of a subcontractor will not release Norbit from any of its obligations pursuant to this Agreement.
The Customer has no authority to act for, or to bind, Norbit except as specifically provided in this Agreement or with the written consent of Norbit.
The Customer will pay Norbit the Fee as agreed.
12.2 Norbit right to change Fees
(a) Norbit may amend a recurring Fee at any time by providing 30 days notice to the Customer. (b) The parties will in good faith mutual agree to a new Fee. (c) In the event of a Fee change, the new Fee will be effective 30 days from the date the parties agree to a Fee change but no earlier than 12 months from the Commencement Date.
12.3 GST Wording
Words defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning in this clause.
If required by Norbit, the Customer will provide Norbit reasonable access to the records for the purposes of ensuring compliance with this Agreement.
14.2 Privacy Obligations
If Personal Information is disclosed to a party of this Agreement in the course of this Agreement, that party agrees that it will not: (a) sell the Personal Information to any third party; or (b) distribute or disclose Personal Information to any third party other than: (i) to its personnel and/or related bodies corporate; or (ii) third party servers; who will only use the Personal Information for the purposes contemplated by this Agreement.
14.3 No Warranty
(a) Norbit makes no warranties or guarantees that the manner in which Norbit manages Personal Information is compliant with any foreign privacy laws and it is the Customer’s sole and absolute responsibility to ensure it is compliant with any foreign privacy laws. (b) In the event that the Customer requests changes to the Services in order to achieve compliance, the Customer acknowledges and agrees that it will be liable for all work performed by Norbit.
14.4 The Privacy Act
For the purposes of clause 14.2 the term disclose is to have the same meaning as defined in the Privacy Act.
15. Use of Data
(a) Subject to clause 14 and 16 the parties agree that both parties may use data generated through the Application:
(i) The Customer may use data for marketing and research purposes without the consent of another party;
(ii) Norbit may use data for support and analysis purposes without the consent of another party; and
(iii) is compelled by law.
(b) The parties agree that ownership of the data resides with the Customer, and that any data used by Norbit will be de-identified.
16. Intellectual Property
16.1 Norbit’s Intellectual Property Rights
(a) All title, ownership rights and Intellectual Property Rights, including copyright in relation to Application and/or Software is owned or used under licence by Norbit. (b) Without Norbit’s express prior written consent, the Customer undertakes that it will not and will not permit any person to: (i) directly or indirectly alter, replicate, copy, recreate, create derivative work from, decompile, reverse engineer, reserve assemble, reserve compile, enhance, interfered with or with part of the Application and/or the Software or otherwise obtain, modify or use any source or object code, architecture, or algorithms contained in the Application and/or Software or any documentation associated with the Application and/or Software; (ii) interact with any Norbit trade mark (whether registered or not) that could cause any adverse effect to Norbit’s ownership and/or rights to the intellectual property; or (iii) copy or reproduce, or create an adaptation or translation of, all or part of the Application and/or Software in any way, except to the extent that reproduction occurs automatically through the ordinary use of the Application and/or Software in accordance with this Agreement; (iv) incorporate all or part of the Application and/or Software in any other webpage, site, application or other digital or non-digital format for purposes other than marketing and/or training; (v) (subject to other rights explicitly granted under this Agreement) sell, license, sublicense, lease, rent, distribute, disclose, permit access to, or transfer to any third party, whether for profit or without charge, any portion of the Application and/or Software on any medium; (vi) do anything that will infringe the Intellectual Property Rights of any third party; or (vii) attempt to do any of the above.
16.2 The Customer’s Intellectual Property
(a) Nothing in this Agreement will transfer ownership of the Submitted Material to Norbit. (b) The Customer grants Norbit a non-exclusive, royalty free license to use of any material supplied by the Customer in connection with the Application.
16.3 Threats and action
If the Customer becomes aware of any infringement or threatened infringement of any Intellectual Property Rights, the Customer must give notice pursuant to clause 24.1 to Norbit including full particulars of the infringement. Norbit may, in its absolute discretion, institute and prosecute an action against the infringer.
16.4 Provide all assistance
The Customer must each execute all documents and do all things reasonably necessary to aid and co-operate in the prosecution of any actions brought by Norbit under this clause.
16.5 Survival of Obligation
The operation of this clause survives the termination of this Agreement.
17.1 Exclusion of express warranties
Subject to the obligations of Norbit in respect of the provision of the Services under this Agreement, Norbit makes no warranties or guarantees: (a) that the Application and/or Software will be accessible at all times, uninterrupted or error free; (b) that any of the Application and/or Software is without bugs or viruses; (c) that any of the technical information is without error or inaccuracy; (d) that the Application and/or Software is immune to unauthorised access or security breach; and (e) in respect of the retention of, or continued accessibility of, any data.
17.2 Warranties as to capacity
Each party (including the Customer in its own capacity and on behalf of the Customer) represents and warrants to the other that: (a) it has full power and authority to execute an agreement and observe and perform all of its obligations; (b) it is not aware of any thing, matter or circumstance which may prevent it from fulfilling its obligations under the agreement; and (c) it is not insolvent and no receiver, receiver and manager, provisional liquidator, liquidator or other officer of the court has been appointed in relation to all or any of its affairs or material assets.
18. Limitation of liability
(a) The Customer acknowledges and agrees that: (i) Norbit is not responsible for the conduct or activities of any other user of the Services; and (ii) the Customer is entering into and acquiring goods or services under this Agreement for commercial purposes and not for domestic, personal or household use. (b) If the Customer is a consumer within the meaning of the Consumer Law, there are certain rights (such as the consumer guarantees implied by the Consumer Law, which cannot by law be excluded (Non-Excludable Condition). This clause is subject to those Non-Excludable Conditions. (c) Subject to the application of any applicable Non-Excludable Condition and to the maximum extent permitted by law, Norbit: (i) excludes from this Agreement all guarantees, conditions and warranties that might but for this clause be implied into this Agreement; (ii) excludes all liability to the Customer for any Costs, expenses, losses and damages suffered or incurred directly or indirectly by the Customer in connection with this Agreement, including using the Services, whether that liability arises in contract, tort or under statute; and (iii) will not, under any circumstances, be liable to the Customer for any Consequential Loss. (d) If Norbit’s liability under this Agreement cannot be lawfully excluded, to the maximum extent permitted by law, Norbit’s liability for breach of any Non-Excludable Condition is limited: (i) in the case of goods, to (at Norbit’s option) the replacement of the goods or the supply of equivalent goods; the repair of the goods; the payment of the cost of replacing the goods or of acquiring equivalent goods; or the payment of the cost of having the goods repaired; (ii) in the case of services, to (at Norbit’s option) the supplying of the services again; or the payment of the cost of having the services supplied again.
Norbit excludes all other liability to the Customer for any Costs, including Consequential Loss, suffered or incurred directly or indirectly by the Customer in connection with the Agreement, the Software and/or the Services, in connection with: (a) the occurrence of an Unforeseen Event as described in accordance with clause 24.2; (b) reliance on technical advice, modelling or calculations provided by Norbit; (c) the infringement or claimed infringement by any person other than Norbit or its Representatives of the Intellectual Property Rights including moral rights of any person in connection with the Agreement; (d) any unauthorised activity in relation to the Application and/or Software by the Customer or its Representatives; (e) the Customer’s use of or reliance on the Application and/or Software for a purpose other than the business purposes of the Customer or the reasonably expected purpose of the Application and/or Software; or (f) the Customer’s failure to fulfil its obligations under the Agreement. The foregoing limitation applies however the Costs are caused whether they arise in contract, tort (including by Norbit ‘s negligence), or under statute.
18.3 Norbit not liable for Consequential Loss
Norbit is not liable under this Agreement for any Consequential Loss arising out of a breach by it of this Agreement, including (without limitation) any liability under the indemnity in clause 19.
The Customer indemnifies and will keep Norbit and its Representatives indemnified against all liability arising from claims for: (a) libel, slander, defamation, product disparagement or indecent, false, misleading or deceptive conduct; (b) any breach of clause 8 (Customer’s Obligations); (c) any breach of clause 14 (Privacy); (d) any breach of the provisions of this clause 19.1; (e) infringement of Intellectual Property Rights; (f) piracy, counterfeiting, plagiarism, or unfair competition; (g) invasion of the right of Privacy; and (h) any incorrect, fraudulent or false information provided by the Customer.
20.1 Immediate Termination by Norbit for Default
Norbit may terminate this Agreement immediately by notice to the Customer if: (a) an Insolvency Event occurs in relation to the Customer; (b) the Customer commits any breach of any of its obligations under this Agreement and: (i) the breach is incapable of being remedied; or (ii) if the breach is capable of being remedied, the Customer has failed to remedy the breach within 10 Business Days after the receipt of the notice; or (iii) the Customer has been issued a notice of default more than three times during a 12 month period.
20.2 Immediate Termination by Customer for Default
Customer may terminate this Agreement immediately by notice to Norbit if: (a) an Insolvency Event occurs in relation to Norbit; (b) Norbit commits any breach of any of its obligations under this Agreement and: (i) the breach is incapable of being remedied; or (ii) if the breach is capable of being remedied, Norbit has failed to remedy the breach within 30 Business Days after the receipt of the notice; or (iii) Norbit has been issued a notice of default more than three times during a 12 month period.
21. Effects of Termination
21.1 Effects of Termination
On termination of this Agreement, the licence will terminate and: (a) the Customer must immediately; (i) cease all activities related to the promotion and use of the Services; (ii) destroy all documents and other materials (including all copies) in its possession relating to the Application and/or Software; (iii) do any further things as may be reasonably required by Norbit to protect its right, title and interest in the Services. (b) Norbit will remove the Application from the Apple App Store and/or the Google Play Store. (c) All payments must be finalised by the end of the current Term. (d) On termination of this Agreement in accordance with 20.2(a) the Customer may request for a copy of the source code and Norbit acting reasonably will provide a copy of the source code at a time and at a cost as agreed upon between the parties in writing.
22. Dispute Resolution
(a) Subject to clause 22(f) any dispute which arises between the parties in connection with this agreement (dispute) must be dealt with in accordance with the requirements of this clause 22, before either party will be entitled to commence proceedings against the other party in respect of the dispute. (b) The party claiming that a dispute has arisen (complainant) must give the other party a written notice setting out a detailed explanation of the nature of the dispute; and what action the complainant thinks will resolve the dispute (dispute notice). (c) Within 10 business days of the dispute notice being received by the other party, a nominated senior executive of each party must meet, act in good faith and use best endeavours to resolve the dispute at that meeting, or such subsequent meetings as may be reasonably required. (d) If the dispute is not resolved pursuant to clause 22(c) within 30 days of the dispute notice being received by the other party, the parties agree to attend a privately held mediation with a mediator appointed by the nominated senior executive or both parties and in the absence of agreement within 7 days of disagreement by such mediator as appointed by the President, or person in like office of the Resolution Institute. (e) If the dispute is not resolved within a further 30 days pursuant to clause 22(d) then either party may commence proceedings against the other party in respect of the dispute. (f) Nothing in this clause 22 prevents a party from seeking urgent injunctive or similar relief from a court.
(a) A party will not, without the prior written approval of the other party, disclose the other party’s Confidential Information. (b) A party will not be in breach of this confidentiality clause in circumstances where it is legally compelled to disclose the other party’s Confidential Information. (c) Notwithstanding any other provision of this clause, a party may disclose the terms of the Agreement (other than Confidential Information of a technical nature) to its related companies, solicitors, auditors, insurers and accountants. (d) Each party will take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of the Agreement, do not make public or disclose the other party’s Confidential Information.
23.2 Breach notifications
A party must notify the disclosing party in writing, giving full details known to it immediately, when it becomes aware of any actual, suspected, likely or threatened: (a) breach by any person of any obligation in relation to the Confidential Information; or (b) theft, loss, damage, or unauthorised access, use or disclosure of or to any Confidential Information. 22.3 Survival The obligations under this clause 23 survive termination of the Agreement.
Any communication under or in connection with this Agreement: (a) must be to the addressee from time to time; (b) must be in writing; (c) must be delivered or posted by prepaid post to the address, or sent by email to the addressee, in accordance with clause 24.1(d); and (d) If a notice is sent or delivered in the manner provided in 24.1(c) it must be treated as given to or received by the addressee in the case of: (1) delivery in person, when delivered; (2) delivery by post, on the tenth Business Day after posting; (3) delivery by email, at the earlier of the time stated in a read receipt sent by the recipient’s computer or when the message has been delivered to the email address of the addressee,
but if delivery is made after 5.00pm on a Business Day it must be treated as received on the next Business Day in that place.
24.2 Unforeseen Event
A party is not responsible for any loss arising out of any occurrences or condition beyond its control, including but not limited to acts of war (whether declared or not) or terrorism, the mobilisation of armed forces, civil commotion or riot, natural disaster, industrial action or labour disturbance, currency restriction, embargo, action or inaction by a government, a failure of a supplier, public utility or common carrier or computer disruption due to the effects of a computer virus, trojan, malware or other malicious code.
(a) The Customer may only assign, encumber, declare a trust over or otherwise create an interest in its rights under this document with the consent of Norbit. (b) Norbit may assign, encumber, declare a trust over or otherwise create an interest in its rights under this document without the consent of the Customer, and may disclose to any potential holder of the right or interest any information relating to this document or any party to it.
Norbit may amend this Agreement by providing the Customer 30 days written notice.
24.5 Liability for expenses
Each party must pay its own expenses incurred in negotiating, executing, stamping and registering this document.
24.6 Giving effect to this document
Each party must do anything (including execute any document), and must ensure that its employees and agents do anything (including execute any document), that the other party may reasonably require to give full effect to this document.
24.7 Waiver of rights
A right may only be waived in writing, signed by the party giving the waiver, and: (a) no other conduct of a party (including a failure to exercise, or delay in exercising, the right) operates as a waiver of the right or otherwise prevents the exercise of the right; (b) a waiver of a right on one or more occasions does not operate as a waiver of that right if it arises again; and (c) the exercise of a right does not prevent any further exercise of that right or of any other right.
Nothing in this Agreement is intended to create or be construed as creating a relationship of agency, joint venture or partnership between any of the parties. Unless expressly stated in this Agreement, no party may act as agent of or in any way bind another party to any obligation.
24.9 Warranties as to capacity
Each party represents and warrants to the other that: (a) it has full power and authority to execute this Agreement and observe and perform all of its obligations herein; (b) it is not aware of any thing, matter or circumstance which may prevent it from fulfilling its obligations under this Agreement; and (c) it is not insolvent and no receiver, receiver and manager, provisional liquidator, liquidator or other officer of the court has been appointed in relation to all or any of its affairs or material assets.
24.10 Operation of this document
(a) This document contains the entire agreement between the parties about its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this document and has no further effect. (b) Any right that a person may have under this document is in addition to, and does not replace or limit, any other right that the person may have. (c) Any provision of this document which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make this document enforceable, unless this would materially change the intended effect of this document.
24.11 Inconsistency with other documents
If this document is inconsistent with any other document or agreement between the parties, this document prevails to the extent of the inconsistency.
Neither party has entered into any contract under this Agreement in reliance on or as a result of any representation, promise, statement, conduct or inducement by the other otherwise than as set out in this Agreement.
This Agreement may be agreed to in any number of counterparts including where they are exchanged by email containing this Agreement as an unalterable attachment. All counterparts together will be taken to constitute one instrument.
Where this Agreement states that the consent or approval of Norbit is required, Norbit may: give or withhold that consent or approval in its absolute discretion; and give that consent or approval subject to conditions, unless this Agreement expressly states otherwise.
24.15 Liability of Parties
If a party consists of more than one person: an obligation of that party is a joint obligation of all of those persons and a several obligation of each of them; a right given to that party is a right given jointly and severally to each of those persons, and if exercised by one of them, is deemed to be exercised jointly; and a representation, warranty or undertaking made by that party is made by each of those persons.
24.16 Governing law
The laws of Queensland, Australia govern this Agreement. The parties submit to the non‑exclusive jurisdiction of courts exercising jurisdiction there.