Osler Community Software Master Subscription Agreement
THIS MASTER SUBSCRIPTION AGREEMENT (“AGREEMENT”) GOVERNS YOUR PURCHASE AND ONGOING USE OF OUR SERVICES.
IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL.
This agreement is between You and Us. You acknowledge that the Service is hosted for Us by salesforce.com.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on July 21, 2021. It is effective between You and Us as of the earliest date You accept this Agreement.
Table of Contents
1. Definitions
2. Purchased Services
3. Use of the Services
4. Third-Party Providers
5. Fees and Payment for Purchased Services
6. Proprietary Rights
7. Confidentiality
8. Warranties and Disclaimers
9. Mutual Indemnification
10. Limitation of Liability
11. Term and Termination
12. Who You Are Contracting With, Notices, Governing Law and Jurisdiction
13. General Provisions
1. DEFINITIONS
"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity.
"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
"Order Form" means the online subscription process completed at www.oslercommunity.com to purchase a subscription to use Osler Community’s Service
"Purchased Services" means Services that You or Your Affiliates purchase under an Order Form.
"Services" means the online, Web-based applications and platform provided by Us via http://www.salesforce.com, http://www.oslercommunity.com, My Osler app (for iOS and Android) and/or other designated websites as described in the User Guide, that are ordered by You as part of an Order Form, including associated offline components but excluding Third Party Applications.
"Third-Party Applications" means online, Web-based applications and offline software products that are provided by third parties, interoperate with the Services, and are identified as third-party applications.
“Third-Party Content” means videos, audio (such as podcasts) graphics, photos, text (such as articles) branding, interactive features, software, metrics and other materials provided by third parties on the Services
"User Guide" means the online User Guide for the Services that will be delivered with the Services.
"Users" means the person who registers to use the Website or the Application, or both, and where the context permits, includes any entity on whose behalf that person registers to use the Services, and any person or organisation that uses the Services with the authorisation of that person or entity.
"We," "Us" or "Our" means Osler Community Pty Ltd described in Section 13 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction).
"You" or "Your" means the You, or the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
"Your Data" means all electronic data or information submitted by You to the Purchased Services.
2. PURCHASED SERVICES
2.1. Provision of Purchased Services. We grant you a non-exclusive, non-transferable license to use and access the Purchased Services pursuant to this Agreement and the relevant Order Forms, or online subscription pages during a subscription term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.
2.2. User Subscriptions. Unless otherwise specified in the applicable Order Form or online subscription page, (i) Services are purchased as User subscriptions and may be accessed by no more than the specified number of Users, User subscriptions are for designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require on-going use of the Services.
3. USE OF THE SERVICES
3.1. Our Responsibilities. We shall: (i) provide to You basic support for the Purchased Services at no additional charge define basic support, and/or upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the Purchased Services available twenty four (24) hours a day, seven (7) days a week, except for: (a) planned downtime (of which We shall give at least eight [8] hours notice via the Purchased Services and which We shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Australian Eastern Standard Time/ Australian Eastern Daylight Time Friday to 3:00 a.m. Australian Eastern Standard Time/ Australian Eastern Daylight Time Monday), or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), or Internet service provider failures or delays, and (iii) provide the Purchased Services only in accordance with applicable laws and government regulations.
3.2. Your Responsibilities. You shall (i) be responsible for Your compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Your Data and of the means by which You acquired Your Data, including obtaining all licenses, permissions, and rights for use of Your Data in connection with this Agreement, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the User Guide and applicable laws and government regulations. You shall not (a) make the Services available to anyone other than You, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortuous material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.
3.3. Usage Limitations. Services may be subject to other limitations, such as, for example, limits on disk storage space, on the number of calls You are permitted to make against Our application and our views and what is fair and reasonable use in our sole discretion , programming interface, and, for Services that enable You to provide public websites, on the number of page views by visitors to those websites. Any such limitations are specified in the salesforce.com documentation. The Services provide real-time information to enable You to monitor Your compliance with such limitations.
4. THIRD-PARTY PROVIDERS
4.1. Acquisition of Third-Party Products and Services. We may offer Third-Party Applications for sale under Order Forms. Any other acquisition by You of third-party products or services, including but not limited to Third-Party Applications and implementation, customization and other consulting services, and any exchange of data between You and any third-party provider, is solely between You and the applicable third-party provider. We do not warrant or support third-party products or services, whether or not they are designated by Us as “certified” or otherwise, except as specified in an Order Form. No purchase of third- party products or services is required to use the Services.
4.2. Third-Party Applications and Your Data. If You install or enable Third-Party Applications for use with Services, You acknowledge that We may allow providers of those Third-Party Applications to access Your Data as required for the interoperation of such Third-Party Applications with the Services. We shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Third-Party Application providers. The Services shall allow You to restrict such access by restricting Users from installing or enabling such Third-Party Applications for use with the Services.
4.3. Transmission of Customer Data. The Services do not transmit Your Data outside the Services, however should You transmit Your Data to any other service, instruct Us to transmit Your Data to any other service or add on Third-Party Applications that transmit Your data outside the Services, whether or not you use the Services to do this, You do this at Your own risk and you acknowledge that the security and validity of the Your data is Your responsibility.
4.4. Third-Party Content. We may offer Third-Party Content for use with the Services. Third-Party Content is the responsibility of the person or entity that provides it to the Services.
4.5. Disclaimer. WE MAKE NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED WITH REGARD TO THE THIRD PARTY APPLICATIONS OR CONTENT. WE EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE/NON-INFRINGEMENT, QUALITY OF INFORMATION, QUIET ENJOYMENT, AND FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO THE THIRD PARTY APPLICATIONS OR CONTENT. YOU SHOULD CONSULT THE RESPECTIVE THIRD PARTY PROVIDERS FOR THE THIRD PARTY APPLICATIONS OR CONTENT FOR WARRANTY AND PERFORMANCE INFORMATION.
5. FEES AND PAYMENT FOR PURCHASED SERVICES
5.1. User Fees. You shall pay all fees specified in all Order Forms or online subscription pages hereunder. Except as otherwise specified herein or in an Order Form, or on an online subscription page (i) fees are quoted and payable in Australian dollars (AUD) (ii) fees are based on services purchased and not actual usage, (iii) payment obligations are non-cancellable and fees paid are non-refundable.
5.2. Invoicing and Payment. You will provide Us with (a) valid and updated Authorisation for Direct Debit, or (b) with valid and updated credit card information, or (c) if your subscription is being paid for by another entity, payment of an invoice. If You provide Authorization for Direct Debit or credit card information to Us, You authorize Us to charge for all Services listed in the Order Form or online subscription pages for the initial subscription term and any renewal subscription term(s). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form or online subscription pages. If the Order Form or online subscription pages specifies that payment will be by credit card, We will charge Your credit card for all Services amounts.
5.3. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is thirty (30) or more days overdue (or ten [10] or more days overdue in the case of amounts You have authorized Us to Direct DEBIT or charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full.
5.4. Payment Disputes. We may decide, in our sole discretion, not to exercise Our rights under 5.3 (Suspension of Service and Acceleration) if the applicable charges are subject to a reasonable and good-faith dispute and You are cooperating diligently to resolve the dispute. Such decision applies to each individual dispute on its own circumstances.
5.5. Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, " Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.
6. PROPRIETARY RIGHTS
6.1. Reservation of Rights. Subject to the limited license granted in Section 2.1, We reserve all rights, title and interest in and to the Services and all enhancements, customizations, and modifications to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein. The Services are licensed, not sold. The foregoing shall not be construed as granting Us any right, title, or interest in any intellectual property you develop independently without incorporation of or derived from our intellectual property or use of any of our Confidential Information.
6.2. Restrictions. You shall not (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivate works based on the Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
6.3. Ownership of Your Data. As between Us and You, You exclusively own all rights, title and interest in and to all of Your Data. You grant us a non-exclusive, royalty-free license to use Your Data in the performance of this Agreement, including hosting Your Data as part of the Services, and for the purposes of providing aggregated, anonymized benchmarking information, and personal information uploaded in a Users profile as part of the Collaboration functionality we provide called Chatter, to You and other customers of the Services. You also grant us license to provide access to your data to any entity you have authorized or agreed can have access to Your data.
6.4. Suggestions. We shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services. All such feedback shall be deemed non-confidential.
7. CONFIDENTIALITY
7.1. Definition of Confidential Information. As used herein, " Confidential Information" means all confidential information disclosed by a party (" Disclosing Party") to the other party (" Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
7.2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
7.3. Protection of Your Data. Without limiting the above, We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. We shall not (a) modify Your Data, (b) disclose Your Data except as compelled by law in accordance with Section 7.4 (Compelled Disclosure) or as expressly permitted by You either in writing or where you have authorised access to Your data, or (c) access Your Data except to provide the Services or prevent or address service or technical problems, or to collect aggregated, anonymised data for benchmarking purposes, or to supervise posted data on Chatter, including deleting of posts or commenting on posts in the interests of Osler’s user community, or at Your request in connection with customer support matters. We shall comply with the Privacy Act 1988 (as amended).
7.4. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
7.5 Agreed Disclosure. When You become a customer, You agree to allow Us to reference You as a customer using Our technology on Our website and in print copy or marketing collateral.
8. WARRANTIES AND DISCLAIMERS
8.1. Our Warranties. We warrant that (i) the Purchased Services shall perform materially in accordance with the User Guide, and (ii) the functionality of the Purchased Services will not be materially decreased during a subscription term. In the event of a breach of the foregoing warranties, Our sole and exclusive liability and Your sole and exclusive remedy will be to use reasonable efforts to correct the defective Purchased Service. In the event We are unable through reasonable efforts to correct the defective Purchased Service within thirty (30) days from receipt of notice from You of the breach, You may elect to terminate this Agreement and receive a pro-rated refund of any pre-paid, unused recurring fees for the non-conforming Services.
8.2. Mutual Warranties. Each party represents and warrants that (i) it has the legal power to enter into this Agreement, and (ii) it will not transmit to the other party any Malicious Code.
8.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 8, NEITHER PARTY MAKES ANY OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR TITLE/NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
Osler Certifications and other achievement recognition provided within the Service does not imply that a User is fit for purpose to perform a specific medical procedure or operate a specific medical device.
To the extent permitted under applicable law, no responsibility is assumed for any injury and/or damage to persons, animals or property as a matter of products liability, negligence or otherwise, or from any use or operation of any ideas, instructions, methods, products or procedures contained in the Service. Medical and health care providers/clinicians should exercise their own independent clinical judgment. No suggested test or procedure should be carried out unless, in the provider's/clinician’s judgment, its use is justified.
You have an implied responsibility to use the newly acquired information to enhance patient outcomes and Your and Your Users own professional development. The information presented in the Service’s training activities is not meant to serve as a guideline for patient management. Any procedures, medications, or other courses of diagnosis or treatment discussed or suggested in any of the Service’s training activities should not be used by clinicians without evaluation of their patient’s conditions and possible contraindications and/or dangers in use, review of any applicable manufacturer’s product information, and comparison with recommendations of other authorities.
9. MUTUAL INDEMNITIES
9.1. Indemnities by Us. We shall defend You against any claim, demand, suit, or proceeding (" Claim") made or brought against You by a third party alleging that the use of the Purchased Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify You for any damages finally awarded against, and for reasonable attorney’s fees incurred by, You in connection with any such Claim; provided, that You (a) promptly give Us written notice of the Claim; (b) give Us sole control of the defence and settlement of the Claim (provided that We may not settle any Claim unless the settlement unconditionally releases You of all liability); and (c) provide to Us all reasonable assistance, at Our expense If a Claim of infringement indemnified under this Section occurs, or if We determine a claim is likely to occur, We will have the right, in Our sole discretion, to either (i) procure for You the right or license to continue to use the Purchased Services free of the infringement claim, or (ii) modify the Purchased Services to make them non-infringing, without loss of material functionality. If neither of these remedies is reasonably available to Us, We may, in Our sole discretion, immediately terminate this Agreement and return the prorated portion of any pre-paid, unused fees for the relevant Purchased Services. Notwithstanding the foregoing, We will have no obligation with respect to any claim of infringement that is based upon or arises out of (i) the use or combination of the Purchased Services with any hardware, software, products, data, or other materials not provided by Us, (ii) modification or alteration of the Services by anyone other than Us, (iii) use of Purchased Services in excess of the rights granted in this Agreement, or (iv) our permitted use of Your Data and any other materials and intellectual property furnished by You (collectively, the “Excluded Claims”).
9.2. Indemnities by You. You shall defend Us against any Claim made or brought against Us by a third party arising out of the Excluded Claims, and shall indemnify Us for any damages finally awarded against, and for reasonable legal fees incurred by, Us in connection with any such Claim; provided, that We (a) promptly give You written notice of the Claim; (b) give You sole control of the defence and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally release Us of all liability); and (c) provide to You all reasonable assistance, at Our expense.
9.3. Exclusive Remedy. This Section 9 (Mutual Indemnities) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this Section.
10. LIMITATION OF LIABILITY
10.1. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF $100,000 OR THE AMOUNT PAID BY YOU HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 5 (FEES AND PAYMENT FOR PURCHASED SERVICES).
10.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
10.3. Intellectual Property. The foregoing limitations and exclusions of liability shall not apply to or limit either party’s liability for infringement of the other party’s intellectual property rights.
11. TERM AND TERMINATION
11.1. Term of Agreement. This Agreement commences on the date You accept it and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated.
11.2. Term of Purchased User Subscriptions. User subscriptions purchased by You commence on the start date specified in the applicable Order Form or online subscription pages and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form or online subscription pages, all User subscriptions shall automatically renew for additional periods equal to the expiring subscription term, unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the relevant subscription term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless We have given You written notice of a pricing increase at least thirty (30) days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter.
11.3. Termination for Cause. A party may terminate this Agreement for cause: (i) upon thirty (30) days written notice to the other party of a material breach if such breach has not been rectified at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
11.4. Refund or Payment upon Termination. Upon any termination for cause by You, and subject always to our sole discretion, we shall refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by Us, You shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.
11.5. Return of Your Data. Upon request by You made within thirty (30) days after the effective date of termination of a Purchased Services subscription, We will make available to You for download a file of Your Data in comma separated value (.csv) format along with attachments in their native format. After such thirty (30) day period, We shall have no obligation to maintain or provide any of Your Data.
11.6. Surviving Provisions. Section 5 (Fees and Payment for Purchased Services), 6 (Proprietary Rights), 7 (Confidentiality), 8.3 (Disclaimer), 9 (Mutual Indemnification), 10 (Limitation of Liability), 11.4 (Refund or Payment upon Termination), 11.5 (Return of Your Data), 12 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction) and 13 (General Provisions) shall survive any termination or expiration of this Agreement.
12. WHO YOU ARE CONTRACTING WITH, NOTICES, GOVERNING LAW AND JURISDICTION
12.1. General. Who You are contracting with under this Agreement, who You should direct notices to under this Agreement, what law will apply in any lawsuit arising out of or in connection with this Agreement, and which courts can adjudicate any such lawsuit, depend on where You are domiciled.
Any disputes, actions, claims or causes of action arising out of or in connection with this Agreement (or the Service) shall be subject to the exclusive jurisdiction of the state and federal courts located in Queensland, Australia.(unless we advise otherwise). If any provision is held by a court of competent jurisdiction to be contrary to law, such provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect.
12.2. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, or (iii) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Notices to You shall be addressed to the relevant billing contact designated by You.
12.3. Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.
13. GENERAL PROVISIONS
13.1. Export Compliance.(Where relevant) Each party shall comply with the export laws and regulations of the Commonwealth of Australia and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (i) each party represents that it is not named on any Australian government list of persons or entities prohibited from receiving exports, and (ii) You shall not permit Users to access or use Services in violation of any Australian export embargo, prohibition or restriction.
13.2. Relationship of the Parties. For the purposes of this agreement, the parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
13.3. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
13.4. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
13.5. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
13.6. Legal Fees. You shall pay on demand all of Our reasonable legal fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of Section 5.2 (Invoicing and Payment)
13.7. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, We shall refund to You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
13.8. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit, or addendum hereto or any Order Form, the terms of the body of this Agreement shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be deemed rejected and null and void.
13.9. Force Majeure. Except for the payment of money as described in Section 5 (Fees and Payment for Purchased Services), neither party will be liable for any failure or delay in performance under this Agreement which is due to any event beyond the reasonable control of such party, including without limitation, fire, explosion, unavailability of utilities or raw materials, Internet delays and failures, telecommunications failures, unavailability of components, labor difficulties, war, riot, act of God, export control regulation, laws, judgments or government instructions.
13.10. Non-Solicit. During the Term of this Agreement and continuing through the second anniversary of the termination of this Agreement, neither party may solicit any employee of the other party with whom the party has had contact in the performance of this Agreement, without the other party’s written consent. Notwithstanding the foregoing, neither party shall be precluded from (i) hiring an employee of the other party who independently approaches the party, or (ii) conducting general recruiting activities, such as participation in job fairs or publishing advertisements in publications or on Web sites for general circulation.