Master Service Agreement

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1.

Acceptance

1.1

Fl0 Pty Ltd (ABN 41 648699 978) (we, us or our), provide the Services which are accessible at https://www.fl0.com, and may be available through other addresses and channels (Site).

1.2

These terms and conditions(Terms):

(a)

are between us and you, together the Parties and each a Party;

(b)

set out the terms andconditions upon which we agree to grant you a right to use the Services; and

(c)

are binding on you on and fromthe date on which you accept these Terms (Effective Date) until the dateon which your Account and these Terms are terminated in accordance with these Terms(Term).

1.3

You accept these Terms on the earlier of you:

(a)

clicking an “I accept”,“Sign up” or similar button or check box referencing these Terms;

(b)

accessing or using the Services.

1.4

If you create an Account and are agreeing to these Terms on behalf of a company, your employer, an organisation, government or other legal entity (Entity), then “you” means the Entity and you are binding that Entity to these Terms. If you are accepting these Terms on behalf of an Entity, you as an individual represent and warrant that you are authorised by the Entity to do so.

2.

Services

2.1

Inconsideration of payment of the Fees (as set out in the Plan), we will providethe Services in accordance with these Terms, whether ourselves or through ourPersonnel.

2.2

We will use reasonableendeavours  to make the Servicesavailable at all times, except for any scheduled downtime or any unavailabilitycaused by any Force Majeure Event or denial of service attacks.

2.3

During the Term, we will usereasonable endeavours to employ technical and physical security measures andpractices for any of our systems on which Customer Data is stored or processeddesigned to preserve the security and integrity of, and prevent unauthorisedaccess to, the Services and Customer Data.

2.4

You agree that we mayamend the Services (including any features) or the Fees at any time, and wewill provide written notice to you. If you do not agree to any amendment madeto the Services or the Fees, you may terminate these Terms in accordance withclause 18.1.

3.

Accounts

3.1

You must create an Account ,in order for you and your Authorised Users to access and use the Services.

3.2

You must ensure that any information you provide to us, or we request from you, for your Account, is complete and accurate and you are authorised to provide this information to us.

3.3

You are the Account owner and regardless of any change in any contact details, you will remain responsible for your Account, as set out in these Terms.  If you wish to change the Account owner, you must provide us with a written request to transfer the ownership of the Account to the incoming party, which must also include the incoming party’s written consent to take over full responsibility for the Account, in a form acceptable to us.

3.4

It is your responsibility to keep your Account details confidential. You are responsible for all activity on your Account , including activity by Authorised Users and for ensuring that any activities on your Account comply with these Terms.

3.5

We are not responsible for the management or administration of your Account or your Authorised Users.

4.

Licence and restrictions on use

4.1

Subject to the payment of any applicable Fees and your  and your Authorised Users’ compliance with these Terms, we grant you a non-exclusive, non-transferable, non-sublicensable(except as otherwise permitted under these Terms), personal and revocable licence to access and use the Services for the Term, for your use and enjoyment of the Services, subject to these Terms (Licence).

4.2

Your access or use of the Services under the Licence will be subject to any usage limits specified in the Plan.

4.3

You agree that the Licence permits you to access and use the Services in accordance with the number of Authorised Users, as set out in your Plan (if applicable).

4.4

You must (and procure your Authorised Users must) use the Software in accordance with any user manuals, guides or acceptable use policies in respect of the Software provided by us to you on the Site from time to time, and as updated from time to time.

4.5

You must not (and must ensure your Authorised Users do not) access or use the Services:

(a)

in anyway which is in breach of any applicable Laws or which infringes any person's rights, including Intellectual Property Rights;

(b)

use the Services to develop, transmit, publish or communicate material that is illegal, defamatory ,offensive, abusive, indecent, menacing or unwanted;

(c)

use the Services in any way that damages, interferes with or interrupts the supply of the Services;

(d)

introduce malicious programs into our hardware and software or Systems, including viruses, ransomware, malware, trojan horses and e-mail bombs;

(e)

reveal or allow others access to your Account’s password or authentication details or allow others to use your Account or authentication details (other than Authorised Users);

(f)

carryout security breaches or disruptions of a network, including accessing data where you are not the intended recipient or logging into a server or account that you are not expressly authorised to access or corrupting any data (including network sniffing/monitoring, pinged floods, packet spoofing, denial of service and forged routing information for malicious purposes);

(g)

use any program/script/command, or send messages of any kind, with the intent to interfere with, or disable, any person’s use of the Services;

(h)

if applicable, send any form of harassment via email, or any other form of messaging, whether through language, frequency, or size of messages, or use the Services in breach of any person’s privacy (such as by way of identity theft or “phishing”); or

(i)

circumvent user authentication or security of any of our Services, networks, accounts or hosts or those of our other users.

5.

Third Party Inputs

5.1

You agree that the provision of the Services may be contingent on, or impacted by, Third Party Inputs.

5.2

You agree that the Services may include Third Party Inputs that may interface, or interoperate with, the Services, including third party software, applications, services, code, APIs, connections and integrations.

5.3

To the extent that you choose to use such Third Party Inputs, you are responsible for:

(a)

the purchase of;

(b)

the signing up to or setting up an account with;

(c)

the use of;

(d)

the terms and conditions of;

(e)

the requirements of; and

(f)

the licensing obligations relating to,

the applicable Third Party Input, including third party software and services.

5.4

We are not liable to you in any way for any Third Party Input. We do not make any warranty or representation in respect of the Third Party Inputs.

5.5

You agree that the benefit of the Third Party Input’s interface, or interoperation with, the Services, is subject to your compliance with clause 5.3.

5.6

You acknowledge and agree that accessing or using Third Party Inputs may require you to pay additional fees for the access or use of that Third Party Inputs (Third Party Input Payments). If Third Party Input Payments are required, whether or not through the Marketplace, you are solely responsible for all such payments and will indemnify us for any Liability relating to Third Party Input Payments. If we charge you those Third Party Input Payments, you shall pay us (and not the third party) the Third Party Input Payments on demand. Otherwise, you must promptly pay the Third Party Input Payments directly to the third party providing the relevant Third Party Input.

6.

Marketplace

6.1

In your use of the Marketplace, you must not do anything that may reasonably cause a User to believe that Logic is in any way associated with or endorsed by us.

6.2

Any sales or purchases on the Marketplaces will be a contract directly between the relevant seller and buyer. We will not be a party to any such contracts.

6.3

Any payments made on the Marketplace will be made through a third party provider. If applicable, you must ensure that you comply with all the terms and conditions of that third party provider before accessing or using the Marketplace.

6.4

We may refuse any of Logic or Third Party Input to be marketed or sold on the Marketplace or remove Logic or Third Party Input from the Marketplace if we have a reasonable reason to do so, including incompatibility with the Marketplace or inappropriate content.

6.5

We may no warranty whatsover with respect to the content, functionality, apropriateness, merchantability or otherwise of anything on the Marketplace. We disclaim all Liability arising out of or related to your access or use of the Marketplace,  any Logic or Third Party Input.

7.

Support Services, Hosting Services and Updates

7.1

During the Term, we will provide the following support services:

7.2

You must ensure that any information you provide to us, or we request from you, for your Account, is complete and accurate and you are authorised to provide this information to us.

(a)

use reasonable endeavours to diagnose and resolve any defects or faults in Software that you notify us (by the contact details referred to in subclause (b)), provided that where required, you assist us in investigating and ascertaining the cause of the defect or fault and provide us with access to all necessary information relevant to the defect or fault (including what you have done in relation to the defect or fault); and

(b)

make available the following email address and phone number to notify us of any defects or faults, or general queries in respect of the Software: support@fl0.comor via the ticketing support.

7.3

You acknowledge and agree that:

(a)

the SaaS Services will be hosted by our nominated Hosting Provider;

(b)

we may change the Hosting Provider from time to time;

(c)

we are not liable for the acts or omission of any Hosting Provider;  

(d)

we make no warranty in respect of the hosting services given by any Hosting Provider, including that they will be uninterrupted or error-free;

(e)

the hosting services given by the Hosting Provider may be the subject to delays, delivery failures, or other problems which arise from the use of communications networks and facilities, including the Internet, or other acts, omissions or events beyond our control.

7.4

To the extent that there are any defects or other issues with the hosting services provided the Hosting Provider, we will use reasonable endeavours to procure that the Hosting Provider resolves the relevant defects or issues.

7.5

You acknowledge and agrees that:

(a)

We may from time to time, develop and effect Updates, where such Updates may be for any purpose including improving functionality or operation of the Platform or compliance with Applicable Laws;  

(b)

any Updates will, at the time elected by us, be uploaded automatically to the Software; and

(c)

we may, each at their discretion and from time to time, perform maintenance work to the Software and SaaS Software.  

8.

Payment

8.1

You agree to pay us the Fees as set out in your Plan, and any other amounts payable to us under these Terms, without set-off or delay, via credit card or any other payment method set out on the Site.

8.2

The Fee is payable in advance of the next billing cycle for your Plan and any additional charges (if any) will be billed in arrears at the end of the relevant Plan billing cycle(unless otherwise agreed between the Parties).

8.3

You are responsible for reviewing the pricing schedule, features and limits associated with your Plan, which are available on the Site.

8.4

You must ensure your chosen payment method has sufficient funds to pay the Fees.

8.5

If any payment has not been made or is not successful in accordance with these Terms, we may (at our absolute discretion):

(a)

immediately cease or suspend the provision of the Services, and recover as a debt due and immediately payable from you, our additional costs of doing so;

(b)

charge interest at a rate equal to the Reserve Bank of Australia’s cash rate from time to time plus 8% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the due date for payment in accordance with these Terms; and

(c)

engage debt collection services and/or commence legal proceedings in relation to any such amounts.

8.6

If you rectify such non-payment within a reasonable time after the Services have been suspended, then we may, at our discretion, recommence the provision of the Services as soon as reasonably practicable.

9.

Privacy and Communication

9.1

You are responsible for the collection, use, storage and otherwise dealing with Personal Information related to your business and all matters relating to the Customer Data.

9.2

You must, and must ensure that your Personnel, comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any privacy or anti-spam Laws applicable to you in respect of all Personal Information collected, used, stored or otherwise dealt with under or in connection with these Terms. Prior to disclosing Personal Information to us, you must obtain any necessary consents from the relevant individuals.

9.3

We agree to handle any Personal Information you provide to us, solely for the purpose of performing our obligations under these Terms and in accordance with any applicable Laws and our Privacy Policy.

9.4

We may contact you via the platform for the Services, using in-Account notifications or via-off platform communication channels, such as text messages or email with functional notifications.

9.5

We may also send marketing and promotional material which may be of interest to you, using your contact details. You may opt out of receiving direct marketing messages at any time. Where you opt-out we will continue to send you functional communications relevant to your use of the Services.

10.

Confidential Information

10.1

Each Receiving Party agrees:

(a)

not to disclose the Confidential Information of the Disclosing Party to any third party;  

(b)

to use all reasonable endeavours to protect the Confidential Information of the Disclosing Party from any unauthorised disclosure; and

(c)

to only use the Confidential Information of the Disclosing Party for the purposes for which it was disclosed or provided by the Disclosing Party, or for the performance of obligations under these Terms, and not for any other purpose.

10.2

The obligations in clause 10.1 do not apply to Confidential Information that:  

(a)

is required to be disclosed in order for the Parties to comply with their obligations under these Terms;  

(b)

is authorised to be disclosed by the Disclosing Party;  

(c)

is in the public domain and/or is no longer confidential, except as a result of a breach of these Terms; or  

(d)

must be disclosed by Law or by a regulatory authority, including under subpoena.

10.3

Each Party agrees that monetary damages may not bean adequate remedy for a breach of this clause 9.  A Party is entitled to seek an injunction, or any other remedy available at law or inequity, at its discretion, to protect itself from a breach (or continuing breach) of this clause 10.  

10.4

This clause 10 will survive the termination of these Terms.

11.

Intellectual Property Rights

11.1

You agree that all Intellectual Property Rights in:

(a)

the Services (which, for the avoidance of doubt, includes the Development Software and includes all pre-configured components within the Development Software and the Site which can be arranged or “dragged-and-dropped” to create Logic);

(b)

the Site;

(c)

the Intellectual Property developed, adapted, modified or created by us, or our Personnel (including in connection with these Terms, the Services, and any machine learning algorithms output from the Services); and

(d)

any Feedback,

will at all times vest, or remain vested, in us (or, if applicable, our third party service providers or our third party licensors).  To the extent that ownership of the Intellectual Property Rights does not automatically vest in us, you agree to do all acts necessary or desirable to assure our title to such rights.

11.2

You agree that we may use Feedback in any manner which we see fit (including to develop new features) and no benefit will be due to you as a result of any use by us of any Feedback.

11.3

You must not whether directly or indirectly, without our prior written consent:

(a)

copy or use, in whole or in part, any of our Intellectual Property;

(b)

reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any of our Intellectual Property to any third party;

(c)

reverse assemble, reverse engineer, reverse compile or enhance the Services;

(d)

attempt to discover the source code or object code or underlying structures, ideas, know how or algorithms in relation to the Services, the data or documentation;

(e)

breach any Intellectual Property Rights connected with the Services, including altering or modifying any of our Intellectual Property;

(f)

cause any of our Intellectual Property to be framed or embedded in another website; or create derivative works from any of our Intellectual Property;

(g)

resell, assign, lease, hire, sub-license, transfer, distribute or make available the Services to third parties;

(h)

“frame”, “mirror” or serve any of the Services on any web server or other computer server over the Internet or any other network; and

(i)

alter, remove or tamper with any trademarks, any patent or copyright notices, any confidentiality legend or notice, any numbers or any other means of identification used on or in relation to the Services.

11.4

This clause 11 will survive the termination or expiry of these Terms.

12.

Analytics

12.1

Despite anything to the contrary, we may monitor, analyse and compile statistical and performance information based on and/or related to your use of the Services, in an aggregated and anonymised format (Analytics). You agree that we may make such Analytics publicly available, provided that it:

(a)

does not contain identifying information; and

(b)

is not compiled using a sample size small enough to make the underlying Customer Data identifiable.

12.2

We, and our licensors own all right, title and interest in and to the Analytics and all related software, technology, documentation and content used or provided in connection with the Analytics, including all Intellectual Property Rights in the foregoing.

13.

Customer Data

13.1

You grant us a limited licence to copy, transmit, store and back-up or otherwise access the Customer Data during the Term and for a reasonable period after the Term to:

(a)

supply the Services (including for back-ups) to you (including to enable you, your Authorised Users and your Personnel to benefit from the Services);

(b)

diagnose problems with the Services;

(c)

enhance and otherwise modify the Services, and

(d)

as reasonably required to perform our obligations under these Terms.

13.2

You must, at all times, ensure the integrity of the Customer Data and that your provision of, and use of the Customer Data is compliant with all Laws.

13.3

You represent and warrant that:

(a)

you have obtained all necessary rights, releases and permissions to provide all your Customer Data to us and to grant the rights granted to us in these Terms;

(b)

the Customer Data is accurate and complete;

(c)

the Customer Data (and its transfer to and use by us as authorised by you) under these Terms does not violate any Laws (including those relating to export control and electronic communications) or rights of any third party, including any Intellectual Property Rights, rights of privacy, or rights of publicity; and

(d)

any use, collection and disclosure authorised in these Terms is not inconsistent with the terms of any applicable privacy policies or any Laws related to privacy.

13.4

Subject to clause 2.3, we assume no responsibility or Liability for the Customer Data. You are solely responsible for the Customer Data and the consequences of using, disclosing, storing or transmitting it.  It is your responsibility to back up the Customer Data.

13.5

You acknowledge and agree that the operation of the Services is reliant on the accuracy of the Customer Data, and the provision of inaccurate or incomplete Customer Data by you may affect the use, output and operation of the Services.

14.

Warranties

14.1

You warrant and agree that:

(a)

there are no legal restrictions preventing you from entering into these Terms;

(b)

you are not and have not been the subject of an Insolvency Event;

(c)

you will cooperate with us and provide us with all assistance, resources, data, people, information, facilities, access and documentation that is reasonably necessary to enable us to perform the Services and as otherwise requested by us, from time to time, and in a timely manner;  

(d)

all information and documentation that you provide to us in connection with these Terms is true, correct and complete and that we will rely on such information and documentation in order to provide the Services;

(e)

you have not relied on any representations or warranties made by us in relation to the Services (including as to whether the Services are or will be fit or suitable for your particular purposes), unless expressly stipulated in these Terms

(f)

you will inform us if you have reasonable concerns relating to our provision of the Services under these Terms, with the aim that the Parties will use all reasonable efforts to resolve your concerns;

(g)

you are responsible for obtaining, and providing to us in a timely manner, any consents, licences, authorities and permissions from third parties necessary for the Services to be provided in accordance with these Terms, at your cost;

(h)

the Services are provided to you solely for your benefit and you will not (or you will not attempt to) disclose, or provide access to, our Services to third parties (excluding Authorised Users) without prior written consent;

(i)

you will be responsible for the use of any part of the Services, and you must ensure that no person uses any part of the Services to break any Law or infringe any person’s rights (including Intellectual Property Rights) or in any way that damages, interferes with or interrupts the supply of the Services;

(j)

you have reviewed these Terms and our Privacy Policy, and you understand them and will use the Services in accordance with them;

(k)

you have the authority to act on behalf of any person or entity for whom you are using the Services and you are deemed to have agreed to these Terms on behalf of any entity for whom you use the Services; and

(l)

you have all the hardware, software and services which are necessary to access and use the Services, including any required operating systems as set out on the Site.

15.

Australian Consumer Law

15.1

Certain legislation, including the ACL, and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of our services which cannot be excluded, restricted or modified (Statutory Rights).

15.2

If the ACL applies to you as a consumer, nothing in these Terms excludes your Statutory Rights as a consumer under the ACL.  You agree that our Liability for the Services provided to an entity defined as a “consumer” under the ACL is governed solely by the ACL and these Terms.

15.3

Subject to your Statutory Rights, we exclude all express and implied warranties, and all material, work and services (including the Services) are provided to you without warranties of any kind, either express or implied, whether in statute ,at Law or any other basis.

15.4

This clause 14 will survive termination or expiry of these Terms.

16.

Indemnities

16.1

You indemnify us and our Personnel against all Liability that we or any of our Personnel may sustain or incur as a result, whether directly or indirectly, of:

(a)

your or your Personnel’s breach of clauses 4, 5, 8, 9, 10, 12 and 13;

(b)

your access or use of the Marketplace;

(c)

your or your Personnel’s negligent, unlawful or willful acts or omissions in connection with these Terms ,

except to the extent that the Liability arose from our negligent acts or omissions or any of our Personnel.

17.

Limitations on Liability

17.1

Despite anything to the contrary and to the maximum extent permitted by law:

(a)

neither Party will be liable for any Consequential Loss;

(b)

a Party’s liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel); and

(c)

(in respect of any failure by us to comply with a relevant Statutory Right) our liability is limited (at our discretion)to supplying the Services again or paying the cost of having the Services supplied again;

(d)

our aggregate liability for any Liability arising from or in connection with these Terms will be limited the amount of the Fees paid by you to us in the immediately preceding 12 months for the supply of the relevant Services to which the Liability relates.

17.2

This clause 17 will survive termination or expiry of these Terms.

18.

Exclusions to Liability

18.1

Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability, caused or contributed to by, arising from or connected with:

(a)

loss of, or damage to, any property or any injury to or loss to any person;

(b)

the Computing Environment;

(c)

your or your Personnel’s acts or omissions;

(d)

any use or application of the Services by a person or entity other than you or your Authorised Persons;

(e)

the use of the Services by the you (or your Authorised Users) other than in accordance with these Terms;

(f)

any modifications to the Services made by you or any third party (other than with our prior written consent);  

(g)

any work, services, goods, materials or items which do not form part of the Services (as expressed in these Terms), or which have not been provided by us;

(h)

any Third Party Inputs;

(i)

any Force Majeure Event; and/or

(j)

any act or omission the Hosting Provider.

For the avoidance of doubt, we will not be liable for any delay, downtime, unavailability, latency ,slowness, suspension, service degradation, response delay or similar event or occurrence relating to the Services, were the failure or relevant event/occurrence is caused or contributed by any of the acts, omissions or events referrred to in the above subclauses.

18.2

You acknowledge and agree that:

(a)

you are responsible for all users using the Services, including your Personnel and any Authorised Users;

(b)

you use the Services and any associated programs and files at your own risk;

(c)

the technical processing and transmission of the Services, including Customer Data, may be transferred unencrypted and involves:

(1)

transmissions over various networks; and

(2)

changes to conform and adapt to technical requirements of connecting networks or devices;

(b)

we may use third party service providers to integrate with the Services or to host the Services. If the providers of third party applications or services cease to make their services or programs available, we may cease providing any affected features without Liability or entitling you to any refund, credit, or other compensation;

(c)

the Services may use third party products, facilities or services. We do not make any warranty or representation in respect of the third party products, facilities or services;

(d)

we do not guarantee that any file or program available for download and/or execution from or via the Services is free from viruses or other conditions which could damage or interfere with data, hardware or software with which it might be used;

(e)

we are not responsible for the integrity or existence of any data on the Computing Environment, network or any device controlled by you, your Authorised Users or your Personnel; and

(f)

we may pursue any available equitable or other remedy against you if you breach any provision of these Terms.

18.3

This clause 18 will survive termination or expiry of these Terms.

19.

Suspension

19.1

We may immediately and without notice to you, suspend your Account if:

(a)

you (or any of your Personnel) breach any provision of these Terms;

(b)

we reasonably suspect that you (or any of your Personnel) have breached any provision of these Terms;

(c)

if there is any dispute as to who is the owner of your Account; or

(d)

any Laws or court order requires us to do so.

19.2

Even where we have suspended your Account, we retain our rights at law and elsewhere in this Agreement(including terminating these Terms under clause 19).

20.

Termination

20.1

We may terminate these Terms at any time by giving 30 days’ notice in writing to you.

20.2

You may terminate these Terms immediately at any time by closing your Account and, if applicable, the Account of all your Authorised Users.

20.3

These Terms will terminate immediately upon written notice by:

(a)

us:

(1)

if you (or any of your Personnel) breach any provision of these Terms and that breach has not been remedied within 10Business Days of being notified by us;

(2)

if a Force Majeure Event prevents, hinders or delays our performance of obligations for a continuous period of more than thirty(30) days; or

(3)

if you suffer an Insolvency Event; and

(b)

you, if we:

(1)

are in breach of a material term of these Terms, and that breach has not been remedied within 10 Business Days of being notified by you; or

(2)

suffer an Insolvency Event.  

20.4

Upon expiry or termination of these Terms:

(a)

we will immediately cease providing the Services;

(b)

we will be entitled to permanently delete all Customer Data within 1 month from expiry or termination of these Terms;

(c)

you are to pay for all Services provided prior to termination (including Services which have been provided and have not yet been invoiced to you) and all other amounts due and payable under these Terms, within 5 Business Days of expiry or termination;

(d)

pursuant to clauses 18.2(a)(1), (2)or (4),you also agree to pay us additional costs arising from, or in connection with, such termination; and

(e)

immediately return (where possible) or delete or destroy (where not possible to return), any of our property (including any of our Confidential Information and Intellectual Property).

20.5

Termination of these Terms will not affect any rights or liabilities that a Party has accrued under it.

20.6

This clause 20 will survive the termination or expiry of these Terms.

21.

GST

21.1

If GST is payable on any supply made under these Terms, the recipient of the supply must pay an amount equal to the GST payable on the supply. That amount must be paid at the same time that the consideration is to be provided under these Terms and must be paid in addition to the consideration expressed elsewhere in these Terms, unless it is expressed to be inclusive of GST. The recipient is not required to pay any GST until the supplier issues a tax invoice for the supply.

21.2

If an adjustment event arises in respect of any supply made under these Terms, a corresponding adjustment must be made between the supplier and the recipient in respect of any amount paid by the recipient under this clause, an adjustment note issued(if required), and any payments to give effect to the adjustment must be made.

21.3

If the recipient is required under these Terms to pay for or reimburse an expense or outgoing of the supplier, or is required to make a payment under an indemnity in respect of an expense or outgoing of the supplier, the amount to be paid by the recipient is to be reduced by the amount of any input tax credit in respect of that expense or outgoing that the supplier is entitled to.

21.4

The terms “adjustment event”, “consideration”, “GST”, “input tax credit”, “recipient”, “supplier”, “supply”, “taxable supply” and “tax invoice” each has the meaning which it is given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

22.

General

22.1

Access: The Services may be accessed in Australia and overseas. We make no representation that the Services comply with the Laws(including Intellectual Property Laws) of any country outside of Australia. If you access the Services from outside Australia, you do so at your own risk and you are responsible for complying with the Laws in the place you access the Services.

21.2

Amendment :We may update these Terms at any time. Where we update these Terms, we will notify you via an in-Account notification or via email. If you do not agree with any amendment you may terminate these Terms in accordance with clause 20.1.

21.3

Assignment: A Party must not assign, novate or deal with the whole or any of its rights or obligations under these Terms without the prior written consent of the other Party (such consent is not to be unreasonably withheld).

21.4

Dispute: A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, these Terms (including any question regarding its existence, validity or termination) (Dispute) without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute. If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either Party may ask the Australian Disputes Centre (ADC) to appoint a mediator. The mediation will be conducted in New South Wales, in accordance with the ADC Mediation Guidelines and at a time determined by the mediator. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.

22.5

Entire agreement: These Terms contain the entire understanding between the Parties, and supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.

22.6

Exclusivity: The Services will be provided to you on a non-exclusive basis.

22.7

Force Majeure: We will not be liable for any delay or failure to perform our obligations under these Terms if such delay or failure is due to any Force Majeure Event.

22.8

Further assurance: Each Party must promptly do all things and execute all further instruments necessary to give full force and effect to these Terms and their obligations under it.

22.9

Governing law: These Terms are governed by the laws of New South Wales. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.

22.10

Notices: Any notice given under these Terms must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 3 Business Days in the case of post, or at the time of transmission in the case of transmission by email.

22.12

Publicity: You agree that we may advertise or publicise the broad nature of our provision of the Services to you, including on our website or in our promotional material, [with/without]your prior written consent.

22.13

Relationship of Parties: These Terms are not intended to create a partnership, joint venture, employment or agency relationship between the Parties.

22.14

Severance: If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions.

23.

Definitions

In these Terms, unless the context otherwise requires, capitalised terms have the meanings given to them in these Terms, and:

Account means an account accessible to you and/or your Authorised Users to use the Services;

ACL or Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time;

API means application programming interface;

Authorised User, if applicable, means a user permitted to access and use the Services under your Account, as further particularised in your Plan;

Business Day means a day on which banks are open for general bank business in New South Wales, excluding Saturdays, Sundays and public holidays;

Computing Environment means your computing environment including all hardware, software, information technology and telecommunications services and Systems;

Confidential Information includes information which:

(a)

is disclosed to the Receiving Party in connection with these Terms at any time; and

(b)

relates to the Disclosing Party’s business, assets or affairs; or

(c)

relates to the subject matter of, the terms of and/or any transactions contemplated by these Terms,

whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever the Receiving Party receives that information;

Consequential Loss includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract ,equity, tort (including negligence), indemnity or otherwise;

Customer Data means the information, materials, logos, documents, qualifications and other Intellectual Property or data inputted by you, your Personnel or Authorised Users into the Software, or stored by the Software or generated by the Software as a result of your use of the Services;

Development Software means our cloud-based development acceleration software/platform for building applications, data pipelines, startups, microservices, backend APIs and integrations, including:

(a)

all pre-configured components within the software and the Site;

(b)

all instructions in hard copy or electronic form; and

(c)

any update, modification or release;

Disclosing Party means the party disclosing Confidential Information to the Receiving Party;

Fee or Fees means those fees due and payable by you for the Services, as set out in your relevant Plan;

Feedback means any idea, suggestion, recommendation or request by you or any of your Personnel or Authorised Users, your customers, whether made verbally, in writing, directly or indirectly, in connection with the Services;

Force Majure Event means any circumstance beyond our reasonable control including but not limited to epidemics, pandemics, and Government sanctioned restrictions and orders, acts of God or natural disasters, any interruption or failure of third party utility service including failure of Internet and telecommunications, and whether known or unknown at the time of entering into these Terms;

Hosting Provider means the third party hosting provider of the Software elected by us from time to time;

Insolvency Event means any of the following events or any analogous event:

(a)

a Party disposes of the whole or any part of the Party’s assets, operations or business other than in the ordinary course of business;

(b)

a Party ceases, or threatens to cease, carrying on business;

(c)

a Party is unable to pay the Party’s debts as the debts fall due;

(e)

any step is taken by a mortgagee to take possession or dispose of the whole or any part of the Party’s assets, operations or business;

(f)

any step is taken for a party to enter into any arrangement or compromise with, or assignment for the benefit of, a Party’s creditors or any class of a Party’s creditors; or

(g)

any step is taken to appoint an administrator, receiver, receiver and manager, trustee, provisional liquidator or liquidator of the whole or any part of a Party’s assets, operations or business;

Intellectual Property means any copyright, registered and unregistered trademarks, designs (whether or not registered or registrable),domain names, know-how, inventions, processes, trade secrets or Confidential Information; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing;

Intellectual Property Rights means all rights in the Intellectual Property, including current and future registered and unregistered rights, whether conferred by statute, common law or equity, and whether in Australia or elsewhere in the world;

Laws means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any government or similar authority with the power to bind or impose obligations on the relevant Party in connection with these Terms or the provision of the Services, and includes the Privacy Act 1988 (Cth) and the Spam Act2003 (Cth);

Liability means any expense, cost(including legal costs on a full indemnity basis), liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment(whether under statute, contract, equity, tort (including negligence),indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to these Terms or otherwise;

Licence is defined in clause 4.1;

Logic means a logic flow or integration of APIs comprising two or more pre-configured components created by a User on the Development Software;

Marketplace means our cloud-based marketplace platform where Users can buy and sell Logic or Third Party Input;

Personal Information is defined in the Privacy Act 1988 (Cth) and also includes any similar term as defined in any other privacy law applicable to you;

Personnel means, in respect of a Party, any of its officers, employees, consultants, suppliers, subcontractors or agents;

Plan means the plan you choose, including the Fees, consumption or usage limits, billing cycle, features, and number of Authorised Users, as set out on the Site and post purchase, as setout within your Account;

Privacy Policy means our privacy policy setout on our Site;

Receiving Party means the party receiving Confidential Information from the Disclosing Party;

SaaS Services means the provision of our Software as a “software as a service”;

Services means the Software, the SaaS Services, and any support services ;

Software means the Development Software and the Marketplace;

System means all hardware, software, networks and other IT systems used by a Party from time to time, including a network;

Third Party Inputs means third parties or any goods and services (including software, websites, applications,  code, APIs, connections and integrations) provided by third parties, including customers, end users, suppliers, transportation or logistics providers or other subcontractors, which the provision of the Services may be contingent on, or impacted by, or otherwise the Services interoperate or interface with;

Users means any one who enters into an agreement substantially similar to these Terms with us, including you;

Update means any update or new release of the Software; and

Your Materials means all work, models, processes, technologies, strategies, materials, information, documentation and services (including Intellectual Property), owned, licensed or developed by or on behalf of you or your Personnel before the Effective Date and/or developed by or on behalf of you or your Personnel independently of these Terms.

24.

Interpretation

In these Terms, unless the context otherwise requires:  

(a)

a reference to these Terms or any other document includes the document, all schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time;

(b)

a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time;

(c)

a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity and vice versa;

(d)

where the words "include" or "including" are used in these Terms, they are deemed to have the words "without limitation" following them;

(e)

no clause will be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it;

(f)

a reference to a party (including a Party) to a document includes that party’s executors, administrators, successors, permitted assigns and persons substituted by novation from time to time;

(g)

a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally;

(h)

a reference to time is to local time in New South Wales; and

(i)

a reference to $ or dollars refers to the currency of Australia from time to time.

For any questions and notices, please contact us at:

Fl0 Pty Ltd (ABN 41 648 699 978)

Email: support@fl0.com or via the ticketing support

Last update: 7 Oct 2021

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