SECTARA™ WEBSITE AND SERVICE TERMS AND CONDITIONS
Version: 4.4
1. APPLICATION OF TERMS
1.1 Welcome to www.sectara.com (Website). The Website provides you with the opportunity to browse and purchase various Services. The Website is operated by SECTARA Pty Ltd (ABN 619 000 289). These Terms apply to your access to and use of the Website and any associated use of the Services. Please read these and conditions (Terms) carefully. By accessing, browsing and/or reading the Website or otherwise using the Services:
a. you acknowledge that you have read, understood and agree to be bound by these Terms; and
b. where your access and use is on behalf of another person (e.g. a company), you confirm that you are authorised to, and do in fact, agree to these Terms on that person’s behalf and that, by agreeing to these Terms on that person’s behalf, that person is bound by these Terms.
1.2 If you do not agree to these Terms, you must cease usage of the Website, and the Services, immediately.
1.3 You accept the Terms by remaining on the Website. You may also accept the Terms by clicking to accept or agree to the Terms where this option is made available to you by us in the user interface.
2. CHANGES
2.1 We reserve the right to review and change these Terms at any time by updating this page. When we update the Terms, we will use reasonable endeavours to provide you with notice of updates to the Terms. Any changes to the Terms take immediate effect from the date of their publication. You are responsible for ensuring that you are familiar with the latest Terms. By continuing to access the Website and use the Services from the date on which the Terms are changed, you agree to be bound by the changed Terms. Before you continue, we recommend you keep a copy of the Terms for your records.
2.2 These Terms were last updated in June 2019.
3. INTERPRETATION
In these Terms:
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Confidential Information means any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, the provision and use of the Service. Our Confidential Information includes Intellectual Property owned by us, including the SECTARA™ Software. Your Confidential Information includes the Data.
Custom Plan means a bespoke plan agreed between you and us, which outlines the Fees payable and Service included, the details of which may only be accessed by a person appointed by you to be your “account administrator” (and not other personnel or Permitted Users).
Data means all data, content, and information (including personal information) owned, held, used or created by you or on your behalf that is stored using, or inputted into, the Service.
Fees means the applicable fees set out on our pricing page on the Website at www.sectara.com/pricing or as otherwise provided by us to you (in the case of Custom Plans), as may be updated from time to time in accordance with clause 7.5, or as otherwise agreed in writing between you and us.
Force Majeure means an event that is beyond the reasonable control of a party, excluding:
- an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care; or
- a lack of funds for any reason.
Intellectual Property Rights includes copyright and all rights existing anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trademarks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity. Intellectual Property has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property.
Objectionable includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way.
A party includes that party’s permitted assigns.
Permitted Users means users who you have authorised to access and use the Service on your behalf in accordance with clause 5.4.
Personal information has the meaning given to that term in the Privacy Act (Cth).
Personnel includes officers, employees, contractors and agents, but a reference to your personnel does not include us.
Plan means the category of subscription based on Fees payable and services included, as detailed on the pricing page of the website.
SECTARA™ Software means the software owned by us that is used to provide the Service.
Service means the service having the core functionality described on the Website.
Start Date means the date that you set up an account.
Terms means these terms of use.
Underlying Systems means the SECTARA™ Software, IT solutions, systems and networks (including software and hardware) used to provide the Service, including any third-party solutions, systems and networks.
We, us or our means SECTARA™ Pty Ltd (ABN 619 000 289).
Website means the internet site at www.sectara.com, or such other site notified to you by us.
Year means a 12-month period starting on the Start Date or the anniversary of that date.
You or your means you or, if clause 1.1b applies, both you and the other person on whose behalf you are acting.
Words in the singular include the plural and vice versa.
A reference to a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them.
A reference to the Website and these Terms is as updated or amended from time to time in accordance with these Terms.
Reference to a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity.
Reference to “including” and similar words are to be read together with the words “(but not limited to)”.
4. PROVISION OF THE SERVICE
4.1 We will use reasonable efforts to provide the Service:
a. in accordance with these Terms and Australian law;
b. exercising reasonable care, skill and diligence; and
c. using suitably skilled, experienced and qualified Personnel.
4.2 Our provision of the Service to you is non-exclusive. Nothing in these Terms prevents us from providing the Service to any other person.
4.3 Subject to clause 4.4, we will use reasonable efforts to ensure the Service is available on a 24/7 basis. However, it is possible that on occasion the Service may be unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure. We will use reasonable efforts to publish on the Website, and notify you by email, advance details of any known unavailability.
4.4 Through the use of web services and application programming interfaces, the Service interoperates with a range of third-party service features. We do not make any warranty or representation about the availability of those features. Without limiting the foregoing, if a third-party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, we may cease to make that feature available to you. For the avoidance of doubt, if we exercise our right to cease the availability of a third-party feature, you are not entitled to any refund, discount or other compensation.
4.5 You acknowledge and agree that, notwithstanding anything else that may be stated on the Website or otherwise, we have the sole discretion to determine who may obtain access to the Services on a “Free Trial” basis. Without limiting the foregoing, we may refuse any user that we determine does not intend to use the Services for a genuine purpose.
5. YOUR OBLIGATIONS
5.1
a. In order to access the Services, you must first register as a user of the Website. As part of the registration process, or as part of your continued use of the Services, you may be required to provide Personal Information about yourself (such as identification or contact details) including:
i. full name (or corporate details);
ii. address;
iii. email address and phone number; and
iv. payment details.
b. You warrant that the information you give to us in the course of completing the registration process or otherwise pursuant to the Services will always be accurate, correct and up to date.
c. You may not use the Services and may not accept the Terms if:
i. you are not of legal age to form a binding contract with us; or
ii. you are a person barred from receiving the Services under the laws of Australia or other countries including the country in which you are resident or from which you use the Services.
5.2 You, your Personnel and Permitted Users must only use the Services for the purposes that are permitted by:
a. these Terms (being the conduct of security risk assessments for your organisation and/or its clients); and
b. any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions.
5.3 When accessing the Service, you, your Personnel and Permitted Users must:
a. not impersonate another person or misrepresent authorisation to act on behalf of others or us;
b. correctly identify the sender of all electronic transmissions;
c. not attempt to undermine the security or integrity of the Underlying Systems;
d. not use, or misuse, the Service in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the Service;
e. not attempt to view, access or copy any material or data other than:
i. that which you are expressly authorised to access; and
ii. to the extent necessary for you to use the Service in accordance with these Terms; and
f. neither use the Service in a manner, nor transmit, input or store any Data, that breaches any third-party right (including Intellectual Property Rights and privacy rights) or that is Objectionable, incorrect or misleading.
5.4 Without limiting clause 5.3, no individual other than a Permitted User may access or use the Service. You may authorise any member of your Personnel, or your clients, to be a Permitted User, in which case that Permitted User must acknowledge their compliance with these Terms and our Privacy Policy.
5.5 You acknowledge and agree that you are responsible for all acts and omissions of your Personnel and Permitted Users and you agree that you will use your best endeavours to ensure that your Personnel and Permitted Users comply with these Terms. A breach of any of these Terms by your Personnel or your Permitted Users is deemed to be a breach of these Terms by you.
5.6 You are responsible for procuring all licences, authorisations and consents required for you, your Personnel and Permitted Users to use the Service, including to use, store and input Data into, and process and distribute Data through, the Service.
5.7 You have the sole responsibility for protecting the confidentiality of your security credentials, inclusive of your password, email address and passcodes, as applicable. Use of your security credentials by any unauthorised person may result in the immediate cancellation of the Services.
5.8 Any use of your registration information by any other person, or third-parties, is strictly prohibited. You agree to immediately notify us of any unauthorised use of your password or email address or any breach of security of which you have become aware.
5.9 You will not use the Services or Website for any illegal and/or unauthorised use.
6. DATA
6.1 You acknowledge that:
a. we may require access to the Data to exercise our rights and perform our obligations under these Terms; and
b. to the extent that this is necessary but subject to clause 9, we may authorise a member or members of our Personnel to access the Data for this purpose.
6.2 You must arrange all consents and approvals that are necessary for us to access the Data as described in clause 6.1.
6.3 You acknowledge and agree that:
a. we may:
i. use Data and information about you, your Personnel, Permitted Users and your end users’ use of the Services to generate anonymised and aggregated statistical and analytical data (Analytical Data); and
ii. use Analytical Data for our internal research and product development purposes and to conduct statistical analysis and identify trends and insights; and
iii. supply Analytical Data to third-parties;
b. our rights under clause 6.3a above will survive termination or expiry of the Agreement; and
c. title to, and all Intellectual Property Rights in, Analytical Data is and remains our property.
6.4 You acknowledge and agree that to the extent Data contains Personal Information, in collecting, holding and processing that information through the Service, we are acting as your agent for the purposes of the Privacy Act 1988 and any other applicable privacy law. You must obtain all necessary consents from the relevant individual to enable us to collect, use, hold and process that information in accordance with these Terms.
6.5 While we will take standard industry measures to back-up all Data stored using the Service, you agree to keep a separate back-up copy of all Data uploaded by you, your Personnel or Permitted Users onto the Service.
6.6 You agree that we may store Data (including any Personal Information) in secure servers in Australia and may access that Data (including any Personal Information) in Australia from time to time.
6.7 You indemnify us, our Personnel, affiliates, employees, agents, contributors, third-party content providers and licensors against all actions, suits, liabilities, claims, proceedings, costs, expenses (including legal fees on a full indemnity basis) and loss and damage incurred, suffered or arising out of or in connection with:
a. any actual or alleged claim by a third-party that any Data infringes the rights of that third-party (including Intellectual Property Rights and privacy rights) or that the Data is Objectionable, incorrect or misleading;
b. any direct or indirect consequences of you, your Personnel, Permitted Users or third-parties authorised by you accessing, using or transacting on the Website or attempts to do so and any breach by you, your Personnel, Permitted Users, third-parties authorised by you or your agents of these Terms; and/or
c. any breach of these Terms.
7. FEES
7.1 In procuring the Services you agree to pay us the Fees.
7.2 If you subscribe to the Service using a credit card, the Fees will be automatically debited in advance in the amount that correlates with the Plan that has been selected on the pricing page of the Website, or as otherwise agreed with us via a Custom Plan. In procuring the Services, you warrant that you have familiarised yourself with, and agree to be bound by, the applicable terms and conditions of use, privacy policy and other relevant legal documentation provided by those third-parties that we appoint to facilitate payments on our behalf.
7.3 The Fees exclude GST, which you must pay on taxable supplies. Please note that GST is not payable on those Services provided to persons located outside of Australia (as determined by the billing address provided to us).
7.4 You must pay the Fees:
a. in accordance with the payment terms set out on our pricing page on the Website; and
b. electronically, in cleared funds, without any set off or deduction.
7.5 We may adjust the Fees by giving at least 30 days’ notice. If you do not agree to the adjusted Fees, you may terminate these Terms and your right to access and use the Service on no less than 10 days’ notice, provided the notice is received by us before the effective date of the Fee adjustment. If you do not terminate these Terms and your right to access and use the Service in accordance with this clause, you are deemed to have accepted the adjusted Fees.
7.6 Following payment of the Fee, you will be issued with a receipt to confirm that payment has been received and we may record your purchase details for future use.
7.7 You acknowledge and agree that the cost of our travel for any training purposes is not included in the Fee for the Service. The duration of training that may be included in your Service will depend on the particular Plan that you select or as otherwise agreed with us via a Custom Plan:
a. all Plans and Custom Plans will have access to in-product guidance (access to an onboarding guide within the product itself).
b. Gold and Platinum Plan users are entitled to 90-minute WebEx training at a time and date to be mutually agreed between you and us. In order to redeem your WebEx training session, you must make arrangements with us pertaining to the time/date of the training session within 30 days of the Start Date. For the avoidance of doubt, if you have not contacted us with respect to the WebEx training session by the end of this 30-day time period, your entitlement to receive a WebEx training session will lapse.
7.8 The 10% discount that we offer on annual subscriptions applies only to new customers in their first year of subscribing to a Bronze, Silver or Gold Plan.
7.9 Should you elect to change your subscription from an annual subscription to a monthly subscription and you have already paid the annual subscription Fees attributable to that Year, we will not refund any outstanding portion of the annual subscription Fee. In such circumstances, the monthly Fee will commence when your next billing cycle commences following completion of the Year.
8. INTELLECTUAL PROPERTY
8.1 The Website, Service and all of our related services are subject to copyright and other Intellectual Property Rights. The material on the Website is protected by copyright under the laws of Australia and through international treaties. Unless otherwise indicated, title to, and all Intellectual Property Rights (including copyright) in, the Service, the Website, and all Underlying Systems is and remains our property. You must not contest or dispute that ownership, or the validity of those Intellectual Property Rights.
8.2 Title to, and all Intellectual Property Rights in, the Data (as between the parties) remains your property. You grant us a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate the Data for any purpose in connection with the exercise of our rights and performance of our obligations in accordance with these Terms. You acknowledge and agree that the Analytical Data is not captured by this clause 8.2 and that all Intellectual Property Rights subsisting in the Analytical Data is and remains our property. You must not content or dispute the ownership or validity of our Intellectual Property Rights in the Analytical Data.
8.3 To the extent not owned by us, you grant us a royalty-free, transferable, irrevocable and perpetual licence to use for our own business purposes any know-how, techniques, ideas, methodologies, and similar Intellectual Property used by us in the provision of the Service.
8.4 If you provide us with ideas, comments or suggestions relating to the Service or Underlying Systems (together, feedback):
a. all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by us; and
b. we may use or disclose the feedback for any purpose.
9. CONFIDENTIALITY
9.1 Each party must, unless it has the prior written consent of the other party:
a. keep confidential at all times the Confidential Information of the other party;
b. effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorised access or use; and
c. only disclose the other party’s Confidential Information to its Personnel or professional advisors on a need to know basis only and, in that case, ensure that any Personnel or professional advisor to whom it discloses the other party’s Confidential Information is aware of, and complies with, clauses 9.1a and 9.1b.
9.2 The obligation of confidentiality in clause 9.1 does not apply to any disclosure or use of Confidential Information:
a. for the purpose of performing a party’s obligations, or exercising a party’s rights, under these Terms;
b. required by law (including under the rules of any stock exchange);
c. which is publicly available through no fault of the recipient of the Confidential Information or its Personnel;
d. which was rightfully received by a party from a third-party without restriction and without breach of any obligation of confidentiality; or
e. by us if required as part of a bona fide sale of our business (assets or shares, whether in whole or in part) to a third-party, provided that we enter into a confidentiality agreement with the third-party on terms no less restrictive than this clause 9.
10. WARRANTIES
10.1 Each party warrants that it has full power and authority to enter into, and perform its obligations under, these Terms.
10.2 To the maximum extent permitted by law:
a. our warranties are limited to those set out in these Terms, and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise (including any warranty under Australian Consumer Law) are expressly excluded and, to the extent that they cannot be excluded, our liability is limited to:
i. supplying the Service again; and/or
ii. paying the costs of having the Service supplied again; or
iii. payment of an amount not exceeding $AUD1,000.00,
as determined by us in our sole discretion; and
b. we make no representation concerning the quality of the Service and do not promise that the Service will:
i. meet your requirements or be suitable for a particular purpose, including that the use of the Service will fulfil or meet any statutory role or responsibility that you may have; or
ii. be secure, free of viruses or other harmful code, uninterrupted or error free.
10.3 You agree and represent that you are acquiring the Service, and accepting these Terms, for the purpose of trade. The parties agree that:
a. to the maximum extent permissible by law, the Australian Consumer Law and any other applicable consumer protection legislation does not apply to the supply of the Service or these Terms; and
b. it is fair and reasonable that the parties are bound by this clause 10.3.
10.4 You acknowledge that we do not make any terms, guarantees, warranties, representations or conditions whatsoever regarding the Services other than provided for pursuant to these Terms.
10.5 Our services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:
a. to cancel your service contract with us; and
b. to a refund for the unused portion, or to compensation for its reduced value.
You are also entitled to be compensated for any other reasonably foreseeable loss or damage.
If the failure does not amount to a major failure, you are entitled to have problems with the service rectified in a reasonable time and, if this is not done, to cancel your contract and obtain a refund for the unused portion of the contract.
10.6 If you believe that our service has been provided in a manner other than is permitted by these Terms (including ‘failures’ and ‘major failures’ as contemplated by the Australian Consumer Law), you must provide written notification to us within 2 Business Days of you becoming aware of such problem. Written notification must be sent to [email protected] and must include all information relevant to articulate your perceived problem and your views as to how the services have been provided in a manner other than is contemplated by these Terms.
11. LIABILITY
11.1 Our maximum aggregate liability under or in connection with these Terms or relating to the Service, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not in any Year exceed an amount equal to the Fees paid by you or the person/entity that authorised your access relating to the Service in the previous Year (which in the first Year is deemed to be the total Fees paid by you from the Start Date to the date of the first event giving rise to liability). The cap in this clause 11.1 includes the cap set out in clause 10.2a.
11.2 Without limiting the foregoing, we are not liable to you under or in connection with these Terms or the Service for any:
a. loss of profit, revenue, savings, business, use, data (including Data), and/or goodwill; or
b. consequential, indirect, incidental or special damage or loss of any kind.
11.3 Clauses 11.1 and 11.2 do not apply to limit our liability under or in connection with these Terms for:
a. personal injury or death; or
b. fraud or wilful misconduct.
11.4 Nothing in these Terms applies to limit your liability:
a. to pay the Fees or any amount calculated in accordance with clause 12.6;
b. under the indemnity in clause 6.7; or
c. for those matters stated in clause 11.3a to 11.3b.
11.5 Neither party will be responsible, liable, or held to be in breach of these Terms for any failure to perform its obligations under these Terms or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under these Terms, or by the negligence or misconduct of the other party, its Permitted Users or its Personnel.
11.6 Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with these Terms or the Service.
11.7 Use of the Website, the Service and any of our related services is at your own risk. Everything on the Website, the Service and our related services are provided to you on an “as is” and “as available” basis, without warranty or condition of any kind. None of our affiliates, directors, officers, employees, agents, contributors, Personnel, third-party content providers or licensors make any express or implied representation or warranty about the Website content or the Service. This includes (but is not restricted to) loss or damage you might suffer as a result of any of the following:
a. failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data (including the Data), communication line failure, unlawful third-party conduct, or theft, destruction, alteration or unauthorised access to records;
b. the accuracy, suitability or currency of any information on the Website, the Service or any of our related services;
c. costs incurred as a result of you using the Website or the Service;
d. the Website content or operation in respect to links which are provided for your convenience; or
e. any failure to complete a transaction, or any loss arising from e-commerce transacted on the Website.
11.8 Without limiting any other provision of these Terms, where you have granted access to the Service to a member of your Personnel or a Permitted User, we will have no liability to that person or Permitted User over and above the liability which we otherwise expressly accept under these Terms. You are liable for and agree to indemnify us in respect of any claim, action, damage, loss, cost, charge, expense, penalty, fine or payment which we incur are liable for as a result of any of your Personnel or Permitted Users making a claim against us for any amount or compensation over and above that which we expressly accept under these Terms.
12. TERM, TERMINATION AND SUSPENSION
12.1 Unless terminated under this clause 12, these Terms and your right to access and use the Service:
a. starts on the date on which you access the Website or the Start Date (whichever is the earlier); and
b. subject to clause 12.2, continues until a party gives at least 30 days’ written notice to the other party that these Terms and your access to and use of the Service will terminate on the expiry of that notice.
12.2 Subject to clause 7.5 and clause 12.4, if the subscription option you have selected (or in the case of Custom Plans, as agreed with us) includes a minimum initial term, the earliest date for termination under clause 12.1b will be the expiry of that initial term.
12.3 Where you elect to pay the Fees by way of credit card on a monthly basis, updated subscription and/or billing arrangements (including termination of an existing subscription) are as stipulated at:
a. https://stripe.com/docs/billing/subscriptions/prorations
b. https://stripe.com/docs/billing/subscriptions/upgrading-downgrading.
The calculation methods and associated commentary included in these webpages are incorporated into these Terms by reference and you acknowledge and agree to their application to the Services and these Terms.
12.4 We may, by written notice to you, immediately terminate these Terms and your right to access the Website and use the Service if:
a. you, your Personnel or Permitted Users have breached any provision of these Terms or we reasonably consider that you intend to breach any provision;
b. you become insolvent, liquidated or bankrupt, have an administrator, receiver, liquidator, statutory manager, mortgagee’s or charge’s agent appointed, become subject to any form of insolvency action or external administration, or cease to continue business for any reason;
c. we are required to do so by law;
d. the agent with whom we partnered to offer you the Services has terminated its relationship with us; or
e. our provision of Services to you is, in our reasonable opinion, no longer commercially viable.
12.5 Termination of these Terms does not affect either party’s rights or obligations that accrued before that termination.
12.6 On termination of these Terms, you must pay all Fees for the provision of the Service prior to that termination. Upon termination, you must pay to us:
a. all Fees attributable to the Services prior to the date of termination (including the 30-day notice period contemplated by clause 12.1b if applicable); and
b. the amount calculated in accordance with clause 12.3, if applicable.
12.7 No compensation is payable by us to you as a result of termination of these Terms for whatever reason, and you will not be entitled to a refund of any Fees that you have already paid.
12.8 Except to the extent that a party has ongoing rights to use Confidential Information, at the other party’s request following termination of these Terms but subject to clause 12.9, a party must promptly return to the other party or destroy all Confidential Information of the other party that is in the first party’s possession or control.
12.9 At any time prior to one month after the date of termination, you may request:
a. a copy of any Data stored using the Service, provided that you pay our reasonable costs of providing that copy. On receipt of that request, we will provide a copy of the Data in a common electronic form. We do not warrant that the format of the Data will be compatible with any software; and/or
b. deletion of the Data stored using the Service, in which case we will use reasonable efforts to promptly delete that Data.
To avoid doubt, we are not required to comply with clause 12.9a to the extent that you have previously requested deletion of the Data.
12.10 Without limiting any other right or remedy available to us, we, without notice, restrict or suspend your access to the Website and use of the Service and/or delete, edit or remove the relevant Data if we consider that you or any of your Personnel or Permitted Users have:
a. undermined, or attempted to undermine, the security or integrity of the Service or any Underlying Systems;
b. used, or attempted to use, the Service:
i. for improper or illegal purposes;
ii. registered for multiple accounts for the purposes of circumventing Free Trial allowances;
iii. registered with an email address that is not hosted by a verfiable domain;
iv. registered with credentials that are anonymous or otherwise unable to be verified through freely available, public information sources;
v. in a manner, other than for normal operational purposes, that materially reduces the operational performance of the Service;
c. transmitted, inputted or stored any Data that breaches or may breach these Terms or any third-party right (including Intellectual Property Rights and privacy rights), or that is or may be Objectionable, incorrect or misleading;
d. otherwise breached these Terms; or
e. impacted our name or reputation, or your actions otherwise violate the rights of another party.
13. GENERAL
13.1 Neither party is liable to the other for any failure to perform its obligations under these Terms to the extent caused by Force Majeure.
13.2 No person other than you and us has any right to a benefit under, or to enforce, these Terms.
13.3 For us to waive a right under these Terms, that waiver must be in writing and signed by us.
13.4 We are your independent contractor, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under these Terms.
13.5 If we need to contact you, we may do so by email or by posting a notice on the Website. You agree that this satisfies all legal requirements in relation to written communications. You may give notice to us under or in connection with these Terms by emailing [email protected].
13.6 These Terms, and any dispute relating to these Terms or the Service, are governed by and must be interpreted in accordance with the laws of Australia. Each party submits to the non-exclusive jurisdiction of the Courts of New South Wales in relation to any dispute connected with these Terms or the Service. If a dispute arises out of these Terms, either party may not commence any Tribunal or Court proceedings in relation to the dispute, unless the following regime has been complied with (except where urgent interlocutory relief is sought):
a. a party to the Terms claiming a dispute (Dispute) has arisen under the Terms, must give written notice (Dispute Notice) to the other party detailing the nature of the Dispute, the desired outcome and the action required to settle the Dispute.
b. On receipt of a Dispute Notice, the parties must, within 30 days of the date of the Dispute Notice, endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree. If the Dispute has not been resolved within 30 days of the date of the Dispute Notice, the parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the President of the NSW Law Society or his or her nominee. The parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The parties must each pay their own costs associated with the mediation. The mediation will be held in Sydney, Australia.
c. All communications concerning negotiations made by the parties arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as “without prejudice” negotiations for the purpose of applicable laws of evidence.
d. If 7 days have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either party may ask the mediator to terminate the mediation and the mediator must do so.
13.7 Clauses which, by their nature, are intended to survive termination of these Terms continue in full force and effect despite termination of these Terms.
13.8 If any part or provision of these Terms is or becomes illegal, unenforceable, or invalid, that part or provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity. If modification is not possible, the part or provision must be treated for all purposes as severed from these Terms. The remainder of these Terms will remain in full force and effect.
13.9 Subject to clauses 2.1 and 7.5, any variation to these Terms must be in writing and signed by both parties.
13.10 These Terms set out everything agreed by the parties relating to the Service, and supersede and cancel anything discussed, exchanged or agreed prior to the Start Date. The parties have not relied on any representation, warranty or agreement relating to the Service that is not expressly set out in these Terms, and no such representation, warranty or agreement has any effect from the Start Date.
13.11 You may not assign, novate, subcontract or transfer any right or obligation under these Terms without our prior written consent, that consent not to be unreasonably withheld. You remain liable for your obligations under these Terms despite any approved assignment, subcontracting or transfer.
13.12 You acknowledge that the Service may link to third-party websites or feeds that are connected or relevant to the Service. Any link from the Service does not imply that we endorse, approve or recommend, or have responsibility for, those websites or feeds or their content or operators. To the maximum extent permitted by law, we exclude all responsibility or liability for those websites or feeds.
13.13 We take your privacy seriously and any information provided through your use of the Website and/or the Services is subject to our Privacy Policy, which is available at www.sectara.com/privacy-policy.
13.14 Both parties confirm and declare that the provisions of the Terms are fair and reasonable and both parties have taken the opportunity to obtain independent legal advice and declare the Terms are not against public policy on the grounds of inequality or bargaining power or general grounds of restraint of trade.
