Welcome to OPEX!

These terms and conditions, together with any Proposal (Terms) govern your use of, and access to, OPEX, an online contract exchange platform for real estate projects located at https://www.opex.com.au/ (Platform). 

By using the Platform or otherwise accepting the benefit of any part of the Platform, you agree to be bound by these Terms which form a binding contractual agreement between you or the company you represent (you) and OPEX Contracts Pty Ltd (ACN 625 729 071) (OPEX, our, we or us). You represent and warrant that you have valid authority to enter into these Terms on behalf of any entity you may represent.

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

Please read these Terms carefully before agreeing to use or access the Platform. 

1    THE OPEX PLATFORM

1.1    THE PLATFORM 

The Platform includes the Software, the Hosted Services and the Support Services. 

 

1.2    THE SOFTWARE

(a)    During the Subscription Period, we grant to you a non-exclusive and non-transferable licence to use the Software and Documentation.
(b)    We may from time to time in our absolute discretion release enhancements to the Software, where enhancements mean any upgraded, improved, modified or new versions of the Software. Any enhancements to the Software will not limit or otherwise affect these Terms. Enhancements may cause downtime or delays from time to time, and credits will not be provided for such downtime. 
(c)    Unless otherwise agreed in writing, we may not provide access, or suspend access, to any part of the Platform until you have paid the relevant Fees.

 

1.3    HOSTED SERVICES

We will store User Data you upload to the Software using a third party hosting service selected by us in locations in Australia (Hosting Service), subject to the following terms:

(a)    (service quality) While we will use our best efforts to select an appropriate hosting provider, we do not guarantee that the Hosting Service will be free from errors or defects or that User Data will be accessible or available at all times.
(b)    (security) We will use our best efforts to ensure that User Data is stored securely. However, we do not accept responsibility or liability for any unauthorised use, destruction, loss, damage or alteration to User Data, including due to hacking, malware, ransomware, viruses, malicious computer code or other forms of interference.
(c)    (backups & disaster recovery) In the event that User Data is lost due to a system failure (e.g. a database or webserver crash), we cannot guarantee that any backup will be available, or if available that such a backup will be free from errors or defects.

 

1.4    SUPPORT

(a)    To help you resolve technical issues, we will maintain FAQs and a Knowledgebase that all Users can access via the Platform.
(b)    We will also provide you with limited support services where necessary to resolve technical issues with the Software (Support Services). You must first endeavour to resolve any issues with the Software internally and we will not assist with issues that are beyond our reasonable control. 
(c)    You are responsible for all internal administration and managing access, including password management and assisting your Personnel to access and use the Software.
(d)    You will not have any claim for delay to your access to the Software due to any failure or delay in Support Services. 

 

1.5    THIRD PARTY SYSTEMS

(a)    You acknowledge and agree that third party services and software may be integrated into the Platform, such as PEXA and legal practice management systems (Third Party Systems), and such Third Party System’s terms & conditions (Third Party Terms) may apply to your use of the Platform.
(b)    You agree to any Third Party Terms that are used in providing the Platform, and we will not be liable for any loss or damage suffered by you in connection with such Third Party Systems.
(c)    You acknowledge and agree that issues can arise with transferring data to software and between software, and when integrating software with other software. We cannot guarantee the integration processes to other software will be free from errors, defects or delay. You agree that we will not be liable for the functionality of any Third Party Systems.

 

1.6    PEXA TRANSITION

If your or our use of the Platform involves a transition to PEXA, then it is agreed that:

(a)    use of PEXA shall be strictly in accordance with its terms and conditions of use;
(b)    each User, including us, shall be responsible for making their own arrangements with PEXA for its use; and
(c)    we shall not be responsible for any malfunction, lack of availability of or loss of User Data from PEXA which is not caused by the way in which we use PEXA.

 

1.7    LINKS

The Platform may provide links to other websites or resources. You acknowledge that we:

(a)    have no control over the content of any such websites or resources;
(b)    are not responsible if those websites or resources are not available for any reason;
(c)    do not endorse the content of any such website or resource; and
(d)    will not be responsible for nor liable for any content, advertising, products or other materials on or available from those websites or resources.

 

2    ACCOUNT REGISTRATION

2.1    TYPES OF USERS

All Users must register an account to use and access the Platform. All Users agree to be bound by these Terms. There are currently two types of Users:

(a)    Primary Users, which are businesses who have entered into a Proposal with us to use the Platform for a particular real estate development project; and 
(b)    Secondary Users, which are businesses or persons who has been invited by a Primary User to use the Platform.

 

2.2    PROPOSAL

If you are a Primary User, the commercial terms of your Subscription, as well as additional terms and conditions, will be set out in a proposal, which are incorporated into these Terms (Proposal). In the event of an inconsistency between these Terms and the Proposal, the terms of the Proposal shall prevail.

 

2.3    ACCOUNT REGISTRATION PROCESS

(a)    As part of the account registration process and as part of your continued use of the Platform, all Users may be required to provide business details and/or personal information, such as your email address, business name, first and last name, preferred username, a secure password, billing, postal and physical addresses, mobile phone number, payment details and other information as determined by us from time to time. You warrant that any information you give to us in the course of completing the registration process is accurate, honest, correct and up to date.
(b)    The account registration process may be slightly different for the different types of Users.
(c)    Once you complete the account registration process, OPEX may, in its absolute discretion, choose to accept you as a registered user within the Platform and provide you with an account.
(d)    OPEX may, in its absolute discretion, suspend or cancel your account for any reason, including for any failure to comply with these Terms.

 

3    SUBSCRIPTION FEES AND PAYMENT

(a)    All Primary Users must pay fees to us in the amounts and at the times specified in the Proposal, or as otherwise mutually agreed in writing (Fees). The Fees may be based on a per contract, per document or per project basis and may include a monthly subscription fee. 
(b)    Unless otherwise agreed in writing, the Fees are due and payable on a monthly basis for the duration of the Subscription Period, and each month the Fees will be debited from your nominated account using the method and at the time set out in your Proposal.
(c)    All Fees are non-refundable for change of mind.
(d)    Your Subscription will continue to renew on a monthly basis indefinitely, and you must pay all applicable Fees in respect of each monthly period, unless you cancel your Subscription in accordance with clause 4. Otherwise, we will continue to debit the applicable Fees from your account each month. We will not pay any charge back amount if you fail to cancel your Subscription in accordance with this clause. By choosing a recurring payment plan, you acknowledge that your Subscription has an initial and recurring payment feature and you accept responsibility for all recurring charges prior to your cancellation of your Subscription. We may submit periodic charges for the Fees without further authorisation from you, until you provide prior written notice (receipt of which is confirmed by us) that you have terminated this authorisation or wish to change your payment method. Such notice will not affect charges submitted before we could reasonably act on such notice. To terminate your authorisation or change your payment method, please contact us via the Platform.
(e)    Unless otherwise indicated, the Fees do not include GST. In relation to any GST payable for a taxable supply by us, you must pay the GST subject to us providing a tax invoice.
(f)    We reserve the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard or American Express).
(g)    We reserve the right, from time to time, to change the Fees. We will notify you in advance if we do this. 

 

4    CANCELLATION OF YOUR SUBSCRIPTION

(a)    You may cancel your Subscription by notice to us using the functionality provided in the Platform. Your Subscription will end in the then current billing cycle, and you will be charged for that billing cycle. You will not be refunded for any portion of that billing cycle. 
(b)    Your licence to the Platform under these Terms will last for the remainder of the then current billing cycle to ensure you have an opportunity to retrieve all data you may need from the Software. Once the then current billing cycles ends, we will have no responsibility to store or otherwise retain any data, and you release us in respect of any loss or damage which may arise out of us not retaining any data beyond that point.
(c)    Your access to the Platform will be revoked at the end of the relevant billing cycle in which you cancel your Subscription.

 

5    YOUR OBLIGATIONS

(a)    You must, and must ensure that all Users, comply with these Terms at all times. You acknowledge and agree that we will have no liability in respect of any damage, loss or expense which arises in connection with your, your Personnel’s, or any User’s, breach of these Terms, and you indemnify us in respect of any such damage, loss or expense. 
(b)    You must not, and must not encourage or permit any User, Personnel or any third party to, without our prior written approval:

(i)    upload sensitive information or commercial secrets using the Software;
(ii)    upload any inappropriate, offensive, illicit, illegal, pornographic, sexist, homophobic or racist material using the Software;
(iii)    access the Platform if you are a competitor or employee of a competitor of the Platform;
(iv)    for competitive purposes, access the Platform to monitor its availability, performance or functionality, or for benchmarking or other competitive purpose;
(v)    make copies of the Documentation or the Software;
(vi)    adapt, modify or tamper in any way with the Software;
(vii)    remove or alter any copyright, trade mark or other notice on or forming part of the Software or Documentation;
(viii)    create derivative works from or translate the Software or Documentation;
(ix)    publish or otherwise communicate the Software or Documentation to the public, including by making it available online or sharing it with third parties;
(x)    sell, loan, transfer, sub-licence, hire or otherwise dispose of the Software or Documentation to any third party;
(xi)    decompile or reverse engineer the Software or any part of it, or otherwise attempt to derive its source code; 
(xii)    attempt to circumvent any technological protection mechanism or other security feature of the Software; or
(xiii)    permit any use of the Platform other than in accordance with your Subscription.

(c)    In using the Platform, you must:

(i)    immediately notify us or any system administrator of any unauthorised use of your password or any other breach of security;
(ii)    keep the compulsory component of your contact information and personal profile up to date;
(iii)    notify the system administrator immediately if you cease to be qualified to use the Platform in your current capacity;
(iv)    comply with any instructions relating to use of the Platform; and
(v)    comply with all relevant laws, regulations and directions.

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

 

6    USER OBLIGATIONS

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

(a)    to comply with each of your obligations in these Terms;
(b)    not to intimidate, harass, impersonate, stalk, threaten, bully or endanger any other User or distribute unsolicited commercial content, junk mail, spam, bulk content or harassment in connection with the Platform;
(c)    to not share your Platform account information with any other person and that any use of your account by any other person is strictly prohibited. You must immediately notify us of any unauthorised use of your account, password or email, or any other breach or potential breach of the Platform’s security;
(d)    to not use the Platform for any purpose other than for the purpose for which it was designed, including you must not use the Platform in a manner that is illegal or fraudulent or facilitates illegal or fraudulent activity (including requesting or accepting a job which includes illegal activities or purposes);
(e)    not to act in any way that may harm our reputation or that of associated or interested parties or do anything at all contrary to the interests of us or the Platform; 
(f)    you must not make any automated use of the Platform and you must not copy, reproduce, translate, adapt, vary or modify the Platform without our express written consent; 
(g)    that we may change any features of the Platform at any time on notice to you;
(h)    that information given to you through the Software, by us or another User, is general in nature and we take no responsibility for anything caused by any actions you take in reliance on that information; and
(i)    that we may cancel your account at any time if we consider, in our absolute discretion, that you are in breach or are likely to breach this clause 6.

 

7    YOUR USER DATA

7.1    WARRANTIES

By uploading or posting any User Data to the Platform, you represent and warrant that:

(a)    you are authorised to provide the User Data (including by being authorised to provide any services that you represent you provide);
(b)    the User Data is accurate and true at the time it is provided;
(c)    you only share User Data with intended recipients; 
(d)    the User Data is free from any harmful, discriminatory, defamatory or maliciously false implications and does not contain any offensive or explicit material;
(e)    the User Data is not “passing off” of any product or service and does not constitute unfair competition; 
(f)    the User Data does not infringe any Intellectual Property Rights, including copyright, trademarks, business names, patents, confidential information or any other similar proprietary rights, whether registered or unregistered, anywhere in the world;
(g)    you are solely responsible for any deletion, correction, destruction, damage, loss or failure to store any User Data on your part or on the part of your Users;
(h)    the User Data does not contain any viruses or other harmful code, or otherwise compromise the security or integrity of the Platform or any network or system; and
(i)    the User Data does not breach or infringe any applicable laws.

 

7.2    YOUR OWNERSHIP OF THE USER DATA

You retain ownership of the User Data and the Intellectual Property Rights in such User Data. However, your access to the User Data is contingent on full payment of all relevant Fees owing to us.

 

7.3    LICENCE TO US

(a)    You grant, to us a perpetual, irrevocable, transferable, worldwide and royalty-free licence (including the right to sublicense) to use, copy, store, backup, modify, reproduce and adapt any Intellectual Property Rights in any User Data in order for you to access and use the Platform, including for the purpose of:

(i)    backing up the User Data in accordance with 7.4;
(ii)    benchmarking aspects of the financial or contractual performance of real estate transactions without identifying you or any real estate development or person to whom the User Data relates;
(iii)    communicating with Users for the purpose of regulating or promoting use of the Platform;
(iv)    promoting use or better use of the Platform; or
(v)    complying with any law, regulation or directive of government.

(b)    If it is determined that you retain moral rights (including rights of attribution or integrity) in any User Data, you forever release us from any and all claims that you could assert against us by virtue of any such moral rights, and you must ensure that all Users grant an equivalent release.
(c)    You indemnify us against all damages, losses, costs and expenses incurred by us arising in connection with any third party claim that User Data infringes any third party’s Intellectual Property Rights.
(d)    We will establish, maintain, enforce and continuously improve safety and security procedures and safeguards against the unauthorised use, destruction, loss or alteration of User Data.

 

7.4    BACKUP OF USER DATA

We adhere to best practice policies and procedures to prevent data loss, including a frequent system data backup regime, but we do not make any guarantees that there will be no loss of User Data. We expressly exclude liability for any loss of User Data no matter how caused. You can request a backup of your User Data at any time provided you have paid all relevant Fees owing to us at the time of the request. Backups will be provided in a common export format determined by us. Additional costs may apply depending on the frequency, size, and delivery requirements of the backups.

 

7.5    REMOVAL

(a)    The Software acts as a passive conduit for the online distribution of User Data and has no obligation to screen User Data. However, we may, in our absolute discretion, review and remove any User Data at any time without giving any explanation or justification for removing the User Data including (without limitation) where, in our reasonable opinion, the User Data is illegal, immoral, offensive or infringes any third party Intellectual Property Rights.
(b)    You agree that you are responsible for keeping and maintaining records of User Data.

 

7.6    THIRD-PARTY SYSTEMS AND YOUR USER DATA
You acknowledge and agree that we may allow Third Party Systems to access your User Data as required for the interoperation of such Third Party Systems with the Platform. We shall not be responsible for any disclosure, modification or deletion of your User Data resulting from any such access by Third Party Systems.

 

8    OUR INTELLECTUAL PROPERTY

8.1    OUR OWNERSHIP

We retain ownership, at all times, of the Software and Documentation, including: 

(a)    the Intellectual Property Rights attaching to, or subsisting in, the Software and Documentation;
(b)    any customisations of, and modifications, additions and upgrades to, the Software and Documentation (including where such modifications are made to suit certain client's individual needs);
(c)    information or data, source codes and other information technology relating to or connected with the Software or Documentation; 
(d)    marketing information relating to or connected with the Software or Documentation; and
(e)    technical information, including trade secrets, drawings, plans, encryptions, codes and product descriptions and information relating to or connected with the Software, but excluding any User Data (Software IP).

 

8.2    LICENCE TO YOU

You are granted a licence to the Software IP, in accordance with the scope of your Subscription, and you may make a temporary electronic copy of all or part of any materials provided to you for the sole purpose of viewing them and using them for the purposes of the Software. You must not otherwise reproduce, transmit, adapt, distribute, sell, modify or publish those materials or any Software IP without prior written consent from us or as otherwise permitted by law.

 

9    CONFIDENTIALITY AND PRIVACY

(a)    Except as contemplated by these Terms, a party must not and must not permit any of its officers, employees, agents, contractors or related companies to use or to disclose to any person any Confidential Information disclosed to it by the other party without the disclosing party’s prior written consent. 
(b)    You agree to our Privacy Policy, located on our Website, which is incorporated into these Terms by reference. Please read the Privacy Policy carefully as it governs our collection, use, and disclosure of personal information.
(c)    Each party must promptly notify the other party if it learns of any potential, actual or suspected loss, misappropriation or unauthorised access to, or disclosure or use of Confidential Information or other compromise of the security, confidentiality, or integrity of Confidential Information (Security Breaches).
(d)    The notifying party will investigate each potential, actual or suspected Security Breach and assist the other party in connection with any related investigation. 

 

10    LIABILITY

10.1    WARRANTIES AND LIMITATIONS

(a)    (Warranties) We warrant that:

(i)    during the Subscription Period:

(A)    we will provide the Platform in a professional manner using due care, skill and diligence;
(B)    the Software will perform substantially in accordance with the Documentation; and
(C)    the Platform will be reasonably fit for the purpose for which you intend to use it and will be provided as described to you in, and subject to, these Terms; 

(ii)    we own, or have a licence to, the Intellectual Property Rights in the Software; and
(iii)    to our knowledge, the use of the Software in accordance with these Terms will not infringe the Intellectual Property Rights of any third party.

(b)    (Errors) We will correct any errors, bugs or defects in the Software which arise during the Subscription Period and which are notified to us by you unless the errors, bugs or defects:

(i)    result from the interaction of the Software with any other platform or any computer hardware, software or services not approved in writing by us;
(ii)    result from any misuse of the Software; or
(iii)    result from the use of the Software by you other than in accordance with these Terms or the Documentation.

(c)    (Updates) We will provide regular updates and improvements to the Platform as part of your Subscription but any major updates requested by you, including for substantial changes in the functionality of the Platform, may require increased fees or subscription upgrades. 

(d)    (Service Limitations) The Platform is made available to you strictly on an ‘as is’ basis and your use of the Platform is at your sole risk. Without limitation, you acknowledge and agree that we cannot guarantee that:

(i)    the Platform will be free from errors or defects;
(ii)    the Platform will be accessible at all times;
(iii)    messages sent through the Platform will be delivered promptly, or delivered at all;
(iv)    information you receive or supply through the Platform will be secure or confidential; or
(v)    any information provided through the Platform is accurate or true.

(e)    (Access) Access to and use of the Platform is dependent on a number of factors outside our control, including:

(i)    the operation of Third Party Systems;
(ii)    traffic and technical difficulties with the internet or public telecommunication systems;
(iii)    the potential for security breaches;
(iv)    actions of government;
(v)    capacity, failures or inadequacies in your computer system, your Personnel, and your telecommunications arrangements; and
(vi)    the quality and nature of data entered by you or your Personnel,
and we are not responsible for any such things and will have no liability to you in relation to events or failures caused by any of them.

(f)    (Legal Information) We do not accept responsibility for the completeness or accuracy of any legal information provided in the Platform and you acknowledge that you must not rely on that information as a substitute for professional legal advice.

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

(h)    (Consumer law) Nothing in these Terms is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). 

 

10.2    LIMITATION OF LIABILITY

(a)    We do not accept responsibility for any unauthorised use, destruction, loss, damage or alteration to your data or information, your computer systems, mobile phones or other electronic devices arising in connection with use of the Software. 
(b)    You must take your own precautions to ensure that the processes which you employ for accessing the Software does not expose you to the risk of data loss, hacking, malware, ransomware, viruses, malicious computer code or other forms of interference.
(c)    To the maximum extent permitted by law, OPEX’s liability for all claims in aggregate (whether those claims be for breach of contract, negligence or otherwise, and whether those claims be only for economic loss, or for personal injury or other damage) arising under or in connection with these Terms, the Platform or any other services provided by OPEX:

(i)    is totally excluded, to the extent it concerns liability for indirect, special and consequential damages, and damages (whether direct or indirect) reflecting loss of revenue, loss of profits and loss of goodwill (except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth)); and
(ii)    is limited, insofar as it concerns other liability, to the total money paid to OPEX by you under these Terms in the 3 months preceding the date of the event giving rise to the relevant liability (or, where there are multiple events, the date of the first such event).

 

10.3    INDEMNITY

You indemnify OPEX and its Personnel from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of:

(a)    the User Data;
(b)    your use of the Platform;
(c)    any breach of these Terms by you;
(d)    any breach of any third party intellectual property rights by you; or
(e)    any negligent, wilful, fraudulent or criminal act or omission by you.

 

11    CHANGES TO THESE TERMS

We may, acting reasonably, change these Terms at any time in accordance with the following procedure:

(a)    we will post a notice to that effect on our Website or the Platform and keep that notice posted for a period of 30 consecutive days;
(b)    we will also notify you by e-mail when we post that notice;
(c)    during that 30-day period you may make submissions to us about the proposed changes;
(d)    we must take those submissions into account before we decide to proceed with the changes, although we are not under any obligation to modify the proposed changes unless they are unreasonable;
(e)    if we choose not to take those submissions into account you may, without penalty, elect to cease using the Platform at the expiry of that 30-day period; and
(f)    any change made in this way shall be effective from the date We make the change.

 

12    DISPUTES AND TERMINATION

12.1    DISPUTE RESOLUTION

(a)    All Disputes arising between you and us out of or related to our relationship or these Terms, including any question regarding its existence, validity or termination, shall be dealt with as follows:

(i)    in the first instance the dispute shall be referred to the chairman, chief executive officer or principal of each of the parties who shall within 7 days of such referral meet with a view to finding a mutually agreed resolution to the dispute; and
(ii)    if such meeting fails to resolve the dispute, then it shall upon written notice by either party be referred to and finally resolved by arbitration under the Rules of The Institute of Arbitrators and Mediators Australia, which rules are deemed to be incorporated by reference into this clause.

(b)    Neither party shall commence legal proceedings before delivery of the decision of an arbitrator and pending submission to arbitration and thereafter until the delivery of the decision of the arbitrator, the parties shall, as far as may be possible, continue to perform all their obligations under these Terms, unless these Terms been terminated.

 

12.2    TERMINATION BY US

(a)    We may terminate these Terms or any Subscription in whole or in part immediately by written notice to you if:

(i)    you, a member of your Personnel, or a User, are in breach of any term of these Terms or any part of a Subscription; or
(ii)    you become subject to any form of insolvency or bankruptcy administration.

(b)    Upon termination of these Terms by us, the Fees already paid will be non-refundable, and you must promptly pay:

(i)    the remainder of the Fees applicable for the Subscription Period as if the agreement had not been terminated;
(ii)    our expenses to date; and
(iii)    any payments required by our suppliers to discontinue their work.

 

12.3    TERMINATION BY YOU

You may terminate these Terms in accordance with clause 4 or if: 

(a)    we have committed a material breach of these Terms or a Subscription and have failed to remedy the breach within 30 days’ written notice by you; or
(b)    we become subject to any form of insolvency or bankruptcy administration.

If you validly terminate in accordance with this clause, no further fees will be payable by you (unless later found that such termination was invalid).

 

12.4    TERMINATION OF USERS

If we terminate a Primary User’s Subscription in accordance with clause 12.2 or a Primary User cancels or terminates their Subscription in accordance with clause 4 or clause 12.3, all associated Secondary Users’ access to the Platform may also be terminated. 

 

12.5    TRANSFER OF USER DATA

In the event your Subscription is cancelled or terminated in accordance with these Terms, you may request in writing that we transfer your User Data to you. We will use best efforts to comply with your request, but such transfer will incur a fee determined at our absolute discretion.

 

13    NOTICES

(a)    A notice or other communication to a party under these Terms must be:

(i)    in writing and in English; and
(ii)    delivered via email to the other party, to the email address specified in these Terms, or if no email address is specified in these Terms, then the email address specified in the Proposal or the email most regularly used by the parties to correspond regarding the subject matter of these Terms as at the date of these Terms (Email Address). The parties may update their Email Address by notice to the other party.

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

(i)    24 hours after the email was sent, unless that falls on a Saturday, Sunday or a public holiday in the state or territory whose laws govern these Terms, in which case the notice will be taken to be given on the next occurring business day in that state or territory; or
(ii)    when replied to by the other party,
whichever is earlier.

 

14    FORCE MAJEURE

(a)    Neither party will be liable for any delay or failure to perform its obligations under these Terms if such delay or failure arises out of a Force Majeure Event. 
(b)    If a Force Majeure Event occurs, the relevant party must use reasonable endeavours to notify the other party of:

(i)    reasonable details of the Force Majeure Event; and
(ii)    so far as is known, the probable extent to which such party will be unable to perform or be delayed in performing its obligations under these Terms.

(c)    Subject to compliance with clause 14(b), the party’s relevant obligation will be suspended during the Force Majeure Event to the extent that it is affected by the Force Majeure Event.

(d)    For the purposes of these Terms, a ‘Force Majeure Event’ means any:

(i)    act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;
(ii)    strikes or other industrial action outside of the control of us; or
(iii)    war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic; or
(iv)    any decision of a government authority in relation to COVID-19, or any threat of COVID-19 beyond the reasonable control of us, to the extent it affects our ability to perform our obligations.

 

15    GENERAL

15.1    GOVERNING LAW AND JURISDICTION

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

 

15.2    WAIVER

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

 

15.3    SEVERANCE

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

 

15.4    JOINT AND SEVERAL LIABILITY

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

 

15.5    ASSIGNMENT

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

 

15.6    ENTIRE AGREEMENT

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

 

15.7    INTERPRETATION

(a)    (singular and plural) words in the singular includes the plural (and vice versa);
(b)    (currency) a reference to $; or “dollar” is to Australian currency;
(c)    (gender) words indicating a gender includes the corresponding words of any other gender;
(d)    (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
(e)    (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
(f)    (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
(g)    (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of these Terms, and a reference to these Terms includes all schedules, exhibits, attachments and annexures to it;
(h)    (document) a reference to a document (including these Terms) is to that document as varied, novated, ratified or replaced from time to time;
(i)    (headings) headings and words in bold type are for convenience only and do not affect interpretation;
(j)    (includes) the word “includes” and similar words in any form is not a word of limitation; and

(k)    (adverse interpretation) no provision of these Terms will be interpreted adversely to a party because that party was responsible for the preparation of these Terms or that provision.