SOFTWARE AS A SERVICE AGREEMENT (Terms and Conditions) 
This Software as a Service Agreement (Agreement) is between DSYNC Pty Ltd (ABN 92 613 605 575)  (referred to as DSYNC) and the individual or entity agreeing to this Agreement (referred to as you or your), collectively referred to as the Parties and each a Party. This Agreement governs the access and use of the DSYNC cloud-based system integration software and data linking platform (Software) and any related services made available to you (together with the Software referred to as Services). The Services are available via the DSYNC.com domain and related website(s) as notified to you (Website) accessible on supported web browsers.

 

1.                  ACCEPTANCE

1.1               This Agreement forms a binding legal agreement between the Parties. By using the Services, you agree to comply with and be legally bound by the terms of this Agreement. Please read this Agreement carefully. If you have any questions, you should contact DSYNC using the contact details at the end of this Agreement.

1.2               You acknowledge and agree to this Agreement by: (i) ticking a checkbox saying ‘I Agree’; (ii) accessing or using the Services; or (iii) making any payment for the Services. If you do not agree to this Agreement, you should cease accessing or using the Services and Website immediately. If you are agreeing to this Agreement on behalf of an entity including but not limited to a company or other organisation, you represent and warrant that you have the power and authority to enter into this Agreement and bind such organisation and act on behalf of any person who is using the Services (each a User, collectively referred to as Users).

1.3               You agree the Services will only be used by Users who are your employees, contractors or authorised agents acting in the ordinary course of business and directly working for or managed by you. You must ensure that each User using or accessing the Services does so in accordance with the terms of this Agreement.

1.4               DSYNC reserves the right to make changes to this Agreement at any time, effective upon the posting of a modified Agreement. DSYNC will communicate these changes to you via email or the Website. It is your obligation to ensure that you (and each User where applicable) have read, understood and agree to the most recent Agreement available on the Website.

2.                  ADDITIONAL TERMS AND CONDITIONS

2.1               This Agreement incorporates DSYNC’s Privacy Policy and Website Terms of Use as set out on the Website.

3.                  SOFTWARE AS A SERVICE

3.1               Users can access and use the Services via the Website on any supported computer, mobile, tablet or other device (Device). DSYNC recommends each User access the Services and Website using the recommended browsers as notified to you.

3.2               To access the Services, you must register for an account (Account) by providing the information requested by DSYNC via the Website including the Account holder’s full name and email address (User Information). Successful registration for an Account will grant you access to a free trial of the Services (Trial Services) for a limited period of time as set out on the Website (Trial Period).

3.3               To access the Services after expiry of the Trial Period, you must: provide the information requested in DSYNC’s registration form as set out on the Website (Registration Form); subscribe to the Services (Subscription); and pay the applicable fees for the Subscription (Subscription). Your Subscription Fees will vary subject to the period of Subscription (Subscription Period) and the functionalities and Services you require in accordance with the Subscription level identified by you in the Registration Form.

3.4               You are responsible for determining (a) what Services you require; (b) if you are an organisation with an Account to manage multiple users, who will be a User of the Services and the User’s access level; or (c) whether any User should have access to the Services revoked at any time for any reason via your Account.

3.5               DSYNC may, upon your request and in accordance with your Registration Form, customise the Services such as incorporating your logo or trade mark into the appearance of the Services accessed by your Users. It is at DSYNC’s sole discretion whether or not the Services are customised in accordance with your request. If DSYNC agrees to customise the Services for you and, subject to the level of customisation, a separate agreement may be entered into between the Parties outlining the terms and conditions of your customisation.

4.              OFFERS AND PROMOTIONS

4.1           DSYNC may, from time to time, make offers or promotions which may be applicable to the Services as set out on the Website including but not limited to the Trial Services. If any additional terms and conditions apply to such offers or promotions, these will be set out on the Website or otherwise notified to you via the Services.

4.2           You acknowledge and agree subject to your Subscription of DSYNC Services:

(a)    your access to the Services and any Data via the Website will terminate upon expiry of the Trial Period;

(b)   any Data entered into or otherwise accessed by the Services during the Trial Period may be permanently deleted or otherwise lost unless you otherwise back-up your Data; and

(c)    that DSYNC may at its sole discretion, remove or extend any offers or promotions, and DSYNC will not be responsible or liable for any potential loss or damage which you incur as a result of the removal or extension of any offer or promotions.

5.                  DATA

5.1               The nature of the Services is system integration which includes mapping, transforming and synchronising data between Integrated Third Party Applications. Accordingly, the function of the Services requires the collection, use and disclosure of information including: User Information; information or other data submitted via a User; and information or other data stored in and transmitted between Integrated Third Party Applications and via the Services, (collectively referred to as Data). DSYNC will take reasonable steps and use industry standard procedures to ensure that Data is kept secure and confidential.

5.2               It is your responsibility to maintain copies of all Data which is inputted or otherwise transmitted via the Services. DSYNC will endeavour to prevent loss of Data such as by backing up Data where required. DSYNC does not make any guarantees or warrant that there will be no loss of Data and does not represent or warrant that access to the Services, the Data or an Account will be available without interruption.

5.3               Title to and all Intellectual Property Rights in any Data you input into the Services remain your property. However, your access to the Data and continued use of the Services is contingent on payment of your Subscription Fee for your Subscription.

5.4               You grant DSYNC a limited, non-exclusive, worldwide, royalty-free, revocable licence to any rights including Intellectual Property Rights subsisting in your Data including but not limited to any logos or trade marks in order to use, copy, transmit, reference, disclose, modify or back-up your Data or otherwise for purposes including:

(a)    to enable you and each User to access and use the Data and Services;

(b)   for DSYNC’s administrative, support and training purposes; and

(c)    in accordance with this Agreement or as otherwise required for DSYNC to develop, provide, promote and improve the Services.

5.5               You represent and warrant that:

(a)    any and all Data you submit (or a User submits) via the Services are your sole and exclusive property; or

(b)   you have secured any and all authorisation and rights to transmit and otherwise use: (i) the Data; or (ii) any data between Integrated Third Party Applications, as applicable under the relevant laws or applicable third party terms of service.

5.6               You acknowledge and agree that:

(a)    any modification, transformation, mapping, collation, conversion and analysis of Data performed as part of the Services is likely to be subject to human input and machine errors, omissions, delays and losses including but not limited to any loss of Data. DSYNC is not liable for any such errors, omissions, delays or losses. You acknowledge and agree you are responsible for adopting reasonable measures to limit the impact of such loss or error;

(b)   DSYNC is not responsible for any corruption or loss of any Data if such corruption or loss is due to an act or omission by you, your employee(s), contractor(s), agent(s) or any User; and

(c)    you are responsible for complying with all laws and regulations regarding the use and disclosure of Data including but not limited to the Privacy Act 1988 (Cth), the Spam Act 2003 (Cth) and any other requirements under Australian or corresponding foreign law.

6.              SECURITY

6.1           DSYNC has implemented and will maintain security systems for the transmission of Data consisting of encryption and “firewall” technologies that are understood in the industry to provide adequate security for the transmission of such information over the Internet. These measures are intended to prevent unauthorised Data infiltration or security breaches. DSYNC does not guarantee the security of any Data you store on your servers, or the servers of your contractors, your service providers or User Devices.

7.              AVAILABILITY OF SERVICES

7.1           Although DSYNC intends that access to the Services should be available on a full-time basis, the Services may be unavailable due to maintenance or other development activity from time to time.

7.2           Where possible, DSYNC will provide notice to its Users of any maintenance or development activity in advance via email or via the Services.

8.              SUPPORT

8.1           DSYNC may provide technical support to you and specific End Users subject to the level of your Subscription. If you require technical support, please contact DSYNC using the details at the bottom of this Agreement. DSYNC endeavours to respond to a support request within a reasonable period of time. Software plans are non refundable.

8.2           You acknowledge and agree:

(a)    if the required support is outside the Scope of Services paid by you, support services may incur a support services fee; and

(b)    it is your responsibility to provide support services to Users generally.

9.              PAYMENT

9.1           If you purchase a Subscription, you agree to pay DSYNC the Subscription Fee as required to enable you to access and use the Services.

9.2           You will be required to make payment by way of credit card or other payment methods as set out on the Website. The initial payment of the Subscription Fees will be processed: (a) upon receipt of the request for a Subscription. You must make further payments prior to the expiry of your Subscription on the relevant periodic basis.

9.3           You acknowledge and agree that:

(a)    to maintain your Subscription, payment to DSYNC can be made automatically in advance on a monthly payment date, from your nominated credit card account; and

(b)   where you have allowed DSYNC and its direct debit service provider to automatically direct debit your nominated credit card, if the direct debit service provider is unable to process payment, DSYNC will attempt to contact you via email as soon as DSYNC is aware of the payment failure. Until payment is confirmed, your access to the Services may be suspended until DSYNC receives confirmation of payment.

9.4           If you make payment by way of credit card, you warrant that the information you provide to DSYNC or its payment service provider is true and complete, that you are authorised to use the credit card to make payment and that your payment will be honoured by your card issuer.

9.5           Where you require the use of a purchase order, you are responsible for providing the applicable purchase order at the time of purchase. You acknowledge and agree that to the extent of any inconsistency between this Agreement and any terms and conditions attached to your purchase order, the terms of this Agreement will prevail.

9.6           If payment is not made within 30 days of the last payment date, DSYNC may lock your Account without notice to you, in which case you will not be able to access your Account or use the Services, and any Data on the Account may be deleted and not recoverable.

9.7           Unless otherwise stated, all amounts are stated in Australian dollars and are exclusive of goods and services tax (GST) or other duties, taxes and tariffs as applicable.

9.8           DSYNC’s pricing structure of payment methods may be amended from time to time in its sole discretion.

10.               CANCELLATION

10.1            If you would like to cancel your Subscription, you may do so by notifying DSYNC through your Account via the Services or using the details at the bottom of this Agreement (Cancellation Request). Your access to your Account, Services and any Data and each User’s access to the Services will be terminated at the end of the Subscription Period following your Cancellation Request and you will not be charged any further Subscription Fees to your payment account.

10.2            DSYNC may terminate this Agreement or your Account immediately, in its sole discretion, if:

(a)    you breach any of these Terms;

(b)    DSYNC reasonably suspects you are attempting to reverse engineer the Software that is provided to you; or

(c)     for any other reason outside DSYNC’s control which has the effect of compromising its ability to provide you with the Services within a required timeframe.

10.3            On termination of the Services, DSYNC may retain your Data and related documents (including copies) to the extent required by law or regulation. Your express or implied agreement to this Agreement constitutes your authority for DSYNC to retain or destroy such documents in accordance with such law or regulations.

11.               USER OBLIGATONS

11.1            You represent and warrant that all information including User Information provided to DSYNC is true, accurate and complete.

11.2            You acknowledge and agree that you are responsible for how each User uses the Services and that:

(a)    each User uses the Services at their own risk;

(b)   the Services will only be used for you or the User’s own lawful personal or business purposes, in accordance with this Agreement;

(c)    all usernames, passwords, API keys and/or any other credentials required to access the Services are kept secure and confidential;

(d)   if there is any unauthorised use of an Integrated Third Party Application, your Account or any breach of security, you will immediately notify DSYNC of such activity;

(e)   it is your responsibility for obtaining any consents, licences, permits and permissions from other parties including but not limited to the providers for Integrated Third Party Applications as required for the Services to be provided, at your cost, and for providing DSYNC with the necessary consents, licences and permissions; and

(f)     the reliability of the Services is dependent upon the User’s Device operating system, the service levels of any Integrated Third Party Application, a User’s internet connection and choice of web-browser.

11.3            You acknowledge and agree that:

(a)    each User is authorised to use the Services and to access any Data or other information they input into the Services or provide to DSYNC as required for the Services;

(b)   each User holds all applicable rights or licences as required to use the Services; and

(c)    you will procure each User to keep all usernames, passwords, API keys and/or other credentials required to access the Services secure and confidential.

11.4            DSYNC has no responsibility to any person or entity other than you and nothing in this Agreement confers, or purports to confer, a benefit on any person or entity other than you. If you use the Services on behalf of or for the benefit of any third party, including Users, you agree that:

(a)    you are responsible for ensuring that you have the right to do so;

(b)   DSYNC does not warrant the fitness for purpose or suitability of the Services for such third party’s purposes and third parties may not rely on DSYNC for any purpose;

(c)    you are responsible for authorising any person who is given access to your Data and you agree that DSYNC has no obligation to provide any person or entity with access to such Data without authorisation from you and may refer any requests for access to the Data to you to address; and

(d)   you will indemnify DSYNC, on first demand, against any and all claims, expenses, liabilities or losses arising out of in connection with DSYNC’s refusal to provide any persons with access to your Data in accordance with this Agreement and DSYNC making Data available to any person with authorisation from you.

11.5            You remain solely responsible for complying with all applicable laws. It is your responsibility to ensure that the storage of and access to your Data via the Services and Website comply with laws which are applicable to you, including any laws requiring you to retain records of your Data.

11.6            You must have your own (and to the extent required must ensure each User has their own) safeguards and back up processes in place to recover from any failures or loss of Data which might occur whilst using the Services and protecting the confidentiality of your Data with suitable management procedures, as you may see fit.

12.               PROHIBITED USE

12.1            You acknowledge and agree that the Services are provided “as is” and you and each User will not:

(a)    use the Services in any manner that is illegal or violates any applicable law or regulation;

(b)   attempt to circumvent or disable the Software or any technology features or measures in the Services by any means or in any manner;

(c)    attempt to modify, copy, adapt or reproduce the Services except as necessary to use it for normal operation;

(d)   attempt to decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for the Software;

(e)   distribute, encumber, sell, rent, lease, sub-license, or otherwise transfer, publish or disclose the Services to any third party (except as permitted under this Agreement);

(f)     remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in or on the Services or used in connection with the Services or Website;

(g)    use the Services or Website in any manner to aid in the violation of any third party Intellectual Property Rights, including but not limited to another’s copyrights, trade secrets, and patents;

(h)   take any action that interferes, in any manner, with DSYNC’s rights with respect to the Software;

(i)      attempt to undermine the security or integrity of DSYNC’s computing systems or where the Services are hosted by a third party, that third party’s computing systems and networks;

(j)     use, or misuse, the Services or Website in any way which may impair the functionality of the Services or Website, or other systems used to deliver the Services or impair the ability of any other user to use the Services or Website;

(k)    attempt to gain unauthorised access to any materials other than those to which you have been given express permission to access or to the computer system on which the Services are accessed; and

(l)      transmit, or input into the Services or Website any files or content that defames DSYNC or the Services, may be offensive or inappropriate or material or Data in violation of any law (including any content protected by copyright or trade secrets which you do not have the right to use).

12.2            Title, ownership rights and Intellectual Property Rights in and to any content displayed on the Services or Website, or accessed through the Services or Website, are the property of the applicable content owner and may be protected by applicable copyright or other law. This Agreement gives you no rights to such content.

12.3            You acknowledge that any breach of this clause may lead to termination of this Agreement.

13.               PRIVACY

13.1            DSYNC agrees to comply with the Privacy Act 1988 (Cth) including the Australian Privacy Principles as amended from time to time, any other applicable legislation or privacy guidelines and corresponding foreign law.

14.               INTELLECTUAL PROPERTY

14.1            If you hold a current Subscription, DSYNC grants you a personal non-exclusive, non-transferable, limited and revocable licence (Licence) to use any reports or related materials containing your Data generated from the Services for your personal or non-commercial purposes. All other uses are prohibited unless you obtain DSYNC’s prior written consent.

14.2            Title to, and all Intellectual Property Rights in the Services and Website, and any documentation relating to the Services, remain the property of DSYNC, its successors and permitted assigns. Your right to use such Intellectual Property Rights is subject to the terms of this Agreement.

14.3             Where the User enables third-party applications for use in conjunction with the Services including but not limited to Integrated Third Party Applications, the User acknowledges that DSYNC may allow the providers of those third-party applications to access any inputted data as required for the interoperation of such third-party applications with the Services. DSYNC is not responsible for any disclosure, modification or deletion of data resulting from any such access by Integrated Third Party Applications.

15.               UPDATES AND AVAILABILITY OF SERVICES

15.1            DSYNC will provide you with updates to the Services (Updates) for the duration of this Agreement.

15.2            Although DSYNC intends that access to the Services should be available on a full-time basis, there may be rare occasions where the Services are unavailable due to Updates, maintenance, or other development activity.

15.3            Where possible, DSYNC will endeavour to provide you with notice of any maintenance or development activity in advance via email and the Services.

16.               FEEDBACK AND DISPUTE RESOLUTION

16.1            Your feedback is important to DSYNC. DSYNC seeks to resolve your concerns quickly and effectively. If you have any feedback or questions about the Services, please contact DSYNC using the details at the bottom of this Agreement. SaaS plans are non-refundable and any refunds are at the discretion of DSYNC.

16.2            If there is a dispute between the Parties in relation to this Agreement, the Parties agree to the following dispute resolution procedure:

(a)     The complainant must tell the respondent in writing, the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute.  The Parties agree to meet in good faith to seek to resolve the dispute by agreement between them (Initial Meeting).
(b)     If the Parties cannot agree how to resolve the dispute at the Initial Meeting, any Party may refer the matter to a mediator. If the parties cannot agree on who the mediator should be, the complainant will ask the Law Society of New South Wales to appoint a mediator.  The mediator will decide the time and place for mediation. The Parties must attend the mediation in good faith, to seek to resolve the dispute.
16.3            Any attempts made by the Parties to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of the Parties under this Agreement, by law or in equity.

17.               CONSUMER LAW

17.1            Certain legislation including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth), and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of Services by DSYNC to you which cannot be excluded, restricted or modified (Statutory Rights).

17.2            Nothing in this Agreement removes your Statutory Rights as a consumer under the ACL. You agree that DSYNC’s liability for Services provided to consumers is governed solely by the ACL and this Agreement. DSYNC excludes all conditions and warranties implied by custom, law or statute except for your Statutory Rights.

17.3            Except for your Statutory Rights, all material and work is provided to you without warranties of any kind, either express or implied; and DSYNC expressly disclaims all warranties of any kind including but not limited to implied warranties of merchantability and fitness for a particular purpose.

17.4            If you are a consumer as defined in the ACL, the following applies to you: We guarantee that the services we supply to you are rendered with due care and skill; fit for the purpose that we advertise, or that you have told us you are acquiring the services for or for a result which you have told us you wish the services achieve, unless we consider and disclose that this purpose is not achievable; and will be supplied within a reasonable time. To the extent we are unable to exclude liability; our total liability for loss or damage you suffer or incur from our services is limited to us re-supplying the services to you, or, at our option, us refunding to you the amount you have paid us for the services to which your claim relates.

18.               LIMITATION OF LIABILITY AND DISCLAIMERS

18.1            You acknowledge and agree that whilst DSYNC will take reasonable steps to ensure that the Services will be fit for the advertised purpose, DSYNC gives no guarantees that:

(a)      the Services will meet your requirements as the functionality of the Services is dependent upon configuration of your Device and other components;

(b)     the Services or Website will work in each of your desired use case scenarios; and

(c)      the Services or Website can be executed on every operating system, as it is impossible to test each variant.

18.2            The Services use third party hosting services and rely on the availability of Integrated Third Party Applications. DSYNC cannot ensure and does not warrant the uptime or availability of these third party services or that these third party services are provided free of defect or without interruption.

18.3            DSYNC does not warrant that use of the Services will be uninterrupted or error free. The operation of the Services is dependent on public telephone services, computer networks, the Internet, which can be unpredictable and may from time to time interfere with the use of the Services. DSYNC accepts no responsibility for any such interference or prevention of your use of the Services.

18.4            All risk arising out of the use or performance of the Services remain with you. You understand and agree that the use of the Services, Data or other materials downloaded or otherwise obtained through the use of the Services are at your own discretion and risk and that you will be solely responsible for any infections, contaminations or damage to your computer, system or network. DSYNC is not responsible or liable for delays, inaccuracies, errors or omissions arising out of your use of the Services, any third party software or operating system.

18.5            To the maximum extent permitted by applicable law, DSYNC and its licensors disclaim all warranties, express or implied, including, without limitation, any implied warranties of merchantability, fitness for a particular purpose and non-infringement of third party intellectual property rights or lack of viruses, for the Software. In no event will DSYNC or its licensors be liable for any consequential, incidental, indirect, special, punitive, or other damages whatsoever arising out of this Agreement, the use of or inability to use the Services, even if DSYNC has been advised of the possibility of such damages.

18.6            The Services are not intended for use in the operation of medical instruments, water craft, military installations, warfare equipment, industrial control systems and or SCADA systems and or robotic systems, surgical/medical application or equipment, artificial intelligence application or system, gambling/wagering system, and prototype, experimental or single product items, nuclear facilities, aircraft navigation or communications systems or air traffic control machines or any other machines in which case the failure of the Services could lead to death, personal injury or severe physical or environmental damage. Please contact DSYNC using the details at the bottom of this Agreement if you intend to use the Services for these or any related purposes.

18.7            You acknowledge and agree that DSYNC may pursue any available equitable or other remedy against you as a result of a breach by you or a User of any provision in this Agreement.

18.8            DSYNC or its licensors’ liability for breach of any of its obligations under this Agreement for the Services, or breach of any warranty implied by law, will be limited, to the extent permitted by law, to the total price paid for the Services. DSYNC’s total liability to you for all damages in connection with the Services will not exceed the price paid by you under this Agreement for the Services. The foregoing limitations, exclusions and disclaimers will apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.

18.9            You acknowledge and agree that DSYNC will not be liable for any non-compensatory damages including punitive, aggravated, multiple, exemplary, liquated or any other non-compensatory damages or the consequences of non-payment.

18.10        Nothing in this Agreement is intended to have the effect of contracting out of any applicable provisions of the Competition and Consumer Act 2010 (Cth) and the Australian Consumer Law (including your consumer guarantees) or any corresponding foreign law.

19.               INDEMNITY

19.1           You will be liable for and agree to indemnify, defend and hold DSYNC harmless for and against any and all claims, liabilities, suits, actions and expenses, including costs of litigation and reasonable legal costs, resulting directly or indirectly from:

(a)    any information that is not accurate, up to date or complete or is misleading or a misrepresentation;

(b)   any breach of this Agreement;

(c)    and any misuse of the Services and/or Licence from or by you, your employee(s), contractor(s), agents or a User;

(d)   any breach of law, regulation or licence by you or a User;

(e)   any claim brought by any third party including any User against a Party arising out of the Services or Website;

(f)     any claim by any third party, including a User that:

i.            the grant, or exercise of any licence, of any Intellectual Property rights under this Agreement; or

ii.            the supply or use of the Services or Site,

infringes the Intellectual Property rights or any rights of any person.

19.2           You agree to co-operate with DSYNC (at your own expense) in the handling of disputes, complaints, investigations or litigation that arise as a result of your use of the Services including but not limited to disputes, complaints, investigations or litigation that arises out of or relates to incorrect information you have given us.

19.3           The obligations under this clause will survive termination of this Agreement.

20.               NOTICE

20.1           Any notice required or permitted to be given to you under this Agreement will be addressed you at the email address you provided when completing the Registration Form.

21.               RELATIONSHIP OF PARTIES

21.1           Neither Party is authorised to bind the other Party in any way without prior written consent of the other Party.

21.2           The Parties acknowledge and agree that they will not seek to bind the other Party other than with the prior written consent of the other Party.

22.               RIGHTS OF THIRD PARTIES

22.1            Any person or entity who is not a party to this Agreement including but not limited to any User other than you have no right to benefit under or to enforce any of this Agreement.

23.               ASSIGNMENT

23.1           This Agreement is personal to you. You must not assign or deal with the whole or any part of its rights and/or obligations under this Agreement without the prior written consent of DSYNC.

23.2           Any purported dealing in breach of this clause is of no effect.

24.               WAIVER OR VARIATION OF RIGHTS

24.1           Any failure or delay by a Party in exercising a power or right (either wholly or partially) in relation to this Agreement does not operate as a waiver or prevent that Party from exercising that power or right or any other power or right.

24.2           A Party is not liable to any other Party for any loss, cost or expense that may have been caused or contributed to by the failure, delay, waiver or exercise of a power or right.

25.               POWERS, RIGHTS AND REMEDIES

25.1           Except as expressly stated to the contrary in this Agreement, the powers, rights and/or remedies of a Party under this Agreement are cumulative and are in addition to any other powers, rights and remedies of that Party.  Nothing in this Agreement merges, extinguishes, postpones, lessens or otherwise prejudicially affects any power, right, or remedy that a Party may have at any time against the other Party to this Agreement or any other person.

26.               FORCE MAJEURE

26.1           If performance of this Agreement or any obligation under this Agreement is prevented, restricted, or interfered with by causes beyond either party’s reasonable control (Force Majeure), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event.  The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, orders of acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lock-outs, work stoppages. The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased.  An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.

27.               FURTHER ASSURANCE

27.1           Each Party must from time to time and in a timely manner do all things reasonably required of it by another Party to give effect to this Agreement.

28.               ENFORCEABILITY

28.1            If any provision of this Agreement is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of this Agreement and the remainder of the provisions in question will not be affected.

29.               ENTIRE AGREEMENT AND UNDERSTANDING

29.1            The date of this Agreement is the date that this Agreement is accepted by you.

29.2            In respect of the subject matter of this Agreement:

(a)    this Agreement contains the entire understanding between the Parties; and

(b)   all previous oral and written communications, representations, warranties or commitments are superseded by this Agreement and do not affect the interpretation or meaning of this Agreement.

30.               GOVERNING LAW AND JURISDICTION

30.1           This Agreement is governed by the laws of New South Wales and the Commonwealth of Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales.

31.               DEFINITIONS

Insolvency Event means the occurrence of any of the following events in which a Party:

(a)    is unable to pay its debt as they fall due;

(b)   makes or commences negotiation with a view to making, a general rescheduling of its indebtedness, a general assignment, scheme or arrangement or composition with its creditors;

(c)    takes any corporate action or any steps are taken or legal proceedings are started for:

i.            its winding-up, dissolution, liquidation or re-organisation, other than to reconstruct or amalgamate while solvent on terms approved by the other Party (which approval will not be unreasonably withheld); or

ii.            the appointment of a controller, receiver, administrator, office manager, trustee; or

(d)   seeks protection or is granted protection from its creditors, under any applicable legislation.

Integrated Third Party Application means the application(s) and/or system(s) whether owned by or licensed to you and integrated via the Services.

Intellectual Property Rights includes any and all intellectual and industrial property rights throughout the world, whether subsisting now or in the future and includes all copyright and analogous rights, all rights in relation to inventions (including patent rights), registered and unregistered trademarks, designs (whether or not registered or registrable), circuit layouts, trade names, trade secrets and know-how.

 

For any questions or notice, please contact DSYNC at:

DSYNC Pty Ltd (ABN 92 613 605 575)

L4, 139 Macquarie Street

Sydney NSW 2000

 

Email:  support@dsync.com

 

Last update: 23 August 2016

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