Standard Client Agreement – Terms & Conditions
TRUE VIRTUAL is a Partner Reseller of the VIZ360 product and services. These terms and condition (Terms) apply to all visualisation services that TRUE VIRTUAL provides to or which are accepted by any person (Client). The Client is deemed to have read, understood and accepted these Terms if at any time the Client requests or accepts any Services or pays any deposit or any other monies in relation to Services.
Unless the terms and conditions of the Agreement explicitly state otherwise, expressions used in the Agreement have the following meanings:
Agreement means the legally binding contract arising between the parties under this document.
Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business.
Commencement Date means the date that the Client accepts a Project Scope, pays any deposit or any other monies in relation to a Project or Service or instructs TRUE VIRTUAL to commence providing the Services.
Confidential Information means information that is by its nature confidential, including but not limited to information relating to the: personnel, policies, practices, clientele or business strategies of the parties; Intellectual Property Rights of either party; the terms of the Agreement; but does not include information: already rightfully known to the receiving party at the time of disclosure by the other party; or in the public domain (including information made publicly available via a mechanism in the Services by TRUE VIRTUAL other than as a result of disclosure by a party in breach of its obligations of confidentiality under the Agreement.
Consequential Loss means loss of revenue, loss of profits, loss of anticipated savings or business, pure economic loss, loss of data, loss of value of equipment (other than the cost of repair), loss of opportunity or expectation loss, and any other form of consequential, special, indirect, punitive or exemplary loss or damages.
Consumer Law means the Fair Trading Act (SA) 1987 or similar applicable legislation.
Cost means any costs, expenses, losses, damages, claims, demands, proceedings, and other liability.
Data means any data, content, code, video, images or other materials of any type which the Client uploads, submits or otherwise transmits to or through the Hosted Services.
Fee means any amount payable by the Client to TRUE VIRTUAL (plus GST if applicable) as stipulated in the Project Scope or Hosted Services Order.
Hosted Services means the hosting services provided by TRUE VIRTUAL
Hosted Services Order means the documentation issued by TRUE VIRTUAL to the Client which sets out the fees, term, storage levels and any additional information about the Hosted Services.
Insolvency Event means in respect of a party: the appointment of an administrator, a receiver or receiver and manager in respect of that party; an application to a court or an order for the winding up of the party; or the occurrence of anything analogous or having a substantially similar effect to any of the preceding events.
Intellectual Property Right means all present and future rights conferred by statute, common law or equity in or in relation to business names, circuit layouts, computer software, confidential information, copyright, designs, domain names, formulas, inventions, knowhow, patents, plant varieties, recipes, trade marks, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic field, the benefit of any application to register such a right and the benefit of any renewal or extension of such a right.
Representative includes an employee, agent, officer, director, auditor, advisor, researcher, partner, consultant, contractor, sub-contractor or Related Entity of that person or of a Related Body Corporate of that person.
Personal Information has the meaning given to that term in the Privacy Act 1988 (Cth) .
Partner Agreement means the agreement between TRUE VIRTUAL and a VIZ360 Partner Reseller.
Privacy Law means the Privacy Act 1988 (Cth) and any code registered under the Privacy Act 1988 (Cth).
Project means the provision of services associated with delivering the outcomes set out in the Project Scope.
Project Scope means the material and documentation as prescribed by TRUE VIRTUAL from time to time which sets out the deliverables, features, deadlines, quotes and preliminary designs of the Project.
Services means any services provided or procured by TRUE VIRTUAL in relation to the Hosted Services, Project, and/or the Software or otherwise performed in connection with any request by the Client.
Software means 3D visualisation and imaging software known as “VIZ360”
Standard Reseller Agreement means the agreement between VIZ360 and a Reseller of the VIZ360 services.
Term means the period calculated in accordance with clause 2.
Website means www.truevirtual.com.au
In this Agreement:
(a) headings are for convenience only and do not affect interpretation;
and unless the context indicates a contrary intention:
(b) an obligation or liability assumed by, or a right conferred on, two or more parties binds or benefits all of them jointly and each of them severally;
(c) the expression “person” includes an individual, the estate of an individual, a corporation, an authority, an association or a joint venture (whether incorporated or unincorporated), a partnership and a trust;
(d) a reference to any party includes that party’s executors, administrators, successors and permitted assigns, including any person taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
(e) a reference to any statute or to any statutory provision includes any statutory modification or re-enactment of it or any statutory provision substituted for it, and all ordinances, by-laws, regulations, rules and statutory instruments (however described) issued under it;
(f) words importing the singular include the plural (and vice versa), and words indicating a gender include every other gender;
(g) references to parties, clauses, schedules, exhibits or annexures are references to parties, clauses, schedules, exhibits and annexures to or of this Agreement, and a reference to this Agreement includes any schedule, exhibit or annexure to this Agreement;
(h) where 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;
(i) references to payments to any party to this Agreement include payments to another person upon the direction of such party;
(j) all payments to be made under this Agreement will be made by unendorsed bank cheque or other immediately available funds;
(k) words surrounded by inverted commas are to be interpreted in the way an expert in the relevant field would interpret them;
(l) the word “includes” in any form is not a word of limitation; and
(m) a reference to “$” or “dollar” is to Australian currency.
- Agreement Length
This Agreement commences on the Commencement Date and will continue until terminated in accordance with clause 19 of this Agreement.
2.2 Retrospective Application
If TRUE VIRTUAL began providing the Services before a deposit payment was received, the Agreement will apply retrospectively from the date on which TRUE VIRTUAL first provided the Services.
3.1 New Projects
Where a Project is also subject to a Standard Reseller Agreement or Partner Agreement, the obligations of the Client in this clause 3 may also be completed by the Reseller or Partner (as the case may be).
(a) The Client will submit the Project Scope to TRUE VIRTUA for each proposed Project.
(b) TRUE VIRTUAL may in its absolute discretion either issue a quote to the Client in regard to the Project Scope or reject the Project Scope.
(c) A quote or indication of a price issued by TRUE VIRTUAL is an invitation to treat, not a contractual offer.
(d) Any quote issued by TRUE VIRTUAL is valid for 30 days from the date of issue. If the Client does not accept a quote within 30 days, the quote may be deemed rejected by the Client.
(e) TRUE VIRTUAL reserves the right to cancel or modify a quote at any time before the Client has accepted a quote.
(f) Accepted quotes will be considered a Project following acceptance by the Client in writing or pays any deposit or any other monies in relation to Project.
(g) A Project may only be cancelled in accordance with the terms and conditions of this Agreement or as agreed in writing between the parties.
3.2 Client’s Obligations
(a) The Client must:
(i) provide all information required by TRUE VIRTUAL for the purpose of delivering the Project; and
(ii) cooperate fully with TRUE VIRTUAL to prevent delays in delivering the Project.
(b) The Client warrants that:
(i) all of the information that it provides to TRUE VIRTUAL is accurate and complete in all respects; and
(ii) it will inform TRUE VIRTUAL whenever any such information changes.
3.3 Project Delays
(a) TRUE VIRTUAL will keep the Client informed of any delays and the timeline to remedy these delays.
(b) TRUE VIRTUAL will not be responsible for any delay in delivering the Project if such delay is the result of an act, omission or neglect by the Client.
(c) The Client acknowledges and agrees that in the event of a delay, regardless if caused by TRUE VIRTUAL or the Client:
(i) any time frames, milestones and/or deadlines will be extended by the number of days in which the cause of the delay was current;
(ii) the delay will not be considered a breach of this Agreement and the Client will not be entitled to a refund of any money paid or waiver of any obligation concerning payments.
(iii) if a delay continues for more than two months, TRUE VIRTUAL may cease work on the Project.
3.4 Delivery of the Project
(a) TRUE VIRTUAL will provide an electronic link to the Client to view the Project.
(b) TRUE VIRTUAL reserve the right to publish the Project within one month of providing an electronic link to the Project regardless if the Client requests further changes or modifications in accordance with clause 3.5(a).
3.5 Revisions to the Project
(a) The Client may request changes or modifications to the Project during the Term.
(b) The changes or modifications contemplated by clause 3.5(a) are limited to design adjustments and implementation of feedback of minor nature and magnitude and must not exceed a cumulative total of 10% of the total Fee. Work performed by TRUE VIRTUAL pursuant to this clause 3.5 will be calculated at an approximate rate of $100 per hour.
3.6 Submitted Material
(a) The Client must not submit or cause to be submitted to TRUE VIRTUAL any of the following:
(i) any material that the Client does not own or have the right to use;
(ii) any confidential information of any third party without the express consent of the third party;
(iii) any material that is illegal, unlawful, improper, harmful, threatening, unlawful, defamatory, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, hateful, or otherwise objectionable; or
(iv) any material that infringes the Intellectual Property Right of a third party;
(b) TRUE VIRTUAL reserves the right to cease work on the Project, if its absolute discretion believes that the Client is in breach of any of the conditions of this clause 3.6.
(c) The Client irrevocably grants a non-exclusive, royalty-free license to TRUE VIRTUAL to use any material supplied by the Client in connection with the Project.
(d) Unless clause 3.10 applies, clause 3.6(c) survives termination of this Agreement.
3.7 Hosting the Project
(a) The Client acknowledges and agrees that TRUE VIRTUAL will have the exclusive right to host the Project on a server of its choosing.
(b) TRUE VIRTUAL reserves the right to change the server at any time in its sole discretion.
3.8 Viewing the Project
The Client will have the ability to view the Project:
(a) directly on the VIZ360 Website;
(b) in a file downloaded through an electronic link provided by TRUE VIRTUAL; or
(c) another method as made available by TRUE VIRTUAL from time to time.
3.9 Publishing the Project
The Client agrees and acknowledges that TRUE VIRTUAL may publish, use or share the Project:
(a) on its Website;
(b) on a third-party website; or
(c) through an embedded link on a third-party website;
making the Project available for viewing by the general public.
3.10 Removal of the Project
(a) Following the completion of the Project, the Client may request TRUE VIRTUAL in writing to remove the Project from the Software.
(b) TRUE VIRTUAL will remove the Project from the Software within 30 days after receiving a request in accordance in clause 3.10(a).
(c) The Client acknowledges and agrees that if the Project is removed from the Software, the Project will no longer be recoverable and the Client must export any data it requires prior to issuing a request pursuant to clause 3.10(a).
3.11 Project not for Reselling
(a) The Client must not:
(i) engage TRUE VIRTUAL with the purpose of reselling the Project to a third party.
(ii) without the prior written consent of TRUE VIRTUAL sell or otherwise transfer the Project whether for monetary compensation or not to a third party.
(b) If the Client wishes to resell Projects, the Client must enter into the VIZ360 Partner Agreement.
- Hosted Services
4.1 Provision of Hosted Services
TRUE VIRTUAL agrees to provide the Hosted Services in accordance with the Hosted Services Order.
TRUE VIRTUAL grants the Client a non-transferable, non-exclusive and revocable licence to access and use the Hosted Services subject to the terms of this Agreement.
4.3 Storage Limits
(a) There may be storage limits associated with the Hosted Services. These limits are described in the Hosted Services Order.
(b) TRUE VIRTUAL reserves the right to charge for additional storage or excessive usage fees at rates specified by TRUE VIRTUAL from time to time.
(c) TRUE VIRTUAL, in its absolute discretion, may add new or modify existing storage limits for the Hosted Services at any time.
5.1 Software Licence
TRUE VIRTUAL grants to the Client a non-transferrable, non-exclusive and revocable licence to use the Software, subject to the terms of the Agreement.
- The Services
6.1 Provision of Services
(a) TRUE VIRTUAL agrees to perform the Services in accordance with this Agreement.
(b) TRUE VIRTUAL will perform the Services to that standard of care and skill to be expected of a person who regularly acts in the capacity in which TRUE VIRTUAL is engaged and who possesses the knowledge, skill and experience of a person qualified to act in that capacity.
(c) The Client must provide all information required by TRUE VIRTUAL for the purpose of providing the Services.
6.2 Delivery of Support and Maintenance
TRUE VIRTUAL will provide support and maintenance services in respect of the Services via email and telephone only, during the hours 8.00am to 5.00pm Australian Central Time on Business Days.
6.3 Services not Available Locally
The Client agrees and accepts that the Hosted Services and Software is hosted by TRUE VIRTUAL (or a third party engaged by TRUE VIRTUAL) and will only be accessible using the Internet (or other connection to TRUE VIRTUAL or a third-party’s servers), and will not be available ‘locally’ from the Client’s own servers or computer systems, unless requested by the Client and agreed in writing by (at TRUE VIRTUAL absolute discretion) and the cost of the Client (if any).
6.4 Parts of TRUE VIRTUAL Controlled by Third Parties
The Client agrees and accepts that TRUE VIRTUAL is or may be from time to time operated from servers owned and controlled by a third party. As such, the Client acknowledges that certain functions are out of TRUE VIRTUAL control, including databases and application infrastructure, and TRUE VIRTUAL is not responsible for any event or action caused by any third party contemplated in this clause 6.4
6.5 VIZ360 in Beta
The Client acknowledges and agrees that parts of the Hosted Services and/or Software may be released by TRUE VIRTUAL in a beta testing version, and that in such case, the Client should use the Hosted Services and/or Software with that standard of stability in mind.
6.6 Maintenance, Updates, Changes, Inaccessibility and Errors
(a) TRUE VIRTUAL reserve the right, with at least 5 Business Days’ notice, to make some or all of the Hosted Services and/or Software inaccessible from time to time as is required for updates, maintenance and/or upgrades. Notification may be done by email or by posting a notice on the Website.
(b) From time to time, without notice, access to all or part of the Hosted Services and/or Software may be disrupted or limited. During such an interruption, TRUE VIRTUAL will use its reasonable endeavours to restore access to the Hosted Services and/or Software as soon as practicable.
(c) TRUE VIRTUAL reserve the right to correct any errors on the Hosted Services and/or Software, upgrade, maintain, tune, backup, amend, add to or remove features from, redesign, improve or otherwise alter the Hosted Services and/or Software at TRUE VIRTUAL sole and absolute discretion.
(d) The Client acknowledges and agrees that TRUE VIRTUAL will not be liable for any loss or damage that the Client or any other person incur by any changes made to the Hosted Services and/or Software and/or the Client not being able to access the Software or any part of it.
6.7 Third Party Content
The inclusion of any third party link does not imply any endorsement or recommendation of a linked website by TRUE VIRTUAL. TRUE VIRTUAL will not be responsible for any third party advertising content displayed on the Software. Any link on the Software to a third party website, or decision to accept any third party offer, is entirely at the Client’s own risk.
6.8 Additional Work
(a) If the Client requires support and maintenance that is deemed in TRUE VIRTUAL absolute discretion to be out of scope of the Services, TRUE VIRTUAL may charge the Client an additional fee as determined in the sole discretion of TRUE VIRTUAL.
(b) If TRUE VIRTUAL reasonably determines that the requirement for any work outside the scope of the Service is caused by the fault or error of TRUE VIRTUAL, the Client shall not pay for that additional work.
7.1 Invoices and Payment
(a) TRUE VIRTUAL will invoice the Client for the Fee and the Client must pay the invoice by the due date stated on the invoice. Should the Client not pay TRUE VIRTUAL any invoices within their terms the Client shall be liable for any legal or debt collection costs incurred by TRUE VIRTUAL in seeking to recover any unpaid invoice.
(b) If the client or TRUE VIRTUAL decides to cancel the project at any time after a deposit payment has been received, TRUE VIRTUAL will invoice only for works that has been completed to date including any administration and processing fees.
(c) TRUE VIRTUAL reserves the right to withhold fees for administration and processing in cases when a refund is granted to cover all costs incurred by TRUE VIRTUAL for works completed.
7.2 A New Tax System (Goods and Services Tax) Act 1999 Wording
Words defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning in this Agreement
(a) TRUE VIRTUAL may but is not obligated to create an account on the Client’s behalf to facilitate the provision of support and/or communication with the Client.
(b) The Client will take reasonable steps to ensure that its account is secure from unauthorised access.
(c) The Client is solely responsible for:
(i) keeping any usernames and passwords associated with its account for the Hosted Services and/or Software secure;
(ii) the use of its account, irrespective of who is using it, even if it is used without the Client’s permission; and
(iii) immediately notifying TRUE VIRTUAL if the Client becomes aware of any actual or suspected compromise or breach of security in relation to the Client’s account credentials.
(d) If TRUE VIRTUAL become aware of any suspicious or unauthorised activity or access on the Client’s account, TRUE VIRTUAL MEDIA may:
(i) suspend access to the Client’s account; or
(ii) require the Client to change its account password.
(e) TRUE VIRTUAL reserves the right to immediately limit or suspend the Client’s access to the Hosted Services and/or Software if the Client breaches any of its obligations or undertakings in this Agreement.
- Advertising and Promotion
9.1 TRUE VIRTUAL to Approve
(a) If the Client proposes to publish any aspect of the Project other than in a layout and format previously prescribed or approved by TRUE VIRTUAL, the Client must first obtain TRUE VIRTUAL’s written approval before it is published, displayed or broadcast.
(b) If the Client publishes, displays, broadcasts or does any other thing that causes the Project to be available for viewing by the general public, it must, using the prescribed or approved format by TRUE VIRTUAL include the statement “Powered by VIZ360” in a clearly visible location and correctly attribute the Project to VIZ360.
(c) For the avoidance of doubt, failure to comply with clause 9.1(b) is considered a material breach of this Agreement and TRUE VIRTUAL may terminate this Agreement immediately in its absolute discretion.
- The Client ‘s Undertakings
(a) The Client undertakes:
(i) to use the Hosted Services, Project and/or the Software only as it was designed to be used;
(ii)it has obtained all consents, approvals, licenses, and permissions necessary to use any submitted material or documents.
(iii) not to use the Hosted Services and/or Software in any way which could be reasonably expected to interfere with or damage TRUE VIRTUAL network, any other operator’s network, or another client or user’s enjoyment of the Software;
(iv) not to use the Hosted Services and/or Software for unsolicited or unreasonably frequent or voluminous communications having regard to the nature and requirements of the Client’s business;
(v) not to publish or otherwise communicate any review of, or information about, the Hosted Services and/or Services (which is not publicly available) to any third party without the prior written consent of TRUE VIRTUAL, except as specifically provided for in an agreement with TRUE VIRTUAL;
(vi) not to intentionally disable or circumvent any protection or disabling mechanism related to the Hosted Services and/or Software;
(vii) not to install or store any software applications, code or scripts on or through the Hosted Services and/or Software unless it first obtains the written permission of TRUE VIRTUAL;
(viii) not to use the Hosted Services and/or Software to bully, harass, degrade, insult or otherwise demean any person (as determined by TRUE VIRTUAL) or to partake in offensive or indecent conduct; and
(ix) not to store, access or operate any data, code or software on, or in connection with, the Software that could be categorised or identified as:
(A) a computer virus or malicious code; or
(B) pornographic material
(x) not to submit any material that could be categorised or identified as:
(A) pornographic material; or
(B) offensive or indecent.
(b) The Client will be responsible for the breach of any undertaking or warranty in this clause 10.1 regardless of whether that breach is caused by a third party submitting material or a security breach of any kind and indemnifies TRUE VIRTUAL from all claims or demands as a result of a breach of clause 10.1 of this Agreement by the Client.
- TRUE VIRTUAL Rights
11.1 TRUE VIRTUAL Right to Monitor
TRUE VIRTUAL has the right, but not the obligation, to verify and/or monitor all conduct on, and content submitted to TRUE VIRTUAL, including the contents of the Project Scope.
11.2 TRUE VIRTUAL Right to Suspend
TRUE VIRTUAL reserves the right to limit or suspend the Client’s access to the Hosted Services and/or Software if the Client breaches any of its obligations or undertakings in the Agreement.
The Client acknowledges and agrees that TRUE VIRTUAL may subcontract any of its obligations of this Agreement to a third party (or multiple third parties) without notification to or consent from the Client.
13.2 No Privacy Warranty
TRUE VIRTUAL makes no warranty as to whether the Service will comply with the Client’s obligations under Privacy Law and/or equivalent law. It is the Client’s responsibility to determine whether the Service is appropriate for the Client’s circumstances.
13.3 Changes in Response to Privacy Law
TRUE VIRTUAL may make any changes whether it be to the Project or the Software that it considers, at its sole and absolute discretion, to be beneficial for compliance with:
(a) Privacy Law; or
(b) any guidance issued by the appropriate governing entity in Australia, and will notify the Client of any such change.
- Intellectual Property
14.1 TRUE VIRTUAL Intellectual Property Rights
(a) All title, ownership rights and Intellectual Property Rights, including copyright in relation to the Hosted Services, Project and Software is owned or used under licence by TRUE VIRTUAL
(b) Without TRUE VIRTUAL ‘S express prior written consent, the Client undertakes that it will not and will not permit any person to:
(i) directly or indirectly alter, replicate, copy, recreate, create derivative work from, decompile, reverse engineer, reserve assemble, reserve compile, enhance, interfered with or with part of the Project and/or the Software or otherwise obtain, modify or use any source or object code, architecture, or algorithms contained in the Hosted Services and/or Software or any documentation associated with the Hosted Services, Project and/or the Software;
(ii)interact with any TRUE VIRTUAL trademark (whether registered or not) that could cause any adverse effect to TRUE VIRTUAL ownership and/or rights to the intellectual property; or
(iii) copy or reproduce, or create an adaptation or translation of, all or part of the Hosted Services and/or Software in any way, except to the extent that reproduction occurs automatically through the ordinary use of the Hosted Services and/or Software in accordance with this Agreement;
(iv) incorporate all or part of the Project and/or the Hosted Services and/or Software in any other webpage, site, application or other digital or non-digital format;
(v) (subject to other rights explicitly granted under this Agreement) sell, license, sublicense, lease, rent, distribute, disclose, permit access to, or transfer to any third party, whether for profit or without charge, any portion of the Hosted Services and/or Software on any medium;
(vi) do anything that will infringe the Intellectual Property Rights of any third party; or
(vii) attempt to do any of the above.
14.2 Client’s Intellectual Property Rights
Except when the Data is a Project created pursuant to this Agreement, these terms do not create any assignment or transfer of title in and to the Intellectual Property Rights subsisting in any Data submitted by the Client to or through the Hosted Services in favour of TRUE VIRTUAL.
14.3 Survival of Obligation
The operation of this clause survives the termination of this Agreement.
15.1 Threats and action
If the Client becomes aware of any infringement or threatened infringement of any of the Hosted Services, Project and/or the Software or any Intellectual Property Rights, the Client must give notice pursuant to clause 23.1 to TRUE VIRTUAL including full particulars of the infringement. TRUE VIRTUAL may, in its absolute discretion, institute and prosecute an action against the infringer.
15.2 Provide all assistance
The Client and TRUE VIRTUAL must each execute all documents and do all things reasonably necessary to aid and co-operate in the prosecution of any actions brought by the other under this clause.
16.1 Exclusion of express warranties
Subject to the obligations of TRUE VIRTUAL in respect of the provision of the Hosted Services and/or Software under this Agreement, TRUE VIRTUAL makes no warranties or guarantees:
(a) that the Hosted Services and/or Software will be accessible at all times, uninterrupted or error-free;
(b) that any of the Hosted Services and/or Software is without bugs or viruses;
(c) that any of the technical information is without error or inaccuracy;
(d) that the Hosted Services and/or Software is immune to unauthorised access or security breach; and
(e) in respect of the retention of, or continued accessibility of, any data.
(a) The Client acknowledges and agrees that
(i) the Client’s use of the Hosted Services and/or Software is at its own risk;
(ii) TRUE VIRTUAL is not responsible for the conduct or activities of any other user of the Hosted Services and/or Software; and
(iii) the Client is acquiring the Services and otherwise entering into and acquiring goods or services under this Agreement for commercial purposes and not for domestic, personal or household use.
(b) If the Client is a consumer within the meaning of the Consumer Law, there are certain rights (such as the consumer guarantees implied by the Consumer Law, which cannot by law be excluded (Non-Excludable Condition). This clause is subject to those Non-Excludable Conditions.
(c) Subject to the application of any applicable Non-Excludable Condition and to the maximum extent permitted by law, TRUE VIRTUAL:
(i) excludes from this Agreement all guarantees, conditions and warranties that might but for this clause be implied into this Agreement;
(ii) excludes all liability to the Client for any Costs, expenses, losses and damages suffered or incurred directly or indirectly by the Client in connection with this Agreement, including using the Services, whether that liability arises in contract, tort or under statute; and
(iii) will not, under any circumstances, be liable to the Client for any Consequential Loss.
(d) If liability under this Agreement cannot be lawfully excluded, to the maximum extent permitted by law, TRUE VIRTUAL liability for breach of any Non-Excludable Condition is limited:
(i) in the case of goods, to (at TRUE VIRTUAL option) the replacement of the goods or the supply of equivalent goods; the repair of the goods; the payment of the cost of replacing the goods or of acquiring equivalent goods; or the payment of the cost of having the goods repaired;
(ii)in the case of services, to (at TRUE VIRTUAL option) the supplying of the services again; or the payment of the cost of having the services supplied again.
18.1 General indemnity
The Client indemnifies TRUE VIRTUAL against all costs suffered or incurred by TRUE VIRTUAL, however caused, arising wholly or partially, directly or indirectly, in connection with this Agreement.
Without limiting the indemnities provided in clause 18.1 the Client indemnifies and will keep TRUE VIRTUAL and its Representatives indemnified against all liability arising from claims for:
(a) libel, slander, defamation, product disparagement or indecent, false, misleading or deceptive conduct;
(b) infringement of Intellectual Property Rights;
(c) piracy, counterfeiting, plagiarism, unfair competition or idea misappropriation;
(d) breach of any provision of the Privacy Act and/or equivalent privacy laws;
(e) any incorrect, fraudulent or false information provided by the Client; and
(f) any breach of the provisions of this clause 18;
18.3 Conditions of Indemnity
(a) TRUE VIRTUAL may make a claim under and indemnity provided in this Agreement in relation to a Cost before having incurred the Cost, or before making a payment in relation to the Cost.
(b) The indemnities in this Agreement shall be in addition to any damages for breach of contract to which TRUE VIRTUAL may be entitled. Nothing in the indemnities in this Agreement will be construed so as to prevent TRUE VIRTUAL from claiming damages in relation to a breach by the Client of any term of this Agreement.
(c) Each indemnity in this Agreement is a continuing obligation, separate and independent from the other obligations of the parties and survives termination of this Agreement for whatever reason.
19.1 Expiry of this Agreement
This Agreement will end when:
(a) TRUE VIRTUAL has completed the Project; or
(b) in the case of Hosted Services, at the end of the term specified in the Hosted Services Order; or
(c) unless otherwise agreed in writing by the parties.
19.2 Immediate Termination by TRUE VIRTUAL for Default
TRUE VIRTUAL may terminate this Agreement immediately by notice to the Client if the Client breaches this Agreement.
19.3 Immediate Termination by TRUE VIRTUAL for Insolvency Event
TRUE VIRTUAL may terminate this Agreement immediately by notice to the Client if the Client:
(a) is in liquidation or provisional liquidation or under administration;
(b) has a controller as defined in the Corporations Act 2001 or an analogous person appointed to it or to any of its property;
(c) is taken under section 459 of the Corporations Act 2001 to have failed to comply with a statutory demand;
(d) is unable to pay its debts or is insolvent;
(e) dies, ceases to be of full legal capacity or becomes incapable of managing its own affairs for any reason;
(f) takes any step that could result in the Client becoming an insolvent under administration as defined in section 95(A) (2) the Corporations Act 2001;
(g) enters into a compromise or arrangement with, or assignment for the benefit of, any of its members or creditors; or is affected by any analogous event.
- Effects of Termination
20.1 Termination not to affect obligation to pay
Termination of this Agreement shall not affect the Client’s obligation to pay any outstanding amounts owed to TRUE VIRTUAL.
- Dispute Resolution
(a) This clause does not apply where there is a dispute concerning a payment or any amount owing by the Client to TRUE VIRTUAL.
(b) Subject to clause 21(f) any dispute which arises between the parties in connection with this agreement (dispute) must be dealt with in accordance with the requirements of this clause 21, before either party will be entitled to commence proceedings against the other party in respect of the dispute.
(c) The party claiming that a dispute has arisen (complainant) must give the other party a written notice setting out a detailed explanation of the nature of the dispute; and what action the complainant thinks will resolve the dispute (dispute notice).
(d) Within 10 business days of the dispute notice being received by the other party, a nominated senior executive of each party must meet, act in good faith and use best endeavours to resolve the dispute at that meeting, or such subsequent meetings as may be reasonably required.
(e) If the dispute is not resolved pursuant to clause 21(d) within 30 days of the dispute notice being received by the other party, the parties agree to attend a privately held mediation with a mediator suitably accredited under the national mediator accreditation system (NMAS) appointed by agreement by both parties and in the absence of agreement within 7 days of disagreement by such mediator as appointed by the President, or person in like office of the Law Society of South Australia.
(f) If the dispute is not resolved within a further 30 days pursuant to clause 21(e) then either party may commence proceedings against the other party in respect of the dispute.
(g) Nothing in this clause 21 prevents a party from seeking urgent injunctive or similar relief from a court.
(a) A party will not, without the prior written approval of the other party, disclose the other party’s Confidential Information.
(b) A party will not be in breach of this confidentiality clause in circumstances where it is legally compelled to disclose the other party’s Confidential Information.
(c) Notwithstanding any other provision of this clause, a party may disclose the terms of the Agreement (other than Confidential Information of a technical nature) to its related companies, solicitors, auditors, insurers and accountants.
(d) Each party will take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of the Agreement, do not make public or disclose the other party’s Confidential Information.
22.2 Breach notifications
A party must notify the disclosing party in writing, giving full details known to it immediately, when it becomes aware of any actual, suspected, likely or threatened: breach by any person of any obligation in relation to the Confidential Information; or theft, loss, damage, or unauthorised access, use or disclosure of or to any Confidential Information.
The obligations under this clause 22 survive termination of the Agreement.
(a) A notice under this Agreement must be given by email and is deemed to be received when the email is capable of being retrieved by the addressee at an email address designated by the addressee.
(b) TRUE VIRTUAL designated email address is firstname.lastname@example.org, or any other designated email address notified to the Client from time to time.
(c) The Client’s designated email address is the email address as set out in the Project Scope. The Client may change the designated email address at any time by notifying TRUE VIRTUAL 23.2 Assignment
(a) The Client may only assign, encumber, declare a trust over or otherwise create an interest in its rights under this document with the consent of TRUE VIRTUAL.
(b) TRUE VIRTUAL may assign, encumber, declare a trust over or otherwise create an interest in its rights under this document without the consent of the Client, and may disclose to any potential holder of the right or interest any information relating to this document or any party to it.
23.3 Unforeseen Event
A party is not responsible for any loss arising out of any occurrences or condition beyond its control (other than an obligation to pay money), including but not limited to acts of war (whether declared or not) or terrorism, the mobilisation of armed forces, civil commotion or riot, natural disaster, industrial action or labour disturbance, currency restriction, embargo, action or inaction by a government, a failure of a supplier, public utility or common carrier or computer disruption due to the effects of a computer virus, trojan, malware or other malicious code.
23.4 Liability for expenses
Each party must pay its own expenses incurred in negotiating, executing, stamping and registering this document.
23.5 Giving effect to this document
Each party must do anything (including execute any document), and must ensure that its Representatives do anything (including execute any document), that the other party may reasonably require to give full effect to this document.
23.6 Waiver of rights
A right may only be waived in writing, signed by the party giving the waiver, and:
(a) no other conduct of a party (including a failure to exercise, or delay in exercising, the right) operates as a waiver of the right or otherwise prevents the exercise of the right;
(b) a waiver of a right on one or more occasions does not operate as a waiver of that right if it arises again; and
(c) the exercise of a right does not prevent any further exercise of that right or of any other right.
Nothing in this Agreement is intended to create or be construed as creating a relationship of agency, joint venture or partnership between any of the parties. Unless expressly stated in this Agreement, no party may act as agent of or in any way bind another Party to any Obligation.
23.8 Operation of this document
(a) This document contains the entire agreement between the parties about its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this document and has no further effect.
(b) Any right that a person may have under this document is in addition to, and does not replace or limit, any other right that the person may have.
(c) Any provision of this document which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make this document enforceable, unless this would materially change the intended effect of this document.
Where this Agreement states that the consent or approval of TRUE VIRTUAL is required, TRUE VIRTUAL may: give or withhold that consent or approval in its absolute discretion; and give that consent or approval subject to conditions, unless this Agreement expressly states otherwise.
23.10 Liability of Parties
If a party consists of more than one person: an obligation of that party is a joint obligation of all of those persons and a several obligation of each of them; a right given to that party is a right given jointly and severally to each of those persons, and if exercised by one of them, is deemed to be exercised jointly; and a representation, warranty or undertaking made by that party is made by each of those persons.
23.11 Inconsistency with other documents
If this document is inconsistent with any other document or agreement between the parties, this document prevails to the extent of the inconsistency.
Neither party has entered into any contract under this Agreement in reliance on or as a result of any representation, promise, statement, conduct or inducement by the other otherwise than as set out in this Agreement.
23.13 Time is of the essence
Time is of the essence in this Agreement.
This Agreement may be agreed to in any number of counterparts including where they are exchanged by email containing this Agreement as an unalterable attachment. All counterparts together will be taken to constitute one instrument.
23.15 Governing law
The laws of Australia govern this Agreement. The parties submit to the non‑exclusive jurisdiction of courts exercising jurisdiction there.
23.16 Independent Legal Advice
The Client acknowledges that TRUE VIRTUAL has recommended that the Client seek independent legal and other appropriate professional advice in respect of this Agreement.