GO365 (CAN 154 899 135) is in the business of providing customers with virtual servers, virtual data centres and a range of storage, private, hybrid and public cloud hosting solutions. The Customer (defined in Schedule 1) wishes to engage GO365 to provide the Services (described below) and agrees to the following Terms and Conditions contained in this Cloud Services and Hosting Agreement (Agreement). Acceptance of these terms and conditions includes accepting the Microsoft Customer Agreement (MCuA) which is found at https://www.microsoft.com/licensing/docs/customeragreement
These Terms and Conditions may be varied by GO365 at any time at its discretion. Where these Terms and Conditions are modified, GO365 will notify the Customer by email or by posting a notification on its website (https://go365.com.au) and any changes will be effective immediately upon notice or upon such other time as the Customer is notified by GO365. By accessing and continuing to use any of the Services the Customer agrees that the Customer has read and understood these Terms and Conditions and any modifications to the Terms and Conditions as and when they occur.
In this Agreement, certain words with the first letter in capitals have a particular meaning. The meaning of these defined terms can be found where the words appear in a bold, italic font.
Terms and words stated in the singular shall be deemed of the same importance and having the same definition as such terms and words stated in plural.
Account means the Customer’s account with GO365, which enables the Customer to access the Services under this Agreement;
Account Details means the Customer ID, User ID, Password and any other details allocated by GO365 to the Customer in relation to the Customer’s Account;
Additional Agreements means any other agreement that the Customer may be required to enter into in order to access any of the Services, including any end user license agreements with respect to Third Party Software);
Agreement means this Cloud Services and Hosting Agreement;
Authorised User means the Customer, its employees, contractors or other personnel who are authorised by the Customer to access and use the Services using the Customer’s Account;
Business Day means a weekday on which trading banks (as defined in the Banking Act 1959 (Cth)) are open in Perth, Western Australia;
Commencement Date means the date set out at Item 2 of Schedule 1;
Confidential Information means any confidential or commercially sensitive or valuable information, including:
- all information treated as confidential whether marked as “Confidential” or not;
- trade secrets, confidential know how, operations manuals, price lists, customer lists, customer information, operational methods, operational procedures, advertising, technical and financial information, except information:
- created independently of either Party; or
- that is public knowledge (otherwise than as a result of a disclosure in breach of this Agreement);Customer means the Party described at Item 1 of Schedule 1;Customer Data is described in clause 5.1;Customer Site(s) means the Customer’s premises where a GO Managed Server may be located;Data Centre is set out at Item 3 of Schedule 1;Data Storage Capacity means the data storage capacity assigned to the Customer’s Account as selected by Customer at the time of completing the Registration Process, or as subsequently modified by the Parties’ mutual agreement and amended and documented in Schedule 2;Disaster Recovery Site means GO365’s second mirror site for the purpose of back-up and disaster recovery;Documentation means any manuals, user guides and other documents provided by GO365 to the Customer in relation to the Services and any Software supplied under this Agreement;Electronic Asset(s) means electronic property that the Customer owns, such as custom or non-GO365 provisioned or supplied software;Fees and Charges means all Fees and Charges payable under this Agreement set out in Schedule 2;
GO Managed Server means the hardware, equipment and physical or virtual servers belonging to GO365, including the server located at the Data Centre(s) and Customer Site(s) and any and all virtual servers used to store Customer Data;
Intellectual Property includes without limitation:
- copyright (including future copyright) throughout the world in all literary works, artistic works, computer software, and any other works or subject matter in which copyright subsists and may in the future subsist;
- confidential information and trade secrets; and
- trade and service marks (whether registered or unregistered);Intellectual Property Rights or IPR means such rights as may subsist in the Intellectual Property;Interest Rate is the per annum percentage rate, calculated and compounded daily, used to calculate the interest and is the rate listed at Item 5 of Schedule 1;Media means any CD, tape, USB stick, disk or other electronic media required for the installation of the Software;Minimum Technical Specifications means the minimum computer, operating system, web browser and any other technical requirements for using the Services as published or notified to the Customer by GO365 from time to time;Password is the unique system generated log-in password either given to the Customer by GO365 or specified by the Customer to access the Services or as changed by the Customer;Period is specified in Schedule 1;
Registration Procedure is described in clause 2;
Services means the Services provided by GO365 to the Customer under this Agreement as set out in Schedule 2;
SLA or Service Level Agreement is a separate agreement for the provision of support services which are ancillary to the Customer’s use and access to the Services;
Software means the software provided by GO365 to the Customer specified in Schedule 2 and as modified by GO365 from time to time;
Term means the term of this Agreement as described in clause 10;
Third Party Developer means the owner of the Third Party Software or any party which has represented to GO365 that it has the rights to grant the licenses and sub-licenses to the Third Party Software as contemplated under this Agreement;
Third Party Software means the Third Party Software listed in Schedule 2;
User ID is the unique system generated log-in name either given to the Customer by us or specified by the Customer to access the Services or as changed by the Customer;
Virtual Data Centre means a data centre in virtual existence, that being, providing the quality of a physical data centre without requiring a physical data centre;
Virtual Server means a virtual machine environment where a single server machine is partitioned into multiple servers within a physical single server by employing software based virtual machines;
Website means the GO365 website at: https://www.go365.com.au/
2. REGISTRATION PROCEDURE & CUSTOMER ACCOUNT
2.1 Subject to the execution of this Agreement, the Customer will be granted access to the Services upon completing the Registration Procedure for the Term and in accordance with the Terms and Conditions of this Agreement.
2.2 Registration Procedure
The Customer will be deemed to have completed the registration procedure by duly executing and returning a copy of this Agreement to GO365 and providing any and all information reasonably requested by GO365 in setting up the Customer’s Account (Registration Procedure).
2.3 When completing the Registration Procedure, the Customer warrants to GO365 that it will provide accurate and correct information about the Company and its Authorised Users and agrees to update its information as and when it changes to ensure that GO365’s records and database remains current and accurate.
2.4 Where the Customer provides any false or incorrect information in relation to its Account (including any false or out-dated information in relation to its name, contact number or email address), GO365 reserves all rights to refuse access to, suspend or terminate the Account and the Services.
2.5 Account Access
Upon completing the Registration Procedure, the Customer may access the Services by logging in to its Account with its allocated Account Details which will be allocated to the Customer by GO365 shortly after the Customer has completed the Registration Procedure and the Customer will be notified by email or telephone call as to when the account is active.
2.6 The Customer must ensure that it does not disclose its Account Details to anyone other than its Authorised Users, representatives or agents.
2.7 While GO365 uses reasonable commercial endeavours to maintain the privacy and secrecy of all user IDs and Passwords, the Customer acknowledges and accepts that:
- it is the Customer’s sole responsibility to ensure that there is no unauthorised access to its Account or the Service;
- GO365 is not responsible for any loss or damage caused to the Customer as a result of unauthorised access to its Account.
Where the Customer suspects any unauthorised use of its Account, the Customer should notify GO365 immediately.
3. CUSTOMER’S OBLIGATIONS
3.1 In consideration for the Services provided by GO365, the Customer agrees to pay all Fees and Charges in full and without deduction as and when they become due under this Agreement.
3.2 The Customer agrees that it bears sole responsibility for providing and maintaining any computer systems, networks, telecommunications systems, Internet access, third party services or any other materials or conditions required in order to meet the Minimum Technical Requirements specified by GO365 in order to operate the Software or use the Services as disclosed in the Documentation.
3.3 The Customer agrees that in accessing and using the Services, the Customer:
- and its Authorised Users will comply with any and all laws and regulations relevant to the use of the Services;
- and its Authorised Users will not use the Services in a way which compromises the functionality or use of the Services as described in clause 5.4;
- and its Authorised Users will not operate any services on GO Managed Servers that would in any way brings GO365’s reputation into disrepute;
- and its Authorised Users will not use the Software for any purpose other than as permitted under this Agreement or for any illegal purposes; and
- has or will provide full and accurate registration information at the time of completing the Registration Procedure.
3.4 The Customer acknowledges and agrees that it shall be responsible for all acts and omissions of Authorised Users, and any act or omission by an Authorised User, which, if undertaken by the Customer, would constitute a breach of this Agreement, shall be deemed a breach of this Agreement by the Customer. The Customer shall undertake reasonable efforts to make all Authorised Users aware of the provisions of this Agreement as applicable to such Authorised Users’ use and access to the Services and Software, and shall use its best efforts to cause Authorised Users to comply with such provisions.
4. SOFTWARE AS A SERVICE (SaaS)
4.1 From the Commencement Date, GO365 will:
- use reasonable commercial endeavours to provide the Customer with access to the Software through Internet connection to the GO Managed Server(s) through the Customer’s Account twenty-four (24) hours a day, seven (7) days a week; and
- grant the Customer a non-exclusive, non-transferable, non-sub-licensable license to:
- use and install, up to the number of Permitted Users/Permitted Sites (as applicable) specified in Schedule 2, copies of the Software for the Term onto computer server(s) owned, operated and under the supervision and control of the Customer and hosted by GO365 on a GO Managed Server. The Customer may only access the Software as hosted on a GO Managed Server and must not install the Software (or any part thereof) on any privately owned Customer equipment; and
- permit its Authorised Users to use the Software in accordance with this Agreement, Additional Agreements and any Documentation, solely to manage the Customer Data and for purposes of conducting its business activities, within Australia, throughout the Term of this Agreement.
4.2 Within a reasonable time period following the Registration Procedure, GO365 will, on a date agreed by the Parties, provide the Customer with any Media required to install, run and operate the Software and reasonable assistance to install the Software onto the Customer’s computing system. GO365 may require that the Customer pay an additional charge for any installation services, calculated in accordance with GO365’s standard hourly rates and charges.
4.3 Third Party Software
The Customer acknowledges and accepts that in relation to the Third Party Software supplied by GO365:
- the Third Party Software is not owned, developed, maintained or supported by GO365;
- GO365 is permitted, under a separate license arrangement with the Third Party Developer, to grant a sub-license or otherwise permit the Customer to access and use the Third Party Software in accordance with this Agreement. Accordingly, the Customer accepts that:
- the Customer may be required to execute Additional Agreements in order to access the Third Party Software;
- the Customer must only use the Third Party Software in strict accordance with this Agreement and any Documentation provided with the Software;
- GO365 does not make any representations or provide any warranties in relation to any Third Party Software upgrades, updates, modifications or continuity except those which are expressly stated in this Agreement and any Additional Agreements. Any and all warranties made in relation to Third Party Software are made by the Third Party Developer;
- the Third Party Software is provided by GO365 on an ‘as-is’ basis. Any upgrades, updates and modifications are provided by the Third Party Developer at its discretion as and when they are released by the Third Party Developer.
4.4 GO365 expressly disclaims any and all representations and warranties of non-infringement, express or implied, regarding Third Party Software. For avoidance of doubt, the Customer agrees that GO365 has no obligation to provide indemnification against any claims brought against the Customer by third parties alleging that any Third Party Software infringes, misappropriates, or otherwise violates the intellectual property rights or similar rights or any third party.
4.5 Use of the Software
In accessing and using the Software, the Customer undertakes to:
- access and use (and ensure that its Authorised Users access and use) the Software in accordance with this Agreement and any Additional Agreements and Documentation;
- maintain accurate and up to date records of the number and locations of all copies of the Software; and
- supervise and control the use of the Software in accordance with the terms of this Licence.
4.6 Excluded Use
The Customer must not at any time during or after the Term, directly or indirectly, do or attempt to do any of the following acts:
- translate or adapt the Software for any purpose without GO365’s prior express written consent;
- make any copy of the Software or Documentation without GO365’s prior express written consent;
- provide or otherwise make available the Software in whole or in part (including but not limited to program listings, object and source program listings, object code and source code), in any form to any person other than its Authorised Users without prior written consent of GO365;
- decompile, disassemble, reverse engineer (or any similar activity) the Software or an part thereof;
- infringe GO365’s IPR or the IPR of any Third Party Developer or third party (including but not limited to decompiling, reverse engineering or reproducing any content, information or portion of the Software) or any other unlawful purpose; or
- anything contrary to any other restrictions stated in this Agreement.
4.7 Except as expressly permitted by GO365 under this Agreement, the Customer hereby undertakes not to alter or modify the whole or any part of the Software in any way whatever nor permit the whole or any part of the Software to be combined with or become incorporated in any other program except to the extent permitted by law.
5. DATA AND VIRTUAL SERVER HOSTING SERVICES
5.1 During the Term the Customer may upload and save electronic information, data, material, virtual servers and other Electronic Assets (Customer Data) through an Internet connection onto its Account on:
- GO Managed Server located at the Data Centre; and
- GO365’s Virtual Servers and Virtual Data Centres (if applicable),as described in this Agreement.
5.2 Data and Virtual Server Hosting
Subject to payment of the Fees and Charges, GO365 will:
- provide, manage, maintain and operate all hardware, located at the Data Centre for the purposes of hosting the Customer Data;
- provide and arrange for the establishment and maintenance of any data transfer links and lines of communication, including those between the external communications room of the Data Centre and the Customer’s internal network, as the Customer requires to store the Customer Data on the server;
- implement reasonable security measures and procedures that GO365 considers necessary for the protection of the hardware containing the Customer Data. GO365 will make reasonable commercial endeavours to ensure that the building, premises, equipment and facilities located at the Data Centre with respect to the GO Managed Server are managed and maintained to protect against server failure, power failure or fire damage; and
- use its best endeavours to maintain one (or more) backup copies of the Customer Data on one (or more) GO365 Managed Server(s) which have been designated as part of the GO365’s Disaster Recovery (DR) site, at least on a daily basis; and
- obtain any consents or licences needed, comply with any conditions of consent, and keep current any licences or registrations needed for its use of the Data Centre,throughout the Term.
5.3 Data Allowance
- The Customer may only upload and store Customer Data on GO Managed Server(s) up to the Data Storage Capacity as specified in Schedule 2.
- The Customer will be unable to upload or store any additional Customer Data in excess of the Data Storage Capacity unless the Customer:
- reduces the amount of Customer Data stored on GO Managed Server(s); or
- upgrades its Account to a higher storage capacity and paying for additional data storage.
5.4 Uploading Customer Data
The Customer warrants that in relation to uploading any Customer Data, the Customer and its Authorised Users:
- have all the necessary licenses and rights to use any third party software hosted on the Customer’s behalf by GO365; and
- own and or otherwise have the right to store, access and maintain Customer Data hosted on the GO Managed Servers.
5.5 The Customer and its Authorised Users must not:
- upload, store or transmit any Customer Data onto the GO Managed Server(s) or Services which contain any virus or which may compromise the functionality or use of the GO Managed Server(s) or Services, including uploading or transmitting any Customer Data which may damage or corrupt the GO Managed Server(s) or Services; or
- use the GO Managed Server or Services in any way for any illegal or improper purposes (as determined by GO365 in its entire discretion).
5.6 The Customer acknowledges and agrees that GO365 reserves the right to require Customers to remove any Customer Data or Electronic Asset that may adversely affect the interests of GO365 or other GO365 customers. The Customer agrees that such content must be removed by Customers within twenty-four (24) hours of having been so advised by GO365.
5.7 Transfers of the Customer Data
- GO365 maintains strict procedures and standards and takes all reasonable care to prevent unauthorised access to, transfer, and modification and disclosure of, the Customer Data. GO365 will take all reasonable steps to protect the Customer Data from misuse and loss.
- GO365 will take all reasonable steps to secure any of the Customer Data that is transferred between the Customer and GO Managed Server(s) but as it is commonly acknowledged, no information transmission over the Internet can be guaranteed as fully secure and accordingly, GO365 cannot guarantee or warrant the security of any information the Customer sends to GO365 through the Internet or uploaded onto the GO Managed Server. The Customer acknowledges and agrees that it submits Customer Data over the Internet and into the GO Managed Server at the Customer’s own risk.
5.8 The Customer acknowledges and agrees that GO365 has recommended that the Customer maintains their own offsite, private back-up copies of their Customer Data. The Customer acknowledges and agrees that GO365 will not be responsible for any loss of the Customer Data as a result of the Customer’s use of these Services, including uploading or storing its Customer Data on GO Managed Server(s).
6. TECHNICAL SUPPORT
6.1 Where GO365 is or becomes aware of any pending interruptions to access to any of the Services, including the Software, GO365 will notify the Customer within twenty-four (24) hours of the pending interruption and the steps it will take to minimise any impact it may have on the Customer. GO365 will use reasonable commercial endeavours to minimise any infrastructure, hardware or software maintenance or development interruptions to the Customer.
6.2 Technical Support The Customer may submit technical support requests via email or telephone call to GO365’s nominated email address and telephone support numbers set out in Schedule 1.
6.3 Any technical support services not documented in Schedule 2 may be provided by GO365 under a separate SLA between the Parties and may be subject to additional fees.
7.1 The Customer must pay to GO365 the Fees and Charges in full as calculated pursuant to the Services and Fees and payment terms and conditions set out in Schedule 2. GO365 will raise invoices for the Fees and Charges as they arise and fall due.
7.2 The Customer must pay to GO365 the Fees and Charges by the due date stated on each invoice or as otherwise agreed by the Parties (Due Date). The Customer will notify GO365 in writing or via email within seven (7) days of receipt of an invoice if the Customer considers such invoice incorrect or invalid for any reason.
7.3 Annual Review of Fees and Charges
The Parties acknowledge and agree that the Fees and Charges set out in this Agreement are specified in Schedule 2 are current for the first Period of this Agreement and thereafter be subject to annual review by GO365.
7.4 Any changes in the rate of the Fees and Charges will be applicable upon GO365 giving the Customer at least thirty (30) days’ prior written notice of such change unless this Agreement is terminated within the thirty (30) day notice period.
7.5 The Parties agree that any change in any amount or rate of the Fees and Charges as a result of an annual review will be subject to GO365’s absolute sole discretion.
If any sum payable to GO365 by the Customer under this Agreement is not received by GO365 within thirty (30) days of the Due Date, interest will accrue on a day to day basis (both before and after any judgment) at the Interest Rate, until the sum is paid to GO365 in full.
7.7 Any failure by the Customer to pay the Fees by the Due Date may result in automatic suspension of the Customer’s access to the Services, including the Software and its access to any Customer Data located on the GO Managed Servers (at GO365’s sole discretion). In order to reinstate the Customer’s Account, the Customer must pay the unpaid Fees together with any Interest and other fees that may be in arrears, plus any Reconnection Fees that may apply, as per Schedule 2.
7.8 Where GO365 suspends the Customer’s access to the Services, the Customer will be unable to log in to the Customer’s Account. This means that the Customer will not be able to access any of the Customer’s Data in the Services or update, edit or add any Information to the Services unless and until the Customer pays the outstanding Fees and the Reconnection Fees.
7.9 Where GO365 cancels the Customer’s access to the Services, including access to the Software, the Customer remains responsible for payment of all outstanding Fees and Charges (plus GST) and any accrued Interest on the owing amounts.
8. CONFIDENTIAL INFORMATION
8.1 The Customer’s Confidential Information
8.2 GO365 Confidential Information
- GO365 Confidential Information includes all information in relation to the Software, technical Information, operation, specifications or any aspect of the GO Managed Server, Data Centre and Services (GO365 Confidential Information).
- The Customer may only disclose GO365 Confidential Information to:
- the Customer’s directors, officers and employees who have agreed to comply with the confidentiality obligations in this Agreement;
- the Customer’s professional advisers who have agreed to comply with the confidentiality obligations in this Agreement; or
- the Customer’s contractors, subcontractors or consultants who have signed confidentiality undertakings in an agreed form.
- Within twenty-four (24) hours after any written request from GO365, the Customer must:
- at GO365’s option, return or destroy all copies of GO365 Confidential Information in the Customer’s possession or control; and
- if requested by GO365, give GO365 a signed letter certifying compliance with the previous paragraph.
8.3 The Customer agrees to:
- keep GO365 Confidential Information confidential;
- adopt security measures in relation to GO365 Confidential Information that are at least as good as it would adopt for its own confidential information;
- only disclose or provide GO365 Confidential Information to those with a need to know for the purposes of this Agreement; and
- notify the GO365 immediately if it becomes aware of any unauthorised use, copying or disclosure of GO365 Confidential Information.
8.4 The Customer must not copy GO365 Confidential Information without GO365’s prior consent and where the consent is given, any copies of GO365 Confidential Information must be clearly marked “Confidential”.
8.5 The obligation to keep GO365 Confidential Information confidential will continue to be binding notwithstanding the termination of this Agreement for at least the period of time governed by the statute of limitations and information privacy laws in Western Australia.
9. INTELLECTUAL PROPERTY
9.1 The Customer acknowledges and agrees that all Intellectual Property rights in the Software licensed under this Agreement belong to GO365 or other Third Party Developers. Nothing in this Agreement transfers or assigns any Intellectual Property Rights in the Software to the Customer whatsoever. The Customer’s only right is to use the Software and Services during the Term in accordance with this Agreement.
9.2 GO365 acknowledges and agrees that software owned by the Customer shall remain the intellectual property of the Customer and this Agreement does not transfer or assign any Intellectual Property to GO365 or any other Third Party.
9.3 GO365 warrants that to the best of its knowledge the Customer’s use of the Software and Services as set out in this Agreement and any Documentation will not infringe the Intellectual Property Rights of any person.
9.4 The Customer acknowledges that GO365 will have no responsibility or liability under this Agreement in connection with claims made by third parties to the extent that they are directed towards the use of any Third Party Software.
10. TERM & TERMINATION OF THIS AGREEMENT
This Agreement will commence on the Commencement Date and continue for the Period and subsequent renewed Periods unless and until terminated in accordance with this clause 10 (Term).
10.2 Automatic Renewal
Upon expiry of the current Period, this Agreement will automatically renew for a further period of twelve (12) months unless terminated by either Party. This Agreement will be deemed to be automatically renewed for a subsequent Period if either Party does not provide the other Party with its notice of termination at least thirty (30) days prior to the expiry of the current Period.
GO365 may terminate this Agreement:
- without notice to the Customer if:
- the Customer commits a breach of any of clauses 4.6, 4.7, or 5.5 of this Agreement;
- a receiver or a receiver and manager is appointed to the undertaking, property, or assets of the Customer;
- the Customer is placed under official management;
- the Customer ceases to carry on business or becomes insolvent or a resolution is passed for the winding up of the Customer or an order is made for the appointment of a liquidator provisionally of the Customer or for the winding up of the Customer;
- the Customer commits any breach of any legislation or codes of practice governing any aspect of the Customer’s business or any Assignment;
- the Customer brings the business of GO365 into disrepute or is or becomes involved in a conflict with any officer (including director), employee, agent, or other client or customer of GO365.
- by giving seven (7) days’ notice to the Customer, if the Customer:
- fails to pay any amount owing to GO365 within fourteen (14) days of the date of a written request by GO365 to make payment;
- commits any breach of this Agreement (other than those described in clause 10.2(a)(i) which warrant immediate termination) and fails to remedy that breach within fourteen (14) days of the date of a written request from GO365 to do so.
10.4 Either Party may terminate this Agreement by giving the other Party thirty (30) days prior written notice.
10.5 Upon termination, the Customer must immediately:
- cease using the Services, including the Software;
- uninstall and delete any Software on the Customer and its Authorised User’s computing environment;
- return any hardware and Documentation supplied by GO365; and
- pay all outstanding amounts of Fees and Charges to GO365 under this Agreement.
10.6 Notwithstanding termination of this Agreement, this Agreement will continue to be binding on the Parties and enforceable in respect to the rights and obligations of each Party relating to:
- the payment of any sum(s) which are owing;
- return of any Media, hardware and Documentation and any other property provided to the Customer by GO365;
<liGO365’s Confidential Information; and>
- the Intellectual Property Rights of GO365 and any Third Party Developer.
11. WARRANTIES & LIMITATION OF LIABILITY
11.1 The Customer acknowledges that the Services and Software have not been prepared to specifically meet the Customer’s individual requirements and that it is the Customer’s responsibility to ensure that the facilities and functions of Services meet the Customer’s requirements. The Customer acknowledges that it has exercised its own independent judgment in entering into this Agreement and accepting the Services and Software, and has not relied on any representations made by GO365.
11.2 The Customer acknowledges and agrees that GO365 will not be liable for any failure of the Services to provide any facility or function not described in the Documentation or for any failure of Software attributable to any modification (whether by alteration, deletion, addition or otherwise) to the Software as a result of either the Customer being in default of its obligations under this Agreement, by persons other than GO365, or any use of the Software or Services contrary to this Agreement and any Documentation.
11.3 GO365 does not warrant or represent:
- that the Services or functions contained in the Software will meet the Customer’s requirements; or
- that the Services will be uninterrupted or error free.
The Customer acknowledges and agrees that GO365 is not liable for any delays or interruptions to users as a result of any service interruption or down time.
11.4 Third Party Software No warranties are provided by GO365 to the Customer whatsoever in relation to Third Party Software (or the Customer’s access to the Third Party Software) supplied under this Agreement, or other materials supplied by GO365 to the Customer in relation to Third Party Software, including any Documentation.
11.5 GO365 shall not be liable to the Customer or any person for any direct, indirect, incidental, special or consequential loss or damages or any loss of revenue or profits whatsoever where that result is directly or indirectly related to the Software or Services provided under this Agreement. The Customer agrees that GO365 will not be liable for such loss even where GO365 has been advised of the possibility of such loss or damage, or where such loss or damage may be foreseeable.
11.6 The express terms of this Agreement are in lieu of all warranties, conditions, terms, undertakings and obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise, all of which are hereby excluded to the fullest extent permitted by law. In the event that any statute implies terms into this Agreement which cannot be lawfully excluded, or where GO365 cannot be partially or wholly excluded, GO365’s liability for breach of any such implied term and GO365’s liability will be limited to payment to the Customer of any amount equal to the Fees paid by the Customer under this Agreement.
The Customer agrees to indemnify GO365 and hold GO365 harmless against any loss, costs, expenses, demands or liability, whether direct or indirect (Loss or Liability), incurred by GO365 arising out of a claim, demand, suit, action or proceeding by a third party against GO365 where such Loss or Liability arose out of, in connection with, or in respect of, the Customer’s use of the Software or Services under this Agreement, or alleging that the Customer infringed any intellectual property rights. This obligation shall survive any termination of this Agreement.
13. FORCE MAJEURE
Neither Party will be liable for any delay in performing or failure to perform its obligations (other than a payment obligation) under this Agreement due to any cause outside its reasonable control. Such delay or failure will not constitute a breach of this Agreement and the time for performance of the affected obligation will be extended by such period as is reasonable. If such event continues for more than thirty (30) days then either Party may elect to terminate this Agreement forthwith.
The Customer is not entitled to assign, sub-license or otherwise transfer its obligations under this Agreement whether in whole or in part without the written consent of GO365.
Any notice given by a party under this Agreement will be:
- in writing;
- delivered by hand or sent by pre-paid post or by facsimile transmission [or electronic mail] to the address(es) set out in Schedule 1;
- if delivered by hand – on the date of delivery,
- if sent by pre-paid post – seventy-two (72) hours after the date of mailing in Western Australia; or
- if sent by facsimile transmission [or electronic mail] to the correct facsimile number [or electronic mail address] of the addressee (with correct answer back):
- two (2) hours after a successful transmission report has been printed or noted by the Sender’s fax [or e-mail], if sent before 3.00 p.m. on any Business Day; and
- in any other case at 10.00 a.m. on the Business Day following the date of sending.
The Parties agree:
- to apply a construction of each provision of this Agreement that creates a legal and enforceable provision;
- that any illegal or unenforceable provision will be severed from this Agreement and will not affect the continued operation of the remaining provisions; and
- to use their best endeavours to replace any severed provision having a commercial import as close as possible to the severed provision.
17. ENTIRE AGREEMENT
These Terms and Conditions:
- exclude all conditions, warranties and terms implied by custom, general law or statute (except ones that by law may not be excluded);
- is the entire Agreement between the Parties about its subject matter; and
- in relation to that subject matter, supersedes any prior:
- understanding or Agreement between the Parties; and
- condition, warranty, indemnity or representation imposed, given or made by a Party.
18. GOVERNING LAW
The Parties agree that this Agreement will be governed by and construed in accordance with the laws of the State of Western Australia and agree to submit to the exclusive jurisdiction of Western Australia’s courts and any courts which have jurisdiction to hear appeals from any of those courts.