Deeligence Pty Ltd (ACN 665 609 307 and UK Company No FC043030) of 380 City Road, Southbank, 3006, Victoria, Australia (“Deeligence”) provides its customers with certain web-based subscription services in relation to legal due diligence project management. The Customer wishes to access and use the Subscription Services and provide its Authorised Users with access to and use of the Subscription Services. The following terms and conditions (“Terms”), are between Deeligence and the Customer stated in the relevant Order Form regarding the Customer’s access to and use of the Subscription Services. Any person who executes the Order Form on behalf of the Customer warrants to Deeligence that they are authorised on behalf of the Customer to accept and to bind the Customer to the Agreement.
1.1 Provision of Subscription Services. During the Subscription Term, Deeligence will provide the Customer with non-exclusive access to the Subscription Services in accordance with the relevant Plan and on the terms and conditions of this Agreement.
1.2 Plan. The Plan that the Customer purchases from Deeligence will determine the specific benefits and features available to the Customer and Authorised Users in relation to the Subscription Services and any limitations or restrictions regarding the Customer’s access to and use of the Subscription Services which the Customer agrees it must comply with. If the Customer breaches any of the restrictions or limits for the Customer’s Plan then the Customer must immediately: (a) ensure its access and use of the Subscription Services is reduced or limited so that it complies with the relevant restrictions or limits; or (b) upgrade the Subscription Services to a Plan which would enable the Customer’s continued use of the Subscription Services to comply with this Agreement.
1.3 Acceptable Use. The Customer and its Authorised Users must comply with Deeligence’s Acceptable Use Policy published on the Deeligence Website as updated from time to time. Without limiting any rights Deeligence has pursuant to theAcceptable Use Policy, if Deeligence reasonably believes that any unacceptable content in breach of the Acceptable Use Policy has been uploaded in connection with the Subscription Services or is otherwise being stored on the Deeligence Systems, Deeligence may request that the Customer either remove such content or Deeligence may disable access to the relevant content. Deeligence will have the right (but not the obligation) to remove such content from the Subscription Services or Deeligence Systems or disable access where the Customer has not complied witha Deeligence request under this clause within five (5) days of the date of the request.Nothing in this Agreement imposes obligations on Deeligence to monitor the Subscription Services or screen Data for such content.
1.4 Responsibility for Use and Third-Party Claims Indemnification. The Customer assumes sole responsibility for its use of the Services, the results of the Services (including any Service Outputs) and ensuring that its activity in connection with such use complies with all Laws. As between the Customer and Deeligence, theCustomer is responsible for ensuring that Authorised Users comply with these Termsin connection with use of the Subscription Services. The Customer indemnifies Deeligence against losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with any Third Party claim relating to use of the Services by the Customer or its Authorised Users (including any claim in connection with any document reviewed using the Subscription Services). The Customer must ensure that all Authorised Users are properly trained regarding the use of the Subscription Services.
1.5 General restrictions. Without limiting the other obligations of the Customer under this Agreement, the Customer must, and must ensure that each Authorised User must: (a) only access and use the Subscription Services for internal business purposes which, for the avoidance of doubt, in relation to the Customer includes performing the due diligence services in respect of Documents for its clients; (b) onlyuse and copy the Deeligence User Resources to the extent necessary to use and receive the benefit of the Subscription Services (and must follow Deeligence’s instructions concerning the return or destruction of any superseded versions of the Deeligence User Resources); (c) not modify, adapt, translate, reverse engineer, de-compile, disassemble or copy all or any part of the Subscription Services; (d) not, itself or engage someone on its behalf to, build or develop a platform, application or software which is the same as or similar to the Subscription Services; (e) not attempt to circumvent or break any encryption, decryption or other security device or technological protection measure contained in the Subscription Services; (f) not upload any viruses, bugs, worms, trojan horses, harmful codes or any other form of defect or contaminant which could cause temporary or permanent damage to or will otherwise impair or harm or cause the malfunction of the Subscription Services or the underlying software or hardware of Deeligence or any third party; (g) save for providing its Authorised Users with access to the Subscription Services and Service Outputs, not distribute any part of the Subscription Services or Deeligence User Resources for commercial purposes or otherwise sub-licence, transfer, assign, rent, lease, lend, resell or supply access to the Deeligence User Resources or Subscription Services to any third party without the written consent of Deeligence; (h) not allow any person (other than Authorised Users) to have access to the Deeligence User Resources or Subscription Services; (i) not make any part of the Subscription Services publicly available; and (j) not encourage or assist any third party to do any of the restricted acts referred to in this clause.
1.6 Service Outputs. The Customer acknowledges and agrees that: (a) Service Outputs are based on and are generated from certain information in the Data which the Customer and Authorised Users submit in connection with use of the Subscription Services; (b) the Service Outputs and the provision of the Subscription Services does not constitute the provision of any legal advice or legal services to the Customer or its Authorised Users by Deeligence or any other person or any advice, view or interpretation in respect of any Document including the compliance of the Document with any Laws or any due diligence undertaken in respect of the Documents; (c) Service Outputs do not take into account all of the specific circumstances relevant to the Customer, Authorised Users or a Document and is not a substitute for the provision of legal advice or other legal services; (d) Deeligence cannot guarantee the accuracy of any Service Outputs; (e) the Service Outputs can only be used by the Customer and its Authorised Users for the purpose of undertaking due diligence or review of Documents; (f) where a search function is enabled as part of the Subscription Services, Deeligence cannot guarantee that the results provided by that function are complete or accurate as such results are affected by the formatting of the information, the search criteria specified by users and the information made available by users; (g) some conversion, compression andsimilar functionality is available within the Subscription Services for convenience but is utilised at the Customer’s risk, Deeligence cannot guarantee that formatting, numbering or similar within Service Outputs will not be impacted by such conversion,compression or similar tools (the Customer is encouraged to convert documents into the appropriate format prior to uploading Data to avoid such issues); and (h) parts of the Subscription Services may provide recommendations, comments and prompts, including but not limited to predictive insights or statistical analysis. The Customer further acknowledges and agrees that these are not a substitute for legal, accountingor other professional advice and the Customer should determine independently or with the aid of advice whether and how to proceed with any recommendations, comments or prompts provided to it or its Authorised Users.
1.7 Third Party Applications. The Customer acknowledges that the Subscription Services may interact with Third Party Applications or require Third Party Applications or third party providers be used to provide particular features or functionality. The Customer acknowledges that access to such Third Party Applications or services and any support for such Third Party Applications or services must be obtained directly from the relevant third party provider at the Customer’s cost. Deeligence does not make any representations or warranties regarding any such Third Party Applications or services and will not be responsible for any issues in respect of Third Party Applications or services or any loss suffered by the Customer in connection with any Third Party Applications or services or the Customer’s dealings with third party providers.
1.8 Technical support. During the Subscription Term, Deeligence will provide the Customer and its Authorised Users with technical support in relation to the use and operation of the Subscription Services, on a reasonable efforts basis, and limited to the Support Services that the Customer is entitled to under its Plan during the hours of support applicable to that Plan.
1.9 Additional Services. Where applicable, Deeligence will provide such Additional Services as specified in the Order Form.
2.1 Provision of Authentication Credentials. The Customer will be responsible for the creation of the Authentication Credentials (which will be created by the Authorised Users at the time the Authorised User registers to use the Subscription Services).
2.2 Obligations of the Customer in relation to the Authentication Credentials. The Customer must: (a) ensure that each Authentication Credential is securely maintained and used only by the Authorised User to whom the Authentication Credential has been issued; (b) comply with any policies, guidelines or other requirements issued by Deeligence from time to time in any way relating to Authentication Credentials; (c) ensure that the Authorised User is no longer authorised to access and use the Subscription Services on behalf of the Customer if an Authorised User either ceases to be employed / engaged by the Customer or ceases to require access to the relevant Subscription Services; (d) immediately notify Deeligence if an Authentication Credential is lost, stolen, missing or is otherwise compromised or if the Customer becomes aware of any breach of the provisions of this Agreement by the Authorised User, in which case the Authentication Credentials may be suspended until such time as the breach is remedied to Deeligence’s satisfaction; (e) control the issuing of Authentication Credentials through its Customer Users and not allow any Third Party User to issue, or have the ability to issue, Authentication Credentials within the Subscription Services (such issuing rights being reserved to Customer Users only) without the express written consent of Deeligence; and (f) not transfer or allow Authentication Credentials to be transferred between or amongst Authorised Users or other individuals or systems and take all reasonable steps to ensure that Authentication Credentials are not transferred.
2.3 Management of Authentication Credentials. The Customer acknowledges andagrees that Deeligence reserves the right at any time to change and/or revoke Authentication Credentials by providing the Customer or the relevant Authorised User with written notice.
3.1 Initial Term. The Subscription Term commences on the Commencement Date and will continue for the Initial Term, unless terminated earlier in accordance with these Terms.
3.2 Renewal of annual Plans. Where Subscription Services are provided to the Customer on an annual Plan, at the expiry of the Initial Term or any Further Term, this Agreement will automatically renew for successive Further Terms, unless a party provides written notice to the other party at any time prior to the expiration of the then current Subscription Term that the agreement will not be renewed for a Further Term.
4.1 Invoicing. Deeligence will issue the Customer with a tax invoice for the Fees payable by the Customer (“Tax Invoice”) in accordance with the terms of payment (including frequency) as set out in the Order Form and the Customer agrees to pay such Fees.
4.2 Payment Facility. The Customer may, prior to the Commencement Date, provide Deeligence with details of its credit card, bank card, bank account or other facility (“Payment Facility”) and a signed authority which enables Deeligence to direct debit the Fees from its Payment Facility in accordance with clause 4.3 below.
4.3 Payment by Customer. Where the Customer has agreed a Payment Facility, Deeligence may debit the relevant Fees from the Payment Facility within three days (or such other period determined by Deeligence) of the Tax Invoice being issued by Deeligence. Where the Customer has not agreed to payments via a Payment Facility, all amounts payable by the Customer must be paid in accordance with the payment methods stated in the relevant Tax Invoice and within 14 days of the date of the relevant amounts being invoiced to the Customer by Deeligence (or such other period as agreed in the Order Form).
4.4 Currency and taxes. All Fees will be charged in the currency specified in an Order Form. Fees specified in an Order Form are exclusive of GST (or any other applicable value added tax). GST or other applicable value added tax will be included in the Tax Invoice and the Customer will be responsible for the payment of all applicable taxes.
4.5 Failure to pay. If the Customer fails to pay any amounts due to Deeligence under this Agreement (including where any payment via a Payment Facility is declined or otherwise rejected) then, without prejudice to Deeligence’s other rights regarding the non-payment: (a) Deeligence may charge the Customer interest (both before and after any judgement) on the unpaid amount at the interest rate which is fixed from time to time under section 2 of the Penalty Interest Rate Act 1983 (Vic), which interest will accrue and be chargeable from the first day on which such amount becomes overdue until Deeligence receives payment of all such amounts (including all interest) by way of cleared funds; and (b) Deeligence may issue a notice to the Customer stating that the Tax Invoice is overdue (“Overdue Notice”). If Deeligence does not receive payment of the relevant Fees within 14 days of the date of the Overdue Notice, Deeligence may cease providing the Subscription Services and any Additional Services and may, without liability, disable the Customer’s and any Authorised User’s access to the Subscription Services until such time as the outstanding amount is paid in full (together with any interest).
4.6 Changes to fees. Unless otherwise expressly agreed in writing by Deeligence, Deeligence may increase the Fees payable by the Customer in respect of the relevant Subscription Services by providing notice in writing to the Customer at least 30 days before the end of the then-current Initial Term or Further Term (as the case may be). Any increase in the Fees notified by Deeligence under this clause will only become effective in respect of Services that are provided by Deeligence on and from the commencement of the next Further Term.
5.1 Our Intellectual Property. The Customer acknowledges that nothing in this Agreement grants the Customer any ownership of or rights in respect of the Intellectual Property Rights in the Subscription Services, Deeligence Systems, the Deeligence User Resources (including in the design, format and/or layout), the Intellectual Property Rights in the design, format and layout of any Service Outputs or in relation to any Intellectual Property Rights in any other materials created in connection with the performance of the Services. In the event that any Intellectual Property Rights described in this clause vest in the Customer or its Authorised Users during the Subscription Term, the Customer hereby assigns (and will procure the assignment of) such Intellectual Property Rights to Deeligence immediately upon theIntellectual Property Rights being created or vesting and the Customer agrees to do all things and execute all documents as is reasonably necessary to effect such assignment.
5.2 Limited licence. During the Subscription Term, Deeligence grants the Customer a limited, non-exclusive and revocable licence to use the Intellectual Property Rights referred in the Services (excluding Service Outputs) and Deeligence User Resources solely to the extent necessary for the Customer and its Authorised Users to receive the benefit of the Services. Unless revoked earlier by Deeligence, the licence granted under this clause terminates immediately upon the termination or expiry of this Agreement. Deeligence grants the Customer a non-exclusive, and perpetual licence (sublicensable to Authorised Users) to use Deeligence’s Intellectual Property Rights subsisting in Service Outputs for the limited internal business purposes of the Customer and its Authorised Users in connection with the relevant Documents.
5.3 Feedback and Collaboration. From time to time, the Customer or its AuthorisedUsers may submit comments, suggestions or other forms of feedback to Deeligence (“Feedback”). If Deeligence collaborates with the Customer or its Authorised Users in relation to implementing any new functionality, any contributions made by the Customer or its Authorised Users will constitute Feedback. Deeligence may freely use, copy, disclose, licence, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on Intellectual Property Rights or otherwise and the Customer grants to Deeligence a perpetual and irrevocable licence to use and exploit such Feedback. The Customer consents (and will procure Authorised User consent) to Deeligence’s use of Feedback even if such use may otherwise infringe any “moral rights” pursuant to Law.
5.4 Deeligence’s IP indemnity. Deeligence agrees to defend the Customer against any claim that its access and use of the Subscription Services strictly in accordance with these Terms and Deeligence’s instructions infringes any third party’s Intellectual Property Rights and will indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that: (a) the Customer gives Deeligence prompt notice of any such claim; (b) the Customer provides reasonable co-operation to Deeligence in the defence and settlement of such claim; and (c) Deeligence is given sole authority to defend or settle the claim. This indemnity will not apply if the alleged infringement is based on: (i) Third Party Applications or other third party content or technology; (ii) the Data; (iii) a modification of the Subscription Services by anyone other than Deeligence; (iv) the Customer’s use (or its Authorised Users use) of the Subscription Services in a manner contrary to Deeligence’s published documentation as accessible from within the Subscription Services, these Terms or any instructions given to the Customer by Deeligence; or (v) the Customer’s continued use of the Subscription Services after notice of the alleged or actual infringement was provided to the Customer. In the defence or settlement of any claim, Deeligence may procure the right for the Customer to continue using the Subscription Services, replace or modify the Subscription Services so that they become non-infringing or, if such remedies are not reasonably available, immediately terminate the Agreement on notice and provide the Customer with a pro rata refund of any pre-paid subscription fees for any unused period of the then-current Subscription Term. This clause states the Customer’s sole and exclusive rights and remedies, and Deeligence (including its employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any Intellectual Property Rights.
6.1 Ownership and Intellectual Property. Deeligence acknowledges that, as between Deeligence and the Customer, the Customer will own all Intellectual Property Rights in respect of the Data (including Data subsisting in Service Outputs but excluding any Intellectual Property Rights in the design, format and layout of Service Outputs). The Customer grants Deeligence a non-exclusive, irrevocable, royalty free licence to use and reproduce the Data (including where subsisting in Service Outputs) for: (a) purposes related to the provision of the Services; and (b) Deeligence undertaking data analytics, development or improvement of the Subscription Services or other products of Deeligence or other similar activities but only where Deeligence utilises de-identified versions of such Data and Service Outputs.
6.2 Your Data Compliance Obligations. To the extent that Deeligence’s processes any ‘personal information’ (as defined in the Privacy Act 1988 (Cth)) as part of the Services, it does so in accordance with its privacy policy available on the DeeligenceWebsite as updated from time to time. The Customer acknowledges and agrees that Deeligence does not control, is not responsible for and provides no warranty in relation to the Data and the Customer warrants that: (a) it has obtained all necessary consents in relation to the use of the Data; (b) the uploading, storage and use of Data in connection with the Services will not breach any Laws; and (c) the Data will not infringe the Intellectual Property Rights of any third party. The Customer indemnifies Deeligence against any claim, action, proceeding or demand by a third party claim alleging that the Data as submitted/used in connection with the Subscription Services infringes the Intellectual Property Rights or privacy-related rights of a third party, including without limitation all liability, damages, losses, costs (including without limitation court costs and legal fees), charges, outgoings, payments and expenses suffered or incurred in connection with any such claim.
6.3 Back-ups and archiving. The Customer acknowledges and agrees that: (a) Deeligence is under no obligation to provide back up, archiving, record keeping or other similar services in respect of the Service Outputs and Data and the Customer is responsible for implementing and maintaining its own back up, archiving, record keeping and data retrieval procedures in respect of the Service Outputs and Data; and (b) Deeligence will not be liable for any loss which the Customer or its Authorised Users may suffer as a result of any Service Outputs or Data that has been deleted, destroyed or otherwise lost (including where such Service Outputs or Data is deleted by an Authorised User). Notwithstanding the foregoing, Deeligence may implement its own internal back-up policies in respect of the Subscription Services (information available on request). In the event of loss or damage to Data or Service Outputs, the Customer’s sole and exclusive remedy will be for Deeligence to use reasonable commercial endeavours to restore the lost or damaged Data or Service Outputs from the latest backup implemented, to the extent that any such backup included the relevant Data or Service Outputs.
6.4 Deeligence’s security obligations. Deeligence will take all reasonable steps to ensure the security and safety of the Service Outputs and Data and information stored on the Deeligence Systems, including by implementing and maintaining commercially reasonable and current data protection and virus screening procedures and technologies. Further details regarding these procedures and technologies may be provided by Deeligence on request. Provided Deeligence complies with its obligations under this clause, Deeligence will not be liable for any loss suffered by the Customer which arises out of or in connection with any computer viruses being transferred by or obtained as a result of the use of the Subscription Services or any hacking into or other similar attacks on the Deeligence Systems.
6.5 Security breaches. If Deeligence becomes aware of anything that it believes compromises the security, safety, integrity or confidentiality of the Data which is in the possession of Deeligence (“Security Breach”), Deeligence must: (a) promptly notify the Customer of that fact, together with reasonable details of the Security Breach and any steps that can be taken to mitigate the effects of the Security Breach; (b) promptly use reasonable efforts rectify the relevant Security Breach and mitigate its effects; and (c) if requested to do so by the Customer, provide the Customer with a report detailing the cause of the Security Breach and any remediation or mitigation steps taken by Deeligence.
7.1 Confidentiality obligations. Where a party (“Recipient”) receives Confidential Information from the other party under this Agreement or otherwise in connection with the Subscription Services, the Recipient must: (a) keep the Confidential Information confidential; (b) subject to clause 7.2, not use, disclose or reproduce the Confidential Information for any purpose other than the purposes of this Agreement; and (c) establish and maintain commercially reasonable security measures to safeguard the Confidential Information from unauthorised access, use, copying or disclosure.
7.2 Permitted disclosure. Notwithstanding clause 7.1, the Recipient may use or disclose Confidential Information to the extent necessary to: (a) perform its obligations or exercise its rights under this Agreement (including, in the case of Deeligence, for the purposes of providing the Subscription Services); (b) comply with any Law, binding directive of a regulator or a court order; (c) comply with the listing rules of any securities exchange on which its securities are listed; or (d) obtain professional advice in relation to matters arising under or in connection with this Agreement.
8.1 Changes to the Subscription Services. The Customer acknowledges that the Subscription Services are on-line and subscription-based in nature, and that in order to provide improved customer experience Deeligence may vary the features, functions and other benefits available to customers in respect of the Subscription Services from time to time. Where possible, Deeligence will seek to provide reasonable prior notice to the Customer of any material deprecation of any substantial feature or functionality or discontinuance of all or a substantial part of the Subscription Services (“Material Deprecation”). For the avoidance of doubt, the removal or discontinuance of a part of the Subscription Services where similar functionality is moved to or otherwise implemented within another part of the Subscription Services will not constitute a Material Deprecation. In the event of a notified Material Deprecation, the Customer may either cancel auto-renewal by terminating the Agreement at the end of the then-current Initial Term or Further Term (as applicable) or elect to terminate the Agreement earlier by providing Deeligence with written notice. Where the Customer elects to terminate the Agreement earlier than the end of the then-current Initial Term or Further Term (as applicable) pursuant to this clause, the Customer will be entitled to a pro-rata refund of its pre-paid Fees in respect of that part of the remaining term to which such Material Deprecation would otherwise apply. The Customer’s right to terminate pursuant to this clause will cease at the end of the then-current Initial Term or Further Term (as applicable).
8.2 Changes to these Terms. Deeligence may modify these Terms from time to time by providing notice to the Customer. Except as otherwise indicated below, changes to these Terms will take effect in respect of this Agreement on and from commencement of the next Further Term. Notwithstanding the foregoing, to address new legal requirements or new features of our Subscriptions Services Deeligence may specify that such changes become effective during the Customer’s then-current Subscription Term. If the effective date of such changes occurs during the Customer’s then-current Subscription Term and the Customer objects to the changes, then (as sole remedy) the Customer may terminate the Agreement by written notice to Deeligence will be entitled to a pro-rata refund of any pre-paid Fees in respect of that part of the then-current Subscription Term during which the relevant changes would otherwise be effective. The Customer’s limited right to terminate pursuant to this clause will cease at the end of the then-current Subscription Term.
9.1 Termination with cause. Either party may, by written notice to the other party, terminate this Agreement with immediate effect: (a) if the other party fails to comply with any written notice requiring that other party to remedy a breach of its obligations under this Agreement within 7 days of receiving that notice; (b) if the other party commits a breach of this Agreement which is incapable of remedy; or (c) if the other party is the subject of an Insolvency Event.
9.2 Consequences of termination. Upon termination or expiry of this Agreement taking effect: (a) the Customer must immediately: (i) cease using and ensure that each Authorised User ceases using the Subscription Services; (ii) pay to Deeligence all Fees, expenses or other sums payable to Deeligence under this Agreement which have accrued or are payable as at the date of termination; (iii) return to Deeligence any Deeligence User Resources in the Customer’s possession or control; and (iv) provide Deeligence with written confirmation that it has completed its obligations under this clause; (b) where this Agreement is terminated by Deeligence under clause 9.1, Deeligence may retain all Fees which have been paid by the Customer toDeeligence prior to the termination or expiry of this Agreement (regardless of whether such Fees have been paid by the Customer in advance) and is entitled to invoice the Customer any Fees relating to the remainder of the then-current Subscription Term, such Fees becoming immediately payable on termination;(c) where this Agreement is terminated by the Customer under clause 9.1, the Customer will be entitled to a pro-rata refund of any Fees paid in advance in respect of that part of the then-current Subscription Term for which Fees have been paid but Subscription Services will not be provided); and (d) Deeligence ceases to have any obligations under this Agreement with respect to the provision of Subscription Services or any Additional Services and may disconnect the Customer’s access to the Subscription Services and disable all Authentication Credentials.
9.3 Obligations continuing following termination. The termination or expiry of thisAgreement does not operate to terminate any rights or obligations under this Agreement that by their nature are intended to survive termination or expiration, including: (a) the parties’ rights and obligations under clauses 1.4, 1.6, 4, 5, 6.1, 6.2, 7, 9.2, 9.3, 10, 11,12 and 13; and (b) any provisions which limit or exclude a party’s liability, and those rights or obligations remain in full force and binding on the party concerned.
10.1 Acknowledgement. The Customer acknowledges that the Subscription Services are provided on an ‘as-is’ and ‘as available’ basis. Deeligence does not warrant that the use of the Subscription Services will be uninterrupted, timely or error-free. Deeligence is not responsible for delays, disruptions or other faults in the Subscription Services caused by factors beyond Deeligence’s control, including but not limited to problems with the public internet and the network/technology environment of the Customer or its Authorised Users. The Customer must satisfy itself that the Subscription Services are compatible with its own hardware, software and internet and network capabilities (and maintain all hardware, software, Third Party Applications and other technology necessary to be able to access and use the Subscription Services).
10.2 No implied warranties. Subject to this clause 10, Deeligence exclude all rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms in relation to the Subscription Services that are not expressly set out in these Terms, to the maximum extent permitted by law. If Deeligence is liable to the Customer under Australian Consumer Law in relation to a failure to comply with a guarantee that cannot be excluded, Deeligence limits its liability to the resupply of the services or the payment of the cost of resupply.
10.3 Maximum liability. Subject to this clause 10 and notwithstanding any other provision of this Agreement, the maximum aggregate liability of Deeligence for any losses, damages or claims, however caused or arising, whether in contract, tort (including negligence) or otherwise, in connection with this Agreement is limited to the total amount of the Fees paid by the Customer to Deeligence under this Agreement during the 12 month period prior to the Customer first notifying Deeligence of the relevant loss, damage or claim. The foregoing limitation operates as an aggregate limit for all losses, damages or claims in connection with this Agreement, whenever occurring or notified. Neither party will be liable for any Consequential Loss, however caused or arising, whether in contract or tort (including negligence) or otherwise suffered or incurred by the other party in connection with this Agreement. This clause applies even if the party knew or ought to have known that the relevant Consequential Loss would be suffered. For the avoidance of doubt, nothing in this clause applies to or limits the obligations of the Customer in relation to payment of Fees.
10.4 Liability not excluded. Nothing in these Terms excludes a party’s liability for: (a) death or personal injury caused by Deeligence’s negligence; (b) fraud or fraudulent misrepresentation; (c) express indemnification obligations of either party; or (d) liability that cannot be excluded by Law.
The Customer agrees that, unless the Customer otherwise notifies Deeligence in writing, for the purposes of promoting and marketingDeeligence products and services, Deeligence is entitled to publicise its relationship with the Customer and Deeligence’s provision of services to the Customer (including reasonable use of the Customer’s trade mark on marketing materials) on the condition that Deeligence complies with any trademark usage guidelines as reasonably provided by the Customer to Deeligence from time-to-time.
12.1 Notices. Any notices given by the Customer to Deeligence under these Terms must be sent to team@Deeligence.com. Any notices given by Deeligence to the Customer under these Terms must be sent to the physical address or email address as provided in the Order Form or such physical address/email address as subsequently notified by the Customer. Any notice required to be provided to an Authorised User may also be provided to the email address that is part of their Authentication Credential.
12.2 Order of precedence. To the extent of any inconsistency between these Terms, the Order Form, appendices or any other document, the order of priority (from highest to lowest) for the purposes of any interpretation is (a) these Terms as varied by the Special Conditions (where applicable); (b) the Order Form including its appendices (but excluding any Special Conditions); and (c) any document referenced in these Terms or the Order Form (including its appendices).
12.3 Governing law. This Agreement will be construed and interpreted in accordance with the laws of the state of Victoria, Australia and each party submits to the non-exclusive jurisdiction of courts of that jurisdiction.
12.4 Assignment. The Customer may not assign or otherwise deal with any of its rights or obligations under this Agreement without the prior written consent of Deeligence. Deeligence may assign, novate or otherwise deal with its rights under this Agreement at any time effective immediately upon Deeligence notifying the Customer of the assignment or novation.
12.5 Entire Agreement. This Agreement constitutes the entire Agreement between the parties with respect to its subject matter and supersedes all previous communications, representations, inducements, undertakings, agreements or arrangements between the parties or their respective officers, employees or agents.
12.6 Relationship between parties. This agreement does not create a relationship of employment, agency, partnership or joint venture between the parties.
12.7 Force Majeure. Neither party will be liable for any delay or failure in performance of its obligations under these Terms if the delay or failure is due to any cause outside its reasonable control. This clause does not apply to any obligation of the Customer to pay the Fees or other amounts payable to Deeligence under this Agreement.
12.8 Waiver. No failure to exercise or delay in exercising any right given by or under this Agreement to a party constitutes a waiver and the party may still exercise that right in the future.
12.9 Severability. If any provision of this Agreement is invalid or not enforceable in accordance with its terms in any jurisdiction, it is to be read down, if possible, so as to be valid and enforceable and will otherwise be capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of this Agreement or affecting the validity or enforceability of that provision in any other jurisdiction.
13.1 Interpretation. In this Agreement, headings are inserted for convenience only and do not affect the interpretation of this Agreement and, unless the context otherwise requires: (a) the singular includes the plural and vice versa; (b) if a word orphrase is defined, its other grammatical forms have a corresponding meaning; (c) the meaning of general words is not limited by specific examples introduced by ‘includes’, ‘including’, ‘for example’, ‘such as’ or similar expressions; (d) a reference to a person includes an individual, a partnership, a corporation or other corporate body, a joint venture, a firm, a trustee, a trust, an association (whether incorporated or not), a government and a government authority or agency; and (e) no provision of this Agreement will be construed to the disadvantage of a party merely because that party was responsible for the preparation of the Agreement or the inclusion of the provision in the Agreement.
13.2 Definitions. In these Terms, unless the context otherwise requires:
Additional Services means any additional services which Deeligence agrees to provide to the Customer during the Subscription Term as specified in an Order Form or as otherwise subsequently agreed in writing by the parties, which may include the provision of consulting, customisation, implementation, training, integration or other services.
Agreement means the relevant Order Form executed by both parties, these Terms together with all documents which are appended and/or referred to in the executed Order Form and/or these Terms.
Authentication Credential means the username and password or other means of authentication which the Customer or Authorised Users are required to provide in order to be able to access the Subscription Services.
Authorised Users means: (a) the employees, partners, or independent contractors of the Customer and/or the Customer’s related group entities (each a “Customer User”); and (b) any third party individual who is issued with an Authentication Credential by a Customer User as determined by the Customer (each a “Third PartyUser”).
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and any equivalent State or Territory legislation.
Commencement Date means the commencement date set out in the Order Form or, if no date is set out in the Order Form, the earlier of: (a) the date the last party executes the Order Form; and (b) the date an Authorised User first uses the Subscription Services.
Confidential Information means any information provided by a party to the other party (whether provided before or after the Commencement Date) in connection with the Subscription Services, any Additional Services or this Agreement and in the case of Deeligence, includes the Order Form, the Deeligence User Resources or any other information regarding the Subscription Services, but does not include information which is in or becomes part of the public domain, other than through a breach of this Agreement or of an obligation of confidence, or information which a party proves was independently acquired or developed without breaching any of the obligations set out in this Agreement.
Consequential Loss means: (a) all indirect and consequential loss; (b) all loss beyond the normal measure of damages; and (iii) all loss of revenue, loss of data, loss of reputation, loss of profits, loss of actual or anticipated savings, loss of bargain, lost opportunities, including opportunities to enter into arrangements with third parties, loss of use, cost of capital or costs of substitute goods, facilities or services.
Customer means the party named as the Customer in the Order Form.
Data means all information, images, Documents and other data (whether relating to the Customer, its Authorised Users or otherwise) uploaded in connection with the Subscription Services by or on behalf of the Customer or its Authorised Users.
Deeligence Systems means the underlying computer servers or other hardware or systems used by Deeligence in connection with its provision of the Subscription Services.
Deeligence User Resources means any manuals, guides, reference materials, reports or other similar documents in any form made available by Deeligence to the Customer in connection with the Subscription Services.
Deeligence Website means the website located at https://www.Deeligence.com or the website located at such other URL that Deeligence notifies the Customer of from time to time.
Document means any document or material regardless of form uploaded by or on behalf of the Customer or its Authorised Users in connection with the Subscription Services or which the Subscription Services is otherwise used to undertake project management of due diligence, including data room documents, due diligence reports, agreements, deeds, memoranda, emails, notes, correspondence and records.
Fees means any fees or other amounts payable by the Customer to Deeligence under this Agreement, including the fees set out in the Order Form.
Further Term means the period specified in the Order Form or such other period as subsequently agreed in writing by the parties.
Initial Term means the period as specified in the Order Form or such other period as subsequently agreed in writing by the parties.
Insolvency Event means, in relation to a body corporate, a liquidation or winding up or the appointment of a voluntary administrator, receiver, manager or similar insolvency administrator to that body corporate or any substantial part of its assets; in relation to an individual or partnership, the act of bankruptcy, or entering into a scheme or arrangement with creditors; in relation to a trust, the making of an application or order in any court for accounts to be taken in respect of the trust or for any property of the trust to be brought into court or administered by the court under its control; or the occurrence of any event that has substantially the same effect to any of the preceding events.
Intellectual Property Right means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
Law means any applicable rules of common law, principles of equity, international, federal, state and local laws, statutes, rules, regulations, proclamations, ordinances and by-laws and other subordinate legislation.
Order Form means the order form executed by the parties in respect of the Subscription Services.
Plan means the subscription level or type of subscription that the Customer purchases from Deeligence from time to time, as set out in the relevant Order Form or otherwise agreed with Deeligence.
Services means any of the Subscriptions Services or Additional Services as the context dictates.
Service Outputs means the information and data generated by the Subscription Services for the Customer’s use based on the Data submitted by the Customer and which is made available to the Customer and Authorised Users as part of the Subscription Services.
Special Conditions means the conditions specified in the section of the Order Form titled “Special Conditions” (if any).
Subscription Services means the online due diligence project management products as specified in the Order Form and including access to Deeligence User Resources.
Subscription Term means the Initial Term together with any subsequent Further Terms.
Support Services means any technical or user support services in relation to the Subscription Services that the Customer is entitled to receive under this Agreement, based on the relevant Plan.
Third Party means any person that is not the Customer or Deeligence.
Third Party Application means any product, service, system, application or internet site integrated or interfaced with the Subscription Services that is owned or operated by a third party provider, and that is used by the Customer or any Authorised User in connection with the Subscription Services.