These Terms of Service (Terms) are between Foxley Software Pty Limited (ABN 48 600 688 702) (referred to as Foxley) and the each individual or entity agreeing to these Terms (referred to as you or your), collectively referred to as the Parties and each a Party. These Terms govern your access to and use of Foxley business platform (Platform) via Foxley’s website at www.foxley.com (Site) and mobile application (App), and related services (together with the App, Website and Platform referred to as Services) or accessing any content or material accessible via the Services or otherwise made available to you by Foxley (Content). Access to the Services and Content on any mobile, tablet, console or other devices (Device) may be subject to technical requirements as set out on the Website.

 

  1. ACCEPTANCE
    • These Terms form a binding legal agreement between the Parties. By using the Services, you agree to comply with and be legally bound by these Terms. Please read these Terms carefully. If you have any questions, you should contact Foxley using the contact details at the end of these Terms.
    • You acknowledge and agree to these Terms by: (i) ticking ‘I Agree’; (ii) accessing or using the App, Site or Services; or (iii) making part or full payment for the Services. If you do not agree to these Terms, you should cease accessing or using the App, Services and Site immediately. If you are agreeing to these Terms on behalf of an entity, including but not limited to a company or other organisation, you represent and warrant that you have the power and authority to enter into agreements and bind such entity and act on behalf of any person who uses the Services (each a User, collectively referred to as Users).
    • Foxley reserves the right to make changes to these Terms at any time, effective upon the posting of the modified Terms. Foxley endeavours to communicate these changes to you via email. It is your obligation to ensure that you (and each User where applicable) has read, understood and agreed to the most recent Terms available on the App or Site.
    • Using the App, Site or Services may be prohibited or restricted in certain countries. If you use the Services outside of Australia, you are responsible for complying with the laws and regulations of the country from which you access or use the Services.
  2. ADDITIONAL TERMS AND CONDITIONS
    • These Terms supplement and incorporate the privacy policy (Privacy Policy) and Website Terms of Use, or any community guidelines posted by Foxley (collectively the Foxley Policies) as set out on the App and Site.
    • Your access and use of the Content and Services may be subject to additional terms and these will be set out on the Site where applicable.
  3. ACCESS TO CONTENT AND SERVICES
    • Access to the Content and Services will require you to:
  • register for an account (Account). Basic information is required for Account registration including your email address and other related information as requested by Foxley via the Website (User Information); and
  • subscribe to the Services (Subscription) for a period of time as set out on the Registration Form (Subscription Period). The fees for each Subscription Period (Subscription Fee) will vary subject to the particular Services and Content that forms part of your Subscription.

Please note that Subscription for some Services may: (i) have set commencement dates as set out on the App and Site; and/or (ii) have limited capacity and may be subject to availability.

  • You are responsible for determining:
  • what Services you require;
  • if you are an organisation with an Account to manage multiple users: who will be a User of the Services, each User’s access level and whether to revoke a User’s access to the Services at any time for any reason via your Account; and
  • where a Subscriptions cover Services that have set commencement dates and/or have limited capacity and may be subject to availability as set out on the App or Site, purchasing the applicable Subscription prior to the applicable commencement date and/or before it reaches capacity.
    • The Services may provide you and your Users with access to related services including a Facebook forum controlled by Foxley (Third Party Forums) on which Users are able to communicate. Where Users are given access to such Third Party Forum(s), Foxley asks Users to limit their discussions to topics which are relevant to Foxley’s Site and Services. You must ensure that you and each User acknowledges and agrees:
  • Foxley reserves the right to remove any posts submitted by Users to any Third Party Forums which at its sole discretion deems to be inappropriate and will do so in accordance with the forum guidelines available at http://foxley.com/community-guidelines/.
  • you (and each User as applicable) are not permitted to post any content containing foul language, illegal material, spam, racial or religious ranting or discrimination or defames another User.
    • Foxley may promote third party products and services via the Site (Promoted Services). You acknowledge and agree Foxley may receive a commission from applicable third parties if you sign up or otherwise purchase Promoted Services.
    • It is your responsibility to keep your Account details and password confidential. You are liable for any and all activity on your Account. You agree you:
  • will not disclose your password to any third party and that you will take sole responsibility for any activities or actions under your Account, whether or not you have authorised such activities or actions; and
  • will notify Foxley immediately if you are aware of any unauthorised use of your Account.
  1. DATA
    • Foxley will use commercially reasonable efforts to protect the information you submit via the Services, including but not limited to User Information or information otherwise collected by Foxley (collectively referred to as Data).
    • You grant Foxley a non-exclusive, worldwide licence to any Intellectual Property rights subsisting in your Data in order to use, copy, transmit, reference, disclose or back-up your Data or otherwise for purposes including:
  • to enable you and each User to access and use the Services;
  • for Foxley’s administrative, support and training purposes; and
  • in accordance with these Terms or as otherwise required for Foxley to provide the Services.
    • You represent and warrant that:
  • any and all Data you submit (or a User submits) via the Services are your sole and exclusive property; or
  • you have secured any and all authorisation and rights to use the Data as applicable under the relevant laws.
    • Title to and all Intellectual Property rights in any Data you input into the Services remains your property. However, your access to the Data and continued use of the Services is contingent on payment of your Subscription Fee for your Subscription.
    • You acknowledge and agree that:
  • Foxley is not responsible for any corruption or loss of any Data if such corruption or loss is due to an act or omission by you, your employee(s), contractor(s), agent(s), any User or other third party; and
  • you are responsible for complying with all laws and regulations regarding the use and disclosure of Data including but not limited to the Privacy Act 1988 (Cth), the Spam Act 2003 (Cth) and any other requirements under Australian law.
  1. SECURITY
    • Foxley has implemented and will maintain security systems for the transmission of Data that are understood in the industry to provide adequate security for the transmission of such information over the internet. These measures are intended to prevent unauthorised Data infiltration or security breaches. Foxley does not guarantee the security of any Data you store on your servers, the servers of your contractors, your service providers or User Devices.
  2. PAYMENT
    • You agree to pay the Subscription Fee required to enable you to access and use the Content and Services.
    • You will be required to make payment of the applicable Subscription Fee by way of credit card via our third party payment processor (Payment Processor). The initial payment will be processed upon receipt of the request for the Services. Each further payment will be automatically charged to your credit card (details of which are provided when you purchase a Subscription) on the relevant periodic basis. You will not have an Account or access to the Services or any Content until Foxley receives the applicable fees.
    • You acknowledge and agree that:
  • to maintain your Subscription, payment to Foxley will be made in advance on a monthly payment date from your nominated credit card; and
  • if Foxley or its Payment Processor is unable to take payment, Foxley or its Payment Processor will attempt to contact you via email as soon as it becomes aware of the payment failure. Until payment is confirmed, your Account will be locked and you and any Users will not be able to access or use the Content or Services.
    • When you make a payment by way of credit card, you warrant that the information you provide to Foxley or its Payment Processor is true and complete, that you are authorised to use the credit card to make payment and that your payment will be honoured by your card issuer.
    • Where payment is successful, Foxley will issue you a tax invoice setting out the Subscription Fees paid by you.
    • All amounts are stated in US dollars and unless otherwise stated, all amounts are exclusive of any applicable government taxes or charges.
    • Foxley’s pricing structure or payment methods may be amended from time to time at its sole discretion.
  1. CANCELLATION AND TERMINATION
    • You may terminate your Account and/or your access to the Services at any time via contacting Foxley using the details at the bottom of these Terms or as set out on the App and Site.
    • You must give Foxley written notice 3 Business Days prior to the date your Subscription Fee is due to be debited to ensure that your Account is terminated at the end of the billing cycle, and automatic payments will cease at the end of the month that Foxley is notified of your intention to terminate.
    • It is your responsibility to retrieve all necessary Data from your Account prior to termination.
    • Foxley may terminate these Terms and your Account immediately, in its sole discretion, if:
  • you breach any provision under these Terms or any Foxley Policies and do not remedy the breach within a reasonable period after receiving notice of the breach if the breach is capable of being remedied;
  • Foxley reasonably suspects that you are attempting to decipher, decompile, disassemble or reverse engineer the Platform;
  • Foxley considers that a request for Services is inappropriate, improper or unlawful;
  • you fail to provide Foxley with clear or timely instructions to enable Foxley to provide you with the Services;
  • Foxley considers that the working relationship between the Parties has broken down including a loss of confidence and trust;
  • there is an Insolvency Event; or
  • for any other reason outside Foxley’s control which has the effect of compromising Foxley’s ability to provide you with the required Services within a required timeframe.
    • On termination of these Terms, Foxley may retain your documents (including copies) as required by law or regularity requirements. Your express or implied agreement to these Terms constitutes your authority for Foxley to retain or destroy documents in accordance with the statutory periods, or on termination of these Terms.
  1. REFUND
    • Subject to your rights under Australian Consumer Law or equivalent consumer protection laws in your country, Foxley may provide you with a refund of any Subscription Fees on a case-by-case basis and solely at Foxley’s discretion for limited circumstances including but not limited to if there is a major fault with the Services.
  2. YOUR OBLIGATONS
    • You warrant that all information including User information provided to Foxley is true, accurate and complete.
    • You acknowledge and agree that you are responsible for how Users use the Services and that:
  • each User uses the Services at their own risk;
  • the Services will only be used for your or the User’s own lawful personal or business purposes in accordance with these Terms;
  • all usernames and passwords required to access the Services are kept secure and confidential;
  • if there is any unauthorised use of your passwords or any other breach of security, you will immediately notify Foxley of such activity;
  • it is your responsibility to determine that the Services meet your and each User’s needs and are suitable for the purposes for which the Services are used;
  • you are responsible for obtaining any consents, licences, permits and permissions from other parties as required for the Services to be provided, at your cost, and for providing Foxley with the necessary consents, licences and permissions; and
  • the reliability of the Services is dependent upon each User’s Device operating system, a User’s internet connection and choice of web-browser.
    • You acknowledge and agree that each User:
  • is authorised to use the Services and to access any Data, User Information or other information they input into the Platform or provide to Foxley as required for the Services; and
  • will keep all usernames and passwords required to access the Services secure and confidential.
    • You may use the Platform on behalf of others or in order to provide services to others but if you do so you must ensure that you are authorised to do so and that all persons for whom or to whom services are provided comply with and accept all of these Terms that apply to you.
    • Foxley is not responsible to any person or entity other than you and nothing in these Terms confer, or purport to confer, a benefit on any other person or entity. If you use the Services on behalf of or for the benefit of any third party, including Users, you agree that:
  • you are responsible for ensuring that you have the right to do so;
  • Foxley does not warrant the fitness for purpose or suitability of the Platform for such third party’s purposes and third parties may not rely on Foxley for any purpose;
  • you are responsible for authorising any person who is given access to your Data, and you agree that Foxley has no obligation to provide any person or entity with access to such Data without authorisation from you and may refer any requests for access to the Data to you to address; and
  • you will indemnify Foxley, on first demand, against any and all claims, expenses, liabilities or losses arising out of or in connection with Foxley’s refusal to provide any persons with access to your Data in accordance with these Terms and Foxley making Data available to any person with authorisation from you.
    • You remain solely responsible for complying with all applicable laws. It is your responsibility to ensure that the storage of and access to your Data via the Site and the App comply with laws which are applicable to you, including any laws requiring you to retain records of your Data.
    • Each User must have their own safeguards and back up processes in place to recover from any failures or loss of Data which might occur whilst using the Services and protect the confidentiality of your and Users’ Data with suitable management procedures, as you may see fit.
  1. PROHIBITED USE
    • You acknowledge and agree that you will ensure each User does not:
  • use the Content or Services in any manner that is illegal or violates any applicable law or regulation;
  • attempt to circumvent or disable the Platform or any technology features or measures in the Platform by any means or in any manner;
  • attempt to modify, copy, adapt or reproduce the Platform or Content except as necessary to use it for normal operation;
  • attempt to decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for the Platform;
  • distribute, encumber, sell, rent, lease, sub-license, or otherwise transfer, publish or disclose the Platform to any third party (except as permitted under these Terms);
  • remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in or on the Content or Platform or used in connection with the Services;
  • use the Content, App, Site or Services in any manner to aid in the violation of any third party Intellectual Property, including but not limited to another’s copyrights, trade secrets and patents;
  • take any action that interferes in any manner with Foxley’s rights with respect to the App, Site or Services;
  • attempt to undermine the security or integrity of Foxley’s computing systems or where the Content, Platform, Site or any and all part of the Services is hosted by a third party, that third party’s computing systems and networks;
  • use, or misuse, the App, Site or Services in any way which may impair the functionality of the App, Site or Services or other systems used to deliver the Platform or impair the ability of any other user to use the App, Site or Services;
  • modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, sell or resell any Content or the Services;
  • attempt to gain unauthorised access to any materials including but not limited to Content, other than those to which you have been given express permission to access, or to the computer system on which the Platform is executed or Services provided;
  • transmit or input into the App, Site or Platform any files that may damage any other person’s Devices or the Platform, content that may be offensive or material or Data in violation of any law (including any content protected by copyright or trade secrets which you do not have the right to use); and
  • upload or otherwise transmit any User Content or post onto Third Party Forums any content that is offensive, pornographic, contains nudity or inappropriate language, contains racial or religious ranting or discrimination or defames another user of the Services.
    • Title, ownership rights and Intellectual Property rights in and to any content displayed on the App, Site or Services, or accessed through the App, Site or Services, are the property of the applicable content owner and may be protected by applicable copyright or other law. These Terms give you no rights to such content.
    • You acknowledge that any breaches of this clause may lead to termination of these Terms, suspension of your Account and any access to Foxley’s Content and Services.
  1. PRIVACY POLICY
    • Foxley agrees to comply with the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines as amended from time to time, as set out in our Privacy Policy which is available on our Site.
    • You will be taken to have read the terms of the Privacy Policy when you accept these Terms.
  2. INTELLECTUAL PROPERTY
    • If you hold a current Subscription, Foxley grants you a personal, non-exclusive, non-transferable, limited and revocable licence to use the Content for your personal or non-commercial purpose. All other uses are prohibited unless you obtain Foxley’s prior written consent.
    • Title to, and all Intellectual Property rights in the App, Site or Services and any documentation relating to the Services remain the property of Foxley and its successors and permitted assigns. Your right to use such Intellectual Property is subject to these Terms.
    • You grant Foxley a non-exclusive, worldwide, royalty-free, irrevocable licence to use, copy, transmit, store, and back-up your information including but not limited to: (i) User Information; and (ii) any Intellectual Property which subsist in any material you provide in connection with your or a User’s Account or otherwise make available via the App, Site or Services (User Content) for the purposes of enabling you to access and use the Platform, for other users of the Services to view your User Content and for any other purpose related to provision of Services to you and the performance of Foxley’s obligations under these Terms.
    • It is your responsibility to maintain copies of all Data and any User Content which are inputted into or otherwise transmitted via the Platform and Services. Foxley will endeavour to prevent loss of Data or any User Content, however, as the Platform uses cloud services, provided by third parties, Foxley does not make any guarantees that there will be no loss of Data and does not represent or warrant that access to the Services, the Data or an Account will be available without interruption.
  3. UPDATES, SUPPORT AND AVAILABILITY OF SERVICES
    • Foxley may, from time to time, issue updates to the Platform and Content available via the Services. Foxley will endeavour to provide you with prior notification via email or the Platform of any major updates and you consent to such automatic updating and, unless additional terms accompany the applicable updates, agree that these Terms will apply to any and all such updates.
    • The Platform may contain automatic communications features which relay certain non-personally identifiable information to Foxley in connection with the operation of the Platform such as your Account settings. Foxley may use this information for research purposes including statistical analysis of aggregate customer behaviour.
    • Foxley may provide limited support to you and a User subject to your Subscription as set out on the App and Site. If you require technical support, please contact Foxley through one of our support channels offered on the Site or using the contact details at the end of these Terms.
    • Whilst Foxley intends that access to the Platform via the Site and the App should be available on a full-time basis, it is possible that the Site or the App is unavailable to due to maintenance or other development activity.
  4. FEEDBACK AND DISPUTE RESOLUTION
    • Your feedback is important to Foxley. Foxley seeks to resolve your concerns quickly and effectively. If you have any feedback or questions about the Services, please contact any member of Foxley’s staff or use the contact details at the end of these Terms.
    • If there is a dispute between the Parties in relation to these Terms, the Parties agree to the following dispute resolution procedure:
  • The complainant must tell the respondent in writing, the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute. The Parties agree to meet in good faith to seek to resolve the dispute by agreement between them (Initial Meeting).
  • If the Parties cannot agree how to resolve the dispute at the Initial Meeting, any Party may refer the matter to a mediator. If the parties cannot agree on who the mediator should be, the complainant will ask the Law Society of Victoria to appoint a mediator. The mediator will decide the time and place for mediation. The Parties must attend the mediation in good faith to seek to resolve the dispute.
    • Any attempts made by the Parties to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of the Parties under these Terms, by law or in equity.
  1. AUSTRALIAN CONSUMER LAW
    • Certain legislation including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth), and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of Services by Foxley to you which cannot be excluded, restricted or modified (Statutory Rights).
    • Nothing in these Terms removes your Statutory Rights as a consumer under the ACL. You agree that Foxley’s liability for Services provided to consumers is governed solely by the ACL and these Terms. Foxley excludes all conditions and warranties implied by custom, law or statute except for your Statutory Rights.
    • Except for your Statutory Rights, all material and work is provided to you without warranties of any kind, either express or implied, and Foxley expressly disclaim all warranties of any kind including but not limited to implied warranties of merchantability and fitness for a particular purpose.
    • If you are a consumer as defined in the ACL, the following applies to you: We guarantee that the services we supply to you are rendered with due care and skill; fit for the purpose that we advertise, or that you have told us you are acquiring the services for or for a result which you have told us you wish the services achieve, unless we consider and disclose that this purpose is not achievable; and will be supplied within a reasonable time. To the extent we are unable to exclude liability; our total liability for loss or damage you suffer or incur from our services is limited to us re-supplying the services to you, or, at our option, us refunding to you the amount you have paid us for the services to which your claim relates.
  2. LIMITATION OF LIABILITY AND DISCLAIMERS
    • Foxley and the User agree that Foxley’s liability for the Services provided via the App, Site or Services is governed solely by the Australian Consumer Law to the extent applicable, and these Terms.
    • You acknowledge that whilst Foxley will take reasonable steps to ensure that the Services will be fit for the purposes as advertised, Foxley gives no guarantees that:
  • the Services will meet your requirements as the functionality of the Platform is dependent upon configuration with the end user system and other components;
  • the App, Site or Services will work in each of your desired use case scenarios; and
  • the App, Site or Services can be executed on every operating system, as it is impossible to test each variant.
    • The Services use third party hosting services which are provided without any sort of warranties, and Foxley cannot ensure that these third party hosting services are provided free of defect or without interruption.
    • Foxley does not warrant that use of the App, Site or Services will be uninterrupted or error free. The operation of the App, Site or Services is dependent on public telephone services, computer networks and the internet, which can be unpredictable and may from time to time interfere with the use of the Services. Foxley accepts no responsibility for any such interference or prevention of your or a User’s use of the Services.
    • You acknowledge and agree that while the information and materials including but not limited to Content provided on or via the App, Site or Services or otherwise provided to you by Foxley is provided in good faith on an “as is” basis, Foxley and its directors, officers, employees, contractors and agents accept no responsibility for and make no representations or warranties to you or to any other person as to the reliability, accuracy, currency or completeness of the information in such materials or information generally contained or produced via the App, Site or Services. You are solely responsible for (and where applicable you must ensure each User understands they are responsible for) determining the suitability of any Services and any Content and you rely on and information provided to you through the App, Site or Services at your own risk.
    • Foxley makes no representations regarding, and accepts no responsibility for, the suitability, accuracy or legality of any forms or results produced by the Services or any information contained in any Content. Further, Foxley assumes no obligation to notify you of any changes in the suitability, accuracy or legality of the forms or results produced by the Services or information contained in any Content.
    • You acknowledge and agree that any information, insight or guidance provided through the App, Site or Services is for general information purposes only. It does not take into consideration your (or a User’s) personal circumstances and is not intended to be advice.
    • All risk arising out of the use or performance of the Services remains with you. You understand and agree that the use of the Services, material or data downloaded or otherwise obtained through the use of the Services, is at your own discretion and risk and that you will be solely responsible for any infections, contaminations or damage to your computer, system or network. Foxley is not responsible or liable for delays, inaccuracies, errors or omissions arising out of your use of the Services, any third party software or operating system.
    • To the maximum extent permitted by applicable law, Foxley and its licensors disclaim all warranties, express or implied, including, without limitation, any implied warranties of merchantability, fitness for a particular purpose and non-infringement of third party intellectual property rights or lack of viruses, for the Platform. In no event will Foxley or its licensors be liable for any consequential, incidental, indirect, special, punitive, or other damages whatsoever arising out of these Terms or the use of or inability to use the Platform, even if Foxley has been advised of the possibility of such damages.
    • You acknowledge that Foxley may pursue any available equitable or other remedy against you as a result of your failure to ensure that each and every User complies with all provisions of these Terms.
    • Foxley or its licensors’ liability for breach of any of its obligations under these Terms for the Services, or breach of any warranty implied by law, will be limited, to the extent permitted by law, to the total price paid for the Subscription to use the Services. Foxley’s total liability to you for all damages in connection with the Services will not exceed the price paid by you under these Terms for the Services. The foregoing limitations, exclusions and disclaimers will apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
    • You acknowledge and agree that Foxley will not be liable for any non-compensatory damages including punitive, aggravated, multiple, exemplary, liquated or any other non-compensatory damages or the consequences of non-payment.
  1. INDEMNITY
    • You will be liable for and agree to indemnify, defend and hold Foxley harmless from and against any and all claims, liabilities, suits, actions and expenses, including costs of litigation and reasonable legal costs, resulting directly or indirectly from:
  • any information that is not accurate, up to date or complete or is misleading or a misrepresentation;
  • any breach of these Terms;
  • any misuse of the Services, from or by you, your employees, contractors or agents or a User;
  • any breach of law, regulation or licence by you or a User;
  • any claim brought by a third party including any User against a Party arising out of the App, Site or Services;
  • any claim by any third party, including a User that:
  1. the grant, or exercise of any licence, of any Intellectual Property rights under these Terms; or
  2. the supply or use of the App, Site or Services,

infringes the Intellectual Property rights of any person.

  • You agree to co-operate with Foxley (at your own expense) in the handling of disputes, complaints, investigations or litigation that arise as a result of your use of the App, Site or Services including but not limited to disputes, complaints, investigations or litigation that arises out of or relates to incorrect information you have given to
  • The obligations under this clause will survive termination of these Terms.
  1. NOTICE
    • Any notice required or permitted to be given to you under these Terms will be addressed to you at the email address provided by you on the Registration Form.
    • Any notice required or permitted to be given to Foxley under these Terms must be addressed to Foxley using the contact details at the end of these Terms.
  2. RIGHTS OF THIRD PARTIES
    • Any person or entity who is not a party to these Terms has no right to benefit under or to enforce any of these Terms.
  3. ASSIGNMENT
    • These Terms are personal to you. You must not assign or deal with the whole or any part of your rights and/or obligations under these Terms without the prior written consent of Foxley.
    • Any purported dealing in breach of this clause is of no effect.
  4. WAIVER OR VARIATION OF RIGHTS
    • Any failure or delay by a Party in exercising a power or right (either wholly or partially) in relation to these Terms do not operate as a waiver or prevent that Party from exercising that power or right or any other power or right.
    • A Party is not liable to any other Party for any loss, cost or expense that may have been caused or contributed to by the failure, delay, waiver or exercise of a power or right.
  5. POWERS, RIGHTS AND REMEDIES
    • Except as expressly stated to the contrary in these Terms, the powers, rights and/or remedies of a Party under these Terms are cumulative and are in addition to any other powers, rights and remedies of that Party. Nothing in these Terms merges, extinguishes, postpones, lessens or otherwise prejudicially affects any power, right, or remedy that a Party may have at any time against the other Party to these Terms or any other person.
  6. FORCE MAJEURE

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

  1. CONSENTS AND APPROVALS
    • Where these Terms provide that a Party may conditionally or unconditionally give or withhold any consent or approval in relation to any matter in these Terms, that Party may in its absolute discretion, and without being obliged to give reasons for doing so, withhold any consent or approval or give consent or approval conditionally or unconditionally.
  2. FURTHER ASSURANCE
    • Each Party must from time to time and in a timely manner do all things reasonably required of it by another Party to give effect to these Terms.
  3. ENFORCEABILITY
    • If any provision of these Terms is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Terms and the remainder of the provision in question will not be affected.
  4. ENTIRE AGREEMENT AND UNDERSTANDING
    • The date of these Terms is the date that these Terms are accepted by you.
    • In respect of the subject matter of these Terms:
  • these Terms contain the entire understanding between the Parties; and
  • all previous oral and written communications, representations, warranties or commitments are superseded by these Terms and do not affect the interpretation or meaning of these Terms.
  1. GOVERNING LAW AND JURISDICTION
    • These Terms are governed by the laws of Victoria and the Commonwealth of Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Victoria.
  2. DEFINITIONS

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

  • is unable to pay its debts as they fall due;
  • makes or commences negotiations with a view to making a general rescheduling of its indebtedness, a general assignment, scheme or arrangement or composition with its creditors;
  • takes any corporate action or any steps are taken or legal proceedings are started for:
  • its winding-up, dissolution, liquidation or re-organisation, other than to reconstruct or amalgamate while solvent on terms approved by the other Party (which approval will not be unreasonably withheld); or
  1. the appointment of a controller, receiver, administrator, office manager or trustee; or
  • seeks protection or is granted protection from its creditors, under any applicable legislation.

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

 

For any questions or notice, please contact Foxley at:

Foxley Software Pty Limited (ABN 48 600 688 702)

Level 4, 405 Collins Street

Melbourne VIC 3000

Phone: + 61 (3) 9039 9912

Email:  hello@foxley.com

 

Last update: 28 October 2016