Clinic Mastery Pty Ltd ACN 610 545 956 trading as Allie, a company incorporated in Australia (Allie/we/us) provides a software platform (Platform) for third parties (you/your) to access and use Services via the Platform.

You agree that you shall be bound by these terms and conditions (Agreement) in relation to your use of the Platform, our provision of the Platform and our provision of the Services as set out in this Agreement. Please read this Agreement carefully as it contains important information about your rights and responsibilities when using the Platform and Services.

Without limiting the way in which you may become bound by this Agreement, you will be deemed to have accepted and will be bound by the terms and conditions of this Agreement by the earlier of signing a document agreeing to be bound by this Agreement, and/or by checking the “I agree to the Terms and Conditions” checkbox and/or clicking the “Sign Up” button on your computer screen to electronically indicate your acceptance of this Agreement, or by proceeding with the any use of the Services. This Agreement commences on and from the date you agree to its terms.

1 DEFINITIONS

Account means an account that you set up and complete for the purposes of accessing the Platform and/or using our Services.

Allie Data means data created on behalf of a Subscriber using Subscriber Data and includes Benchmarking Data where the Subscriber elects to obtain Benchmarking Services from Allie.

API(s) means the Service’s application programming interfaces through which we connect to you to access and use (solely for the purposes of delivering the Services) Subscriber Data.

Authorised Users means any person who, on your behalf and authority, is granted access to the Platform and Services.

Benchmarking Data means data created by collating and aggregating Subscriber Data (on a deidentified basis) with other subscriber data for the purposes of creating data by which the Subscriber may benchmark their practice against similar practices.

Confidential Information means:

(a)            all information that is identified as confidential at the time of disclosure by the Disclosing Party (being a party who discloses Confidential Information) or should be reasonably known by the Receiving Party (being a party who receives Confidential Information) to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure;

(b)            all Subscriber Data;

(c)            all Allie Data;

(d)            all Allie Technology (as defined in this Agreement).

Confidential Information shall not include information that the Receiving Party can demonstrate:

(i)              was rightfully in its possession or known to it prior to receipt of the Confidential Information;

(ii)             is or has become public knowledge through no fault of the Receiving Party;

(iii)            is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or

(iv)           is independently developed by employees of the Receiving Party who had no access to such information.

Datafeed means the act of transferring a copy of the Subscriber Data from the Subscriber or the Third Party Applications to us via the API.

Evaluation Subscription means a Subscription without Subscription Fees on conditions set by Allie from time-to-time on the Site and the terms of this Agreement. An Evaluation Subscription may limit access to and functionality of, the Platform and/or Services.

Feedback means any suggestions, enhancement requests, recommendations, corrections or other feedback provided by a Subscriber or by any Authorised Users of the Services in relation to the Platform and/or Services.

Intellectual Property Rights means all intellectual property rights of any kind whatsoever throughout the world, including all present, future, registered and unregistered rights which subsist in copyright, trademarks, patents, designs and circuit layouts and includes rights in the Platform, Services and Allie Data.

Platform means the Allie platform which delivers the Services to you and includes the Subscriber Dashboard that allows you to manage your profile, access and view Allie Data and other services we provide through the Platform to you from time to time.

Services means the services we provide to you via the Platform from time-to-time which are better described on the Site and include the Benchmarking Services.

Site means the website located at the URL https://allieclinics.com and associated sub-pages, scripts, APIs, and source code that make up the website.

Subscriber means you, a subscriber to the Platform and Services and includes Authorised Users.

Subscriber Dashboard means a general user interface accessible to Subscribers via the Platform for the use of the Services.

Subscriber Data means any data or data files or other information of any type that we obtain from you via the API for the purposes of delivering the Services to you.

Subscription means the fee-based subscription to access our Platform and use our Services as specified on our Site and as agreed to you in the process of setting up an Account governed by the terms of this Agreement and your specific Subscription Licence.

Subscription Fees means the fees payable to Allie for the licence to access the Platform and use the Services in accordance with this Agreement.

Subscription Licence means your specific licence terms which detail the inclusions, exclusions, usage rights, limits of your licence and other rights that form part of your Subscription.

Subscription Term means the period of time you will have access to the Platform and use of the Services which, if not specified when you create an Account, is the time between the date you first use the Services and the date this Agreement is terminated in accordance with clause 7.

Taxes means taxes, levies, duties or similar governmental assessments of any nature, including, for example, any sales, use, GST, value-added, withholding, or similar taxes, whether domestic or foreign, or assessed by any jurisdiction, but excluding any taxes based on net income, property, or employees of Allie.

Third Party Applications means the applications that you use in your business that collect and store Subscriber Data that we access via our API (such as Xero and Cliniko).

Third Party Data means data, information or material made available to Subscribers (such as Third Party Data from freight service providers) via the Platform on the Third Party Terms.

Third Party Terms means the terms and conditions each Third Party makes available the Third Party Data via the Platform.

2 THE SERVICES

2.1           Subject to the terms and conditions of this Agreement, the provision of the Services constitute Allie’ only obligation to you. Allie will provide the Services in accordance with its obligations under laws and government regulations applicable to Allie’ provision of the services to its subscribers generally, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of technical or personal data, without regard to your particular use of the Services and subject to your use of the Services in accordance with this Agreement.

2.2           You agree that Allie may modify the Services at any time and discontinue the Services (or part thereof) at any time. Allie may also restrict your use of some or all Services.

2.3           You acknowledge and agree that:

(a)            Allie does not guarantee that the Platform and Services will always be accurate, reliable, or error-free; and

(b)            all Intellectual Property Rights which subsist in the Platform, including any Allie Data, other data, material, or information created by or on behalf of Allie and displayed or made available via the Platform, together with any adaptations, enhancements or new versions of the same (Allie Intellectual Property Rights) are the exclusive property of Allie.

3 CREATING AN ACCOUNT WITH ALLIE

3.1           You are required to create an online account on the Platform (Account) in order to use some or all of the Services.

3.2           When you create an Account with Allie you agree:

(a)            that the Account will be created using Allie’ online sign up process, or any other method specified by Allie from time to time;

(b)            to keep confidential and secure any password used to access the Account;

(c)            and you warrant that all information provided by you to Allie in the setup of the Account is true and correct in every detail; and

(d)            that you will only use the Account for the purposes of using the Services, and for no other purpose.

3.3           During the registration process, you may be asked to select a password for your account. You agree to keep your password confidential at all times and must not disclose it to any third parties. You agree to be fully responsible for activities that relate to your account or your password.

3.4           If you have reason to believe that your password has been obtained by someone else without your consent, you must inform us immediately. We may disable your account if this occurs. If a third party accesses your account because your credentials are compromised, we are not liable to you in any way. If you become aware of your credentials being compromised, you must advise us immediately.

3.5           We reserve the right to suspend or terminate your Account with us in the event of your credentials being compromised.

4 PLATFORM LICENCE

4.1           In consideration for the payment of Subscription Fees, Allie grants to you a non-exclusive, non-transferable, revocable licence (Licence) to:

(a)            access the Platform and use the Services; and

(b)            to allow your employees and personnel to access the Platform and use the Services (as Authorised Users) subject to the terms of this Agreement.

4.2           Notwithstanding clause 4.1, Allie may refuse to grant a Licence to any person, for any reason whatsoever in its sole discretion.

4.3           You may only sublicense or authorise your Authorised Users to access the Platform on the condition that they also agree to be personally bound by this Agreement (and will be deemed Users). A User may not otherwise sublicense, deliver, transfer or assign the Licence to any other person except with the written permission of Allie. Each User may be required to set up a separate Account with their own separate username and password and are, as far as they can apply, subject to the obligations in clauses 3.2, 3.3, 3.4 and 3.5 of this Agreement.

4.4           You are primarily responsible for the acts and omissions of all Authorised Users in relation to access to the Platform and use of the Services and you are primarily responsible for the compliance of Authorised Users with the terms of this Agreement.

4.5           You acknowledge that we may modify and update the Platform from time to time at our sole discretion. We will use reasonable commercial efforts to notify you of any changes or updates to the Platform which may materially interrupt your use of the Platform or access the Services.

5 EVALUATION SUBSCRIPTION

5.1           We may at our sole discretion offer you free trials for selected features of the Services or access to parts or all of the Platform. Once your free trial period ends, your ability to access the Platform and use the Services will terminate. Allie reserves the right to determine if you are eligible for a free trial and to discontinue any free trial without notice at our sole discretion. On termination of access to the Platform (including access to any Allie Data) and use of the Services will immediately cease.

5.2           A Subscriber may access the Platform and use the Service during the Evaluation Subscription, but only for its own benefit on an evaluation basis to determine whether to purchase an ongoing subscription to the Service and in accordance with the terms and conditions of this Agreement.

5.3           Allie may make available to Subscribers certain products, features, services, software, regions or cloud providers that are not yet generally available, including such products, features, services, software, regions or cloud providers that are labelled as “private preview,” “public preview,” “pre-release” or “beta” (collectively, Previews). You may access and use Previews solely for your internal evaluation purposes and in accordance with the terms and conditions that accompany such Previews.

6 SUBSCRIPTION FEES

6.1           All Subscription Fees are set out on the Site or notified to you when you create an Account. In relation to your Subscription, you will pay the Subscription Fees to us in the time and manner we specify from time-to-time commencing in the manner we specify when you create an Account.

6.2           All amounts payable to us under the Terms are provided by such merchant facility as we use from time to time (such as Stripe and PayPal) (Payment Processor) and are subject to the Payment Processor terms of service. By agreeing to these Terms, you agree to be bound by their terms of service, as the same may be modified by the Payment Processor from time to time.

6.3           As a condition of us enabling payment processing services through the Payment Processor, you agree to provide us with accurate and complete information about you, and you authorise us to share such info with the Payment Processor together with transaction information related to your use of the payment processing services provided by the Payment Processor.

6.4           Unless expressly specified to the contrary, all amounts payable under this Agreement (consideration) by you to us have been expressed to be exclusive of Taxes. You will, at the same time as paying the consideration to us, pay an additional amount on account of such Taxes, so that after deduction of such Taxes, we receive no less than the amount of the consideration.

6.5           Other than as expressly provided for in this Agreement, Subscription Fees are non-refundable.

6.6           Fees do not include Taxes. You are responsible for paying all Taxes.

6.7           Failure to pay any monies due to Allie within seven days of the due date for payment will constitute a breach of an essential term of this Agreement and, without limiting any remedies available to Allie, Allie may suspend performance of or access to the Services, Platform and Subscriber Dashboard and charge interest at the lesser of the rate of one and one half percent (1.5%) per month or part thereof and the maximum rate permitted by applicable law. You will reimburse us for all costs we incur in collecting overdue fees.

7 SUSPENSION AND TERMINATION

7.1           This Agreement commences at the earlier of:

(a)            your acceptance of the terms of this Agreement; or

(b)            the commencement date specified in the Subscription Term;

(c)            your first use of the Services,

and will continue until terminated under this clause 7 (Term).

7.2           Allie may terminate this Agreement at any time, and for any reason, by:

(a)            the provision of written notice to you (which may include notice via the Platform); or

(b)            permanently disabling or deactivating your access to the Platform.

7.3           Allie may suspend your use of the Platform and the Services, or any part thereof, at any time, and for any reason. Allie will however provide you with written notice (which may include notice provided via the Platform) if it suspends your use of the Platform or Services (or part thereof) and will advise you subsequently if and when such suspension is lifted.

7.4           This Agreement will automatically terminate at the end of the Subscription Term (if any).

7.5           If Allie suspends or terminates this Agreement under clauses 7.2 or 7.3 and if you have paid Subscription Fees for a Subscription Licence as at the date of termination or suspension, then we will refund you the balance of the Subscription Fees not expended on accessing the Platform and use of our Services.

7.6           Apart from where required by law, and without limiting Allie’ rights, Allie may refuse to provide a refund under paragraph (a) where the reason for the termination or suspension is due to:

(a)            a breach of this Agreement or any law by you;

(b)            an act described in clause 10.1;

(c)            Allie being required by a government agency to enact the suspension or termination; or

(d)            Allie reasonably considers such termination or suspension is required to avoid Allie breaching any law.

7.7           You may terminate this Agreement at any time, and for any reason, upon the provision of written notice to Allie, or by cancelling your Account, at which time access to the Platform and use of the Services will immediately cease.

7.8           Either party may terminate this Agreement immediately (or with effect from any later date that it may nominate) by written notice to the other party if one or more Insolvency Events occurs in relation to that other party. For the purposes of this clause, “Insolvency Event” means, in respect of a party (other than for the purpose of solvent reconstruction or amalgamation):

(a)            a receiver, administrator, manager or liquidator is appointed over the party’s undertaking or assets, or the party enters into any assignment, composition or arrangement with its creditors; or

(b)            the party is unable to pay its debts when due or is deemed unable to pay its debts under any law or suspends payment to its creditors;

(c)            the other party commits a material breach of any of its obligations under this Agreement and fails to remedy that breach 7 days of prior written notice of such breach.

7.9           On termination of this Agreement under this clause your access to your access to the Platform and Subscriber Dashboard and use of the Services will immediately cease.

7.10         Upon the termination of this Agreement by you or by Allie in accordance with this clause:

(a)            you and each Authorised User’s Account will be deactivated, and you and your Authorised Users will be unable to access the Platform;

(b)            you and each Authorised User must cease all use of the Services; and

(c)            you will pay Allie:

(i)              all Subscription Fees which are due under this Agreement;

(ii)             if you terminate this Agreement for convenience during the Subscription Term, the balance of the Subscription Fees calculated on a pro-rata basis between the date of termination and the last date of the Subscription Term (if any);

(iii)            all Subscription Fees which are otherwise payable under this Agreement (whether or not on termination); or

(iv)           all Subscription Fees which are due but remain unpaid as at the date of termination; and

(d)            you agree not to disparage or otherwise make any unfavourable statements or comments regarding us, our personnel, our clients, either directly or by implication, verbally or in writing.

7.11         We will retain Subscriber Data (including copies) for internal business purposes only including the provision of anonymous and deidentified Benchmarking Services to other subscribers. Your express or implied agreement to this Agreement constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on expiry or termination of this Agreement.

7.12         Termination of this Agreement will not affect any rights or liabilities that a party has accrued under it.

7.13         This clause 7 will survive the termination or expiry of this Agreement.

8 SUBSCRIBER DATA RETRIEVAL

8.1           Upon written notice to Allie, you will have up to seven (7) calendar days from termination or expiration of this Agreement to access the Platform solely to the extent necessary to retrieve Subscriber Data (Retrieval Right).

8.2           If you exercise your Retrieval Right, this Agreement shall continue in full force and effect for the duration of the Retrieval Right. Allie shall have no further obligation to make your Subscriber Data available after termination of this Agreement and shall thereafter promptly delete your Subscriber Data.

8.3           After the Retrieval Right period, you will have no further access to Subscriber Data and we will not be liable to you if your Subscriber Data is deleted by us.

9 ALLIE DATA

9.1           All content and information on the Platform (other than Subscriber Data and Third Party Data), including, but not limited to, Allie Data, Feedback, messages, information, text, music, sound, photos, graphics, video, maps, icons, software, code or other material, as well as the infrastructure used to provide such content and information, is owned by Allie or its third party licensors and forms part of Allie Data.

9.2           Allie either owns all right, title and interest (including all Intellectual Property Rights) in and to Allie Data or has a right to, by way of licence or other agreement, to Allie Data.

10 PROHIBITED USES

10.1         You must not use the Platform in violation of any law or regulation, or rights of any person, including intellectual property rights, rights of privacy or in any manner inconsistent with this Agreement or any other of our agreements to which you are subject.

10.2         You agree not to modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell or re-sell any information, software, code, products, or Services obtained from or through the Platform. Additionally, you agree not to:

(a)            use the Platform, Services or its contents for any commercial purpose, other than in accordance with your Subscription Licence and the terms of this Agreement;

(b)            use another person’s name, account, identity or password without permission, or use the Platform while impersonating another person;

(c)            access, monitor or copy any content or information of the Platform using any robot, spider, scraper or other automated means or any manual process for any purpose other than in accordance with the terms of this Agreement or your Subscription Licence;

(d)            analyse, reverse engineer, attempt to replicate the underlying ideas, algorithms and source code of the Platform;

(e)            use the Platform or any other technology in a manner that accesses or uses any information beyond what we allow under this Agreement; that changes our services; that breaks or circumvents any of our technical, administrative, process or security measures; that disrupts or degrades the performance of our services; or that tests the vulnerability of our systems or networks;

(f)             violate the restrictions in any robot exclusion headers on the Platform or bypass or circumvent other measures employed to prevent or limit access to the Platform;

(g)            use the Platform or Services in connection with any products, services or materials that constitute, promote or are used for the purpose of dealing in defamatory, obscene, pornographic, abusive or otherwise illegal or offensive content; spyware, adware, or other malicious code; counterfeit goods; items that are otherwise illegal; unsolicited mass distribution of email or multi-level marketing proposals; hate materials; hacking/surveillance/interception/descrambling equipment; or stolen products or items used for theft;

(h)            take any action that imposes, or may impose, in Allie’ discretion, an unreasonable or disproportionately large load on its server infrastructure;

(i)              use any Service to provide, or incorporate any Service into, any general purpose data warehousing service for the benefit of a third party;

(j)              deep-link to any portion of the Platform for any purpose apart from where expressly permitted by this Agreement or your Subscription Licence; or

(k)            attempt to modify, translate, adapt, edit, decompile, disassemble, or reverse engineer any software programs used by Allie in connection with the Platform or the Services (except to the extent specifically permitted by law).

11 SUBCRIBER DATA

11.1         You own all Intellectual Property Rights in your Subscriber Data you permit us to obtain via the Datafeed.

11.2         In consideration of Allie granting you (and your Authorised Users) access to the Platform and use of the Services, you expressly grant an irrevocable, perpetual, royalty-free, sub-licensable, assignable license to Allie and its affiliates to use, reproduce, modify, adapt, publish, translate and create derivative works from your Subscriber Data for the sole purpose of delivering the Services to you or as may be required by law.

11.3         You represent and warrant on an on-going basis that your Subscriber Data does not infringe the rights of any other person or body and complies with all applicable laws, regulations, codes and standards, including without limitation your obligations under the Privacy Act and any other laws or regulations governing personal information.

11.4         You are solely responsible for the accuracy, content and legality of all Subscriber Data.

11.5         To the extent that you have any moral rights (as that term is defined in the Copyright Act 1968 (Cth)) in your Subscriber Data you upload onto the Platform, then you waive all such moral rights.

11.6         You agree that you will not post, upload to, transmit, distribute, store, create or otherwise publish on the Platform, and you will ensure that your Subscriber Data and any other information or materials do not contain, any of the following (Infringing Content):

(a)            content that infringes, or may infringe, the Intellectual Property Rights or other rights of any person;

(b)            content that impersonates any person or entity or otherwise misrepresents your relationship with Allie or any other person;

(c)            content that is false, unlawful, misleading, libellous, defamatory, slanderous, obscene, pornographic, indecent, lewd, abusive, harassing or advocates harassment of another person, threatening, invasive of privacy, abusive, inflammatory, fraudulent or otherwise objectionable;

(d)            content that can reasonably be considered to be offensive, such as content that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual, or which incites such behaviour or action from others;

(e)            content that would constitute, encourage or promote, or provide instructions for the conduct of an illegal act or omission, any criminal activity, or violate the rights of any person or party in any country of the world;

(f)             content that has been solicited by an incentive or payment originating from a real estate agent or a representative of their agency;

(g)            unsolicited promotions or SPAM;

(h)            content which contains the private information of any person;

(i)              content which publishes an image or likeness of a person who has not consented to their likeness or image being published on the Platform;

(j)              content that is unrelated to the page of the Platform; and/or

(k)            content which contains viruses, malware or any other malicious software or data.

11.7         To the maximum extent permitted by law, Allie will have no responsibility or liability for your Subscriber Data or Infringing Content posted, stored or uploaded on the Platform, or for any loss or damage suffered by you or any other person as a result of the Platform storing, holding, or making available, your Subscription Data or Infringing Content or other members of the public.

11.8         Allie is under no obligation to review your Subscriber Data to determine its accuracy, truthfulness, right to use by you or third party rights.

11.9         You acknowledge that we engage and uses the services of third-party storage and security of the Subscriber Data. We make no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party product, or any transactions completed, and any contract entered into by us with any such third party.

11.10      We recommend that you refer to the third party’s website terms and conditions and privacy policy prior to entering into this Agreement. We do not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.

12 THIRD PARTY DATA

12.1         You agree that you shall not do any of the following unless (i) permitted by the terms of your Subscriber Licence or (ii) with the prior written consent of the relevant Third Party, either solely or jointly with or on behalf of any third party directly or indirectly:

(a)            reproduce or copy Third Party Data from the Platform or any other material sent or made available to you by us or a Third Party or another subscriber (Material) or create derivative works from, modify or in any way commercially exploit any of the Material;

(b)            distribute, transmit or publish any of the Material (including using it as part of any library, archive or similar service); or

(c)            create a database in electronic or structured manual form by downloading and storing all or any of the Material for any purpose whatsoever.

13 INTELLECTUAL PROPERTY

13.1         You agree that Allie or its suppliers retain all right, title and interest (including all Intellectual Property Rights) in and to the Platform and Services, all documentation and Software and any and all related and underlying technology and documentation and any derivative works, modifications, or improvements of any of the foregoing, including any Feedback that may be incorporated into Allie Data (collectively, Allie Technology).

13.2         Except for the express limited rights set forth in this Agreement, no right, title or interest in any Allie Technology is granted to you. Further, you acknowledge that the Services are offered as an online, hosted solution, and that you have no right to obtain a copy of the underlying computer code for the Platform or any Services, except (if applicable) for the Software in object code format.

13.3         Notwithstanding anything to the contrary in this Agreement, Allie may freely use and incorporate your Feedback into Allie’ products and services.

13.4         Notwithstanding anything to the contrary in this Agreement, Allie may collect and use Usage Data to develop, improve, support, and operate its products and services.

13.5         Allie may use and display Subscriber’s name, logo, trademarks, and service marks on Allie’ website and in Allie’ marketing materials in connection with identifying Subscribers as a customer of Allie. Upon your written request, Allie will promptly remove any such marks from Allie’ website and, to the extent commercially feasible, Allie’ marketing materials.

14 CONFIDENTIALITY & PRIVACY

14.1         Allie will keep confidential all information provided by you or on your behalf which you designate in writing as confidential and will only use or disclose such confidential information:

(a)            for the purpose of providing or procuring Services under this;

(b)            with your consent;

(c)            in anonymized and aggregated form; or

(d)            as may otherwise be required or permitted by law.

14.2         You must keep all of our content and processes that form the Platform confidential.

14.3         Both you and Allie agree to comply with all applicable privacy laws in dealing with any personal information or other identifying information provided by a Authorised User or a third party about an Authorised User (Personal Information). Both you and Allie must at all times collect, use, hold, destroy, and disclose Personal Information in accordance with each party’s respective privacy policy and applicable law.

14.4         By using the Platform or the Services, you agree to the terms of the Allie privacy policy. A copy of our privacy policy may be viewed on our website.

15 SUPPORT

15.1         If you require support in relation to your use of the Platform, or any of our Services, please contact our support team at allie@clinicmastery.com.

16 COMPLIANCE WITH THIRD PARTY LICENCES

16.1         The Platform may incorporate components licensed to Allie by third parties and you may have obligations to third parties under agreements with third parties whether in relation to your use of our Services or Your Data, which may be subject to their own end user licence agreements, terms and conditions (Third Party Licences).

16.2         You agree that the use of the Platform, in addition to this Agreement, will be governed by any terms and conditions specified by any Third Party Licence that applies to you and Subscriber Data.

16.3         You agree to be bound by and observe all terms and conditions of any Third Party Licence and acknowledge that any breach of a Third Party Licence will entitle Allie to terminate the Licence and exercise its rights under clause 7.

17 YOUR WARRANTIES

17.1         You represent, warrant and agree that:

(a)            there are no legal restrictions preventing you from entering into this Agreement;

(b)            all information and documentation that you provide to us in connection with this Agreement is true, correct and complete;

(c)            you have not relied on any representations or warranties made by us in relation to the Services (including as to whether the Services are or will be fit or suitable for your particular purposes), unless expressly stipulated in this Agreement;

(d)            the Services are provided to you solely for your benefit and you will not (or you will not attempt to) disclose, or provide access to, our Services to third parties without our prior written consent;

(e)            any information, advice, material, work and services (including the Services) provided by us under this Agreement does not constitute legal, financial, merger, due diligence or risk management advice;

(f)             you will be responsible for the use of any part of the Services by you and any users to who you grant access, and you must ensure that no person uses any part of the Services:

(i)              to break any law or infringe any person’s rights (including Intellectual Property Rights);

(ii)             to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted; and

(iii)            in any way that damages, interferes with or interrupts the supply of the Services;

(g)            you are not and have not been the subject of an Insolvency Event;

(h)            if applicable, you hold a valid ABN which has been advised to us; and

(i)              if applicable, you are registered for GST purposes.

18 YOUR ACKNOWLEDGMENTS

18.1         You acknowledge that complex software is never wholly free from defects, errors and bugs and subject to the other provisions of this Agreement, we give no warranty or representation that the Services will be wholly free from defects, errors and bugs.

18.2         You acknowledge that complex software is never entirely free from security vulnerabilities and subject to the other provisions of this Agreement, we give no warranty or representation that the Services will be entirely secure.

18.3         You acknowledge that the Services are designed to be compatible only with that software and those systems specified by us to you and we does not warrant or represent that the Services will be compatible with any other software or systems.

19 YOUR INDEMNITY

19.1         You indemnify and keep indemnified, Allie, its agents, employees and officers against all loss, cost, expense or damage which Allie, its agents, employees or officers suffer or incur, as a direct or indirect result of:

(a)            any misuse of the Platform and/or Services by you or your Authorised Users in breach of this Agreement;

(b)            your breach of this Agreement or violation of any law or Allie Intellectual Property Rights or Intellectual Property Rights in your Subscriber Data or other rights of a third party;

(c)            you breaching your obligations to Third Parties; or

(d)            any legal proceedings or any claim made against Allie by a third party, which arises directly or indirectly from any Infringing Content.

19.2         Any amount payable by you under the forgoing indemnity will be reduced to the extent that Allie caused or contributed to the relevant act or event giving rise to the indemnity.

20 WARRANTY

20.1         You acknowledge and agree that Allie has made no warranties that the Services will be error free.

20.2         Except as expressly set out in this Agreement, the Services, the Platform, the Allie Data and all services and support are provided “as is” and Allie makes no other warranties, express or implied, statutory or otherwise (other than those that cannot be excluded by law) including but not limited to warranties of merchantability, title, fitness for a particular purpose or non-infringement of third party rights.

20.3         Allie does not warrant that the use of the Services and Platform will be uninterrupted or error-free, nor does Allie review Subscriber Data for accuracy.

20.4         We provide no warranty or guarantee:

(a)            that any result or objective can or will be achieved or attained through the provision of the Services; or

(b)            as to the suitability of the Services or the content of the Allie Data for any purpose other than that specified on the Site, which we may interpret, and apply using its experience, skill and judgment, to provide the Services; or

(c)            that the Services or Allie Data will result in improved financial performance.

21 LIABILITY AND DISCLAIMER

21.1         You agree that Allie will not be liable or responsible for any failure in, or delay to, the provision of the Services or in Allie complying with its obligations under this Agreement where such failure or delay has arisen as a direct or indirect result of:

(a)            epidemic, pandemic, fire, earthquake, storm, flood, hurricane, inclement weather or other act of God, war, terrorism, explosion, sabotage, industrial accident or an industrial strike;

(b)            denial of service attacks, telecommunications failure, hardware failure or the failure of software provided by a third party to function in accordance with its specifications;

(c)            a significant demand being placed on telecommunications infrastructure, or on Allie’ services, which is above the usual level of demand, and which results in a failure of Allie’ software and hardware to function correctly or in a timely manner;

(d)            inaccurate or incorrect Subscriber Data (including incorrect freight fees);

(e)            loss of, or damage to, Subscriber Data;

(f)             the failure of any third party to fulfil any obligations to Allie or you (including any obligations of freight carrier services to you such as delivery times, lost or damage consigned goods or freight services generally); or

(g)            any other circumstances or event similar to the above which is beyond the reasonable control of Allie.

21.2         In the event any terms, conditions, representations or warranties are implied by statute, common law or equity into this Agreement which cannot be lawfully excluded (Prescribed Terms), such Prescribed Terms will apply, save that Allie’ liability for breach of any such Prescribed Terms will be limited, to the extent permitted by law, at Allie’ option, to any one or more of the following:

(a)            in the case of services, the cost of supplying the services again or payment of the cost of having the services supplied again; and

(b)            in the case of software or other goods, the cost of replacing the goods, supplying equivalent goods or having the goods repaired, or payment of the cost of replacing the goods, supplying equivalent goods or having the goods repaired

21.3         If Allie’ liability for breach of any Prescribed Terms are capable of exclusion, they are hereby excluded to the fullest extent permitted by law.

21.4         To the extent permitted by law, any conditions, warranties, guarantees, rights, remedies, liabilities and other terms implied or conferred by statute, custom or the general law that impose any liability or obligation on us are excluded under this Agreement.

21.5         To the extent permitted by law, Allie’ liability to you arising directly or indirectly under or in connection with this Agreement or otherwise in connection with or in any way relating to the Platform or any of the Services, and whether arising under any indemnity, statute, in tort (for negligence or otherwise) or on any other basis in law or equity, is limited as follows:

(a)            Allie excludes all liability for loss of revenue, loss of use, lost or inaccurate data, loss of goodwill, loss of customers, loss of capital, downtime costs, loss of profit, loss of or damage to reputation, loss under or in relation to any other contract, loss of data, loss of use of data, loss of anticipated savings or benefits, or any indirect, consequential or special loss, damage, cost or expense or other claims for consequential compensation, incurred by or awarded against you under or in any way connected with this Agreement or otherwise in connection with or in any way relating to the Platform or Services; and

(b)            Allie’ total aggregate liability (for damages or liability of any type) under or in any way connected with this Agreement or otherwise in connection with or in any way relating to the Platform or Services, is otherwise limited to the greater of:

(i)              AUD10.00; and

(ii)             the total of all Subscription Fees you have paid to us or are payable to us, in the prior 12 months.

22 AMENDMENTS

22.1         Allie reserves the right to revise and amend this Agreement in its discretion, as follows:

(a)            if Allie considers that the change is likely to benefit you or have a neutral or minor detrimental impact on you, it may make any changes immediately without notifying you except by publishing the amended Agreement (as applicable) on the Platform; and

(b)            if Allie considers that the change is likely to have a significant detrimental impact on you, it will make the change after it has notified you of the change (solely by using the email address you have provided) and will display a notice on the Platform describing the change.

22.2         Your continued use of the Platform after an amendment will mean that you agree to that amendment. You must stop accessing the Platform and cease using the Services if you do not agree to an amendment.

23 GENERAL CLAUSES

23.1         In the interpretation of this Agreement unless the context otherwise requires:

(a)            headings and words in bold type are included for convenience only and do not affect interpretation;

(b)            the words “includes” or “including” mean “includes without limitation” or “including without limitation”;

(c)            a reference to a word includes the singular and the plural of the word and vice versa;

(d)            a reference to a gender includes any gender;

(e)            if a word or phrase is defined, then other parts of speech and grammatical forms of that word or phrase have a corresponding meaning;

(f)             a term which refers to a person includes a person in any capacity, a body corporate, an unincorporated body (for example a society or association), a trust, a partnership, a sovereign state, a government or a government department or agency;

(g)            a reference to a document includes a reference to that document as amended, novated, supplemented, varied or replaced;

(h)            a reference to a recital, clause, paragraph, schedule, annexure or other part is a reference to an item of that type in this Agreement;

(i)              a reference to a party is a reference to a party to this Agreement and includes a reference to that party’s successors, personal legal representatives and permitted assigns;

(j)              a reference to a statute or regulation or a provision of a statute or regulation includes a reference to that statute, regulation or provision as amended or replaced, and a reference to a statute includes all regulations, proclamations, ordinances and by-laws made or issued under that statute; and

(k)            if an individual party to this Agreement consists of two or more persons, then those persons are bound both jointly and severally.

23.2         Any notice given under this Agreement must be in writing and must be signed by the party giving the notice, or alternatively must be given via functionality contained in the Platform. Unless a later time is specified in a notice, the notice takes effect from the time it is received. A notice is taken to be received:

(a)            in the case of a notice delivered by hand, when so delivered;

(b)            in the case of a notice sent by pre-paid express post, on the third clear Business Day after the date of posting;

(c)            in the case of a notice sent by email, at the time that the email is sent, unless the sender receives a notification that the email was delayed or not received; or

(d)            in the case of a notice sent via functionality contained in the Platform, at the time the notice was sent, but if the effect of paragraphs (a) to (c) above is that a notice is taken to have been received before 9:00am or after 5:00pm on a day which is not a Saturday, Sunday or public holiday in Melbourne, Western Australia, Australia (Business Day), or on a day which is not a Business Day, then the notice is taken to have been received at 9:00am of the next Business Day.

23.3         This Agreement may be executed by means of such third-party online document execution service as we nominate subject to such execution being in accordance with the applicable terms and conditions of that document execution service.

23.4         This Agreement may be executed in any number of counterparts that together will form one instrument.

23.5         Neither party is the partner, agent, employee or representative of any other party and neither party has the power to incur any obligations on behalf of any other party.

23.6         We will not be liable for any delay or failure to perform our obligations under this Agreement if such delay is due to any circumstance beyond our reasonable control.

23.7         You agree to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines.

23.8         You agree that we are able to send electronic mail to you and receive electronic mail from you. You release us from any Liability you may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to your system or any files by a transfer.

23.9         There are no other representations, promises, warranties, covenants or undertakings between the parties and this Agreement supersedes all previous agreements in respect of its subject matter and embodies the entire agreement between the parties.

23.10      A party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, this Agreement (including any question regarding its existence, validity or termination) (Dispute) without first meeting with a senior representative of the other party to seek (in good faith) to resolve the Dispute. If the parties cannot agree how to resolve the Dispute at that initial meeting, either party may refer the matter to a mediator. If the parties cannot agree on who the mediator should be, either party may ask the Western Australian Law Society to appoint a mediator. The mediator will decide the time, place and rules for mediation. The parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the parties. Nothing in this clause will operate to prevent a party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.

23.11      A provision of or a right created under this Agreement may not be waived except in writing signed by the party or parties to be bound by the waiver. No single or partial exercise by any party of any right, power or remedy under this Agreement will preclude any other or further exercise of that or any other right, power or remedy. The rights, powers or remedies provided in this Agreement are cumulative with and not exclusive of any rights, powers or remedies provided independently of this Agreement.

23.12      If any provision of this Agreement is judged invalid or unenforceable for any reason whatsoever by a court of competent jurisdiction, such invalidity or unenforceability (unless deletion of such provision would materially adversely affect one of the parties) will not affect the operation or interpretation of any other provision of this Agreement to the extent that the invalid or unenforceable provision will be treated as severed from this Agreement.

23.13      A party must not assign or deal with the whole or any part of its rights or obligations under this Agreement without the prior written consent of the other Party (such consent is not to be unreasonably withheld).

23.14      The parties acknowledge and agree that no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Agreement or part of it.

23.15      This Agreement will be construed in accordance with and will be governed by the laws in force in Western Australia, Australia. Each of the parties irrevocably submits to and accepts the exclusive jurisdiction of any of the Courts of Western Australia, Australia.