BETWEEN: BOARDCAVE.COM PTY LTD, ABN 27 154 901 425 a company incorporated and registered in Queensland, Australia ("Us, Our, We")
AND: The Customer / Brand ("You / Your")
A. Cavewire is the owner of the SaaS and agrees to provide you with the Services stated in the Plan under the terms of this Agreement.
B. You are the owner of the Merchant Website and agree to subscribe to the Plan under the terms of this Agreement.
C. The parties agree that this Agreement (including the Schedules) will prevail over the terms of the Plan in the extent of any inconsistency.
1. THE PLAN
1.1 You agree that the Plan you have chosen meets your needs at the Commencement Date and for the duration of the Term.
1.2 You may change Plans at any time using the SaaS or otherwise with our consent provided you pay any additional Service Fee(s) or charges from the start of the next Billing Period.
2. OUR OBLIGATIONS
2.1. We will use our best endeavours to maintain the Network and Host the Merchant Website in accordance with Good Industry Practice. We may update the Network as required at any time without notice to you.
2.2. We will use reasonable endeavours to ensure that the Services are available to you in accordance with Good Industry Practice, except where:
2.2.1. We have suspended the Services because you are in default of this Agreement (e.g. for non-payment of an invoice);
2.2.2. factors outside our reasonable control disrupt the Network (e.g. a DDoS attack or third party system failure); or
2.2.3. we are conducting Scheduled Maintenance or Remedial Maintenance.
2.3. Limitation of Liability:
2.3.1. We do not guarantee or warrant any search engine optimisation or ranking for the Merchant Website.
2.3.2. To the extent permitted by law, and without limiting the foregoing subject always to the Competition and Consumer Act, the Australian Consumer Law, and the Fair Trading Acts of each State and Territory in Australia, we do not warrant either the quality or standard of the Services provided under this Agreement, or the design, performance, use, utility, fitness for purposes or merchantable or acceptable quality of any software, service, product or thing for any particular purpose or at all, other than to the extent expressly represented in this Agreement.
3. YOUR OBLIGATIONS
3.1. During the Term, you agree that:
3.1.1. you will pay the Service Fees on time;
3.1.2. you will access the Services via the internet using the Login Codes we provide you;
3.1.3. you will keep the Login Codes strictly confidential and secure from third parties;
3.1.4. you will configure the SaaS to its requirements using the features and functionality made available through the SaaS (we may assist you with this but will not be responsible for configuration of the SaaS for you);
3.1.6. you will adopt our prescribed policies for use on the Merchant Website; and
3.1.7. we may access the Merchant Website (including your Data and Content) at any time without your prior consent.
3.2. Authorised Use: You may only use the Services on the Merchant Website for the Authorised Use. You must ensure that your officers and employees comply with this clause.
3.3. Authorised User Numbers: You must ensure that no more than the permitted number of Authorised Users access / use the Services during the Term.
4. DATA & CONTENT
4.1. Warranty: You are solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all Data and Content uploaded, collected or otherwise provided by you on the Merchant Website using the SaaS. You also warrant that you will comply in all respects with the Privacy Act during the Term.
4.2. Your Data / Content: We do not claim any intellectual property rights over the Data or Content you provide to the Merchant Website. All material you upload is yours. You agree to allow us to use, copy, modify, configure and integrate the Data, Content and Website Front-End Templates supplied by you for the purposes of this Agreement:
4.2.1. When uploading your Content, you agree: (a) to allow other internet users to view your Content; (b) to allow us to display and store your Content; and (c) that we can, at any time, review all the Content submitted by you to its Service.
4.2.2. While you retain ownership of the Data and Content you provide on the Merchant Website, by making the Merchant Website public, you agree to allow others to view your Content. You are responsible for compliance of Content with any applicable laws or regulations.
4.3. Removing Data: You can remove your Data or Content from the Network at any time by contacting us and requesting that we delete your Account. You will have the option to work with us to export your product data to a .CSV format for use across other systems.
4.4. Limited Licence: You agree to grant us (and our associated entities) a non-exclusive right and license to use the names, trademarks, product data, product inventory, product images, service marks and logos associated with your store to promote your products for sale both online and offline across the Cavewire network.
5. MERCHANT WEBSITE FRONT-END
5.1. Provision of Templates: You may:
5.1.1. supply us with your Merchant Website Front-End Template;
5.1.2. acquire your Merchant Website Front-End Template from us; or
5.1.3. acquire your Merchant Website Front-End Template from a third party provider.
5.2. If you supply the Website Front-End Template to Cavewire, you will be solely responsible for the appearance, functionality, performance and operation of the Merchant Website Front-End Template.
5.3. Online transaction fees: All payments processed on a Merchant Website Front-End will incur a 1% Cavewire transaction fee. This fee applies to all Merchant Website Front-End payments, including those processed by third party merchant gateways.
6. SERVICE FEES
6.1. Fees: You must pay the Service Fees set out in the Plan and as otherwise agreed in writing between the parties. Unless otherwise stated, Service Fees are exclusive of tax.
6.2. Variation: We may vary the Service Fees at any time during the Term on no less than 20 Business Day’s written notice to you. If we vary the Service Fees:
6.2.1. you will have the option to terminate this Agreement within the 20 Business Day notice period; and
6.2.2. you will not be entitled to any compensation or other remedy in the event of termination under.
If you do not terminate this Agreement under Clause 6.2.1, you will be deemed to have accepted the varied Service Fees as notified by us.
6.3. Payment: You may pay Service Fees by credit card, electronic funds transfer, direct debit, or in any other manner agreed with us.
6.3.1. Credit Cards: Where payment is made or taken by credit card, we are entitled to add a surcharge of up to 2.5% of the total amount due under any invoice. We may pass on and charge you any fees, levies or charges (including credit card charge back fees) we incur as a result of any credit card, direct debit, cheque or similar payment transaction failing or being declined.
6.3.2. Credit Chargebacks: While we will use our best endeavours to ensure we secure all monies payable, we are in no way liable for any losses you may receive as a result of your customers requiring a credit chargeback. We have fraud procedures in place but cannot be liable for customers who proceed with this.
6.4. Non Payment of Service Fees: We may block and/or suspend your access to the Services, if any Service Fees are unpaid or become overdue (whether in whole or in part). We may at our sole discretion recommence or restore your access to the Services if any overdue invoice for Service Fees is paid.
6.4.1. If we block and/or suspend your access to the Services, it may take up to 48 hours for the Services to be recommenced or restored.
6.4.2. If the Service Fees remain unpaid for 50 Business Days, we may terminate this Agreement and redeem any outstanding Service Fees from you using the SaaS.
6.5. Costs: Inflation cost increases will be capped at 3%. If we terminate this Agreement under Clause 6.4.3 we may pursue you for damages for breach and / or specific performance. If you default in payment of any Service Fees, you agree to indemnify us from and against all costs and disbursements incurred by us in pursuing the debt including our reasonable legal costs; and collection agency costs.
6.6. Interest on Late Payments: Interest on overdue Service Fees will accrue daily from the date when payment becomes due, until the date of payment, at the rate or rates prescribed from time to time under Sections 58 and 59 (as applicable) of the Civil Proceedings Act 2011 (Qld). Such interest will be calculated and invoiced monthly and shall be payable immediately upon invoicing by us.
6.7. Admin Fee: If any account remains overdue after 20 Business Day, then an amount of the greater of twenty dollars ($20) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200) will be levied for administration fees which sum shall become immediately due and payable.
6.8. Cancellation Fee: If you elect to cancel the Plan for any reason within the first six (6) months, you are required to pay for the recorded setup time at an hourly rate of $70 for early cancellation of the Plan. (The average setup time for all modules is 90 hours) This is term (6.8) is void if it’s due to a lack of service performance from our Cavewire team. You agree that any lack of service levels will be communicated clearly with no less than 3 warning emails sent within the 6 month setup period which will void any cancellation fee.
6.9. Hourly Rate: Any design or custom development work outside the agreed Plan will incur an hourly rate of $70. This fee will be quoted prior to this work being done.
7.1. Subject to Clause 8.2 below, if there is a fault which causes the Services to be unavailable at any stage during the Term ('Downtime'), we will refund you as follows:
7.1.1. we will refund 5% of the current month’s Service Fees for each 30 minute period that the Network and Hosting is not available;
7.1.2. Clause 7.1.1 will apply up to but not exceeding 90% of the current month’s Service Fees.
7.2. Downtime will be measured from the time you report the fault to us until the Network and Hosting are restored and the Merchant Website is able to transmit and receive data again.
7.3. You accept that occasionally Downtime arises and agree that you will not be entitled to any other compensation or payment by us in respect of Downtime.
8. ERRORS AND OMISSIONS
8.1. Material Errors: We will use our best endeavours to fix any material errors or omissions in the Services (at our cost) whenever such an error or omission is found in the course of our execution of the Services.
8.1.1. An error or omission is material if we determine (acting reasonably) that it is not minor and prevents the Services from satisfying the specifications of the Plan, any Legislative Requirements and/or the standards of Good Industry Practice.
8.2. We will not be liable to rectify any errors or omissions caused or partly caused directly or indirectly by or arising from:
8.2.1. any misinformation or direction provided by you;
8.2.2. your conduct or the conduct of any third party;
8.2.3. any undue duress, pressure or influence exerted by the Merchant upon Cavewire or its officers, employees, agents or subcontractors; or
8.2.4. any Force Majeure Event.
8.3. Rectification Claims: All rectification claims must be submitted to us in writing promptly upon discovering them. We may, at our option, choose to satisfy any claim for rectification of any defect or omission in the Services by either:
8.3.1. resupplying the Services at our cost; or
8.3.2. paying a third party approved by us to resupply the Services or to supply replacement Services hereunder, upon which we will be fully and effectually released and discharged from any further obligations in relation to such claim.
In no case shall the value of your claim for rectification exceed the total value of the Services Fees paid by you up to the date the rectification claim is made. All damage or expense over and above such amount will be your responsibility.
8.4. Delays: We are not liable to you for any delay or delays in the provision of the Services. We are not liable to compensate you for any delay in either replacing or remedying an actual or alleged defect or omission or in properly assessing or responding to a claim.
8.5. Consequential Loss: We are under no liability whatsoever to you for any indirect, special or consequential loss and/or damage (including loss of profit, loss of revenue or other economic loss) you may suffer arising out of or in connection with any Services or any defect or omission arising under this Agreement.
8.6. Access: You must give us reasonable access to any premises or property (including to devices via screen sharing) required for to fully and properly investigate and assess your claims of any error or omission.
8.6.1. We may decline any claim which does not comply with (or is covered by) this Agreement.
8.6.2. If a claim is made for Services that are found not to be defective by us, we will give you notice that the claim is declined and you will be responsible for our reasonable costs of receiving, processing, assessing and declining your claim.
8.6.3. We may invoice you for any such costs incurred by us and you must pay the invoice within five (5) Business Days of the date of the invoice.
9.1. If the SaaS, Hosting Service or the Merchant Website is the target of a DDoS or any other electronic attack or threat, we may, at any time and without giving prior notice to any person, take such protection and/or mitigation measures as it in its sole discretion considers reasonably necessary, including:
9.1.1. suspending the SaaS, the Merchant Website or any other Service;
9.1.2. moving the SaaS, Merchant Website and/or Data to a quarantine server;
9.1.3. implementing access control lists; and/or
9.1.4. applying IP address filtering and/or blocking.
9.2. If we elect to take the measures described in Clause 11.1, we may continue them until such time as we consider that the attack or threat is eliminated, avoided or otherwise dealt with.
10. HELP DESK SUPPORT
10.1. We will provide the you with the following support during the Term:
10.1.1. Help Desk Support for the SaaS and Hosting;
10.1.2. Scheduled Maintenance; and
10.1.3. Remedial Maintenance.
10.2. Depending on the Plan you have chosen, we may also provide you with Help Desk Support for the Merchant Website.
10.3. You may access Help Desk Support via any email address, phone number, website or other contact method designated by us. We will use our best endeavours to respond to any Help Desk Support enquiries or reports in a timely manner but is otherwise not bound to respond or to rectify any defects, errors, threats or other issues arising within any particular timeframe.
11. PROFESSIONAL SERVICES
11.1. Authority: In order to provide the Professional Services, you authorise us (including any of our employees & agents) to access and manipulate Data if in our sole opinion it is reasonably necessary to provide the Professional Services. We will provide the Professional Services in accordance with the stages and milestones agreed in writing with you.
11.2. Completion: The Professional Services will be completed when they are fully performed and all stages and/or milestones and Acceptance Testing therefor are passed. Upon completion of the Professional Services, we will be under no obligation to provide additional Professional Services.
11.2.1. Once completed we will be under no further obligation to maintain and repair, update, upgrade or add to any Work completed or created under this agreement.
11.3.1. If you require any variations to the agreed Professional Services (including but not limited to changing the scope of such services, changing Acceptance Testing criteria, or changing stages or milestone dates for completing any Work), you must submit an application to us to make the variations and shall include full details of the variations requested.
11.3.2. Upon receipt of such application, we will prepare and provide you with a quotation outlining the costs of the variation and any additional conditions for accepting and performing the variation required by us.
11.3.3. You must accept or reject the quotation within the time limits prescribed therein or, if the quotation is not expressed to lapse or expire on a particular date, within five (5) Business Days of receipt of the quotation from us. Once you accept our quotation, the Professional Services may be varied as set out in this Agreement.
12.1. Protection of Information: Each party will protect the other's Confidential Information from unauthorised dissemination and use the same degree of care that such party uses to protect its own like information.
12.2. Non-Disclosure and Non-Use: Neither party will disclose to third parties the other's Confidential Information without the prior written consent of the other party. Neither party will use the other's Confidential Information for purposes other than those necessary to directly further the purposes of this Agreement.
12.3. Notification of Employees and Agents: You agree to make each of your employees or agents performing duties under this Agreement aware of this Agreement. If requested by us, you will require your employees or agents to execute a document that binds them to the same level of confidentiality contained in this Agreement.
13. INTELLECTUAL PROPERTY
13.1. Our IP: You acknowledge that we own all Intellectual Property in the SaaS, Hosting and Network. You are not permitted to copy, hack, reverse engineer, alter or disseminate the SaaS, Hosting or Network in any way and undertake not to allow any third party to do so.
13.2. Limited Licence: In exchange for the Service Fee, we grant you a limited non-exclusive licence to use the SaaS and the Work on the Merchant Website in accordance with this Agreement. This clause does not affect our subsisting and continuing moral rights in the SaaS or the Work.
13.3. Infringement: We may suspend or terminate the Services if any infringement of a third party's Intellectual Property occurs or is alleged in connection with the Merchant Website.
14.1. Acknowledgement: You acknowledge that you have chosen to use the Services under this Agreement freely and voluntarily without duress or pressure from us. You accept that you use the SaaS, Hosting and Network at your own risk.
14.2. Back Up / Disaster Management: You must regularly save all Data associated with the Merchant Website Front-End Templates in accordance with Good Industry Practice. You must implement and maintain a disaster management plan for your business. You acknowledge that you are solely responsible for rectifying any events which interrupt your ability to access and use the SaaS, Hosting or Merchant Website.
15.1. Warranty: You warrant to us that at the date of this Agreement:
15.1.1. you are not bankrupt, insolvent, in receivership or under administration, official management or liquidation (and you have not entered into an arrangement with your creditors);
15.1.2. you are able to carry on its business and perform its obligations under this Agreement;
15.1.3. you are adequately insured with a reputable insurer against all risks arising from this Agreement which a prudent person carrying on its business would insure against;
15.1.4. there are no legal proceedings, actions, prosecutions or investigations threatened, pending or commenced against you or your directors / shareholders;
15.1.5. all corporate authorisations and approvals necessary to enable it to enter into this Agreement have been obtained and remain in full force and effect;
15.1.6. all governmental requirements, authorisations, approvals and licenses which are necessary for you to legally carry on your business are in full force and effect; and
15.1.7. you have not withheld from us any document, information or other fact material to our decision to enter into this Agreement or to provide credit to you.
15.2. You must immediately notify us if any of the above warranties are no longer true and correct.
16. GENERAL INDEMNITY
16.1. You agree to indemnify us from and against any and all losses, loss of profits, claims, damages, actions, suits, demand, costs (including reasonable legal costs and disbursements on a full indemnity basis), interest, charges and expenses of any kind whatsoever, which we may incur due to:
16.1.1. any default or breach of this Agreement by you;
16.1.2. any unlawful, negligent, fraudulent or indictable act or omission by you or any of your officers, employees or agents;
16.1.3. the use or misuse of any Services by you; or
16.1.4. any Content or Data uploaded, processed or posted by you using the SaaS or otherwise on the Merchant Website or any other of your websites, except to the extent of any contributory negligence by us.
16.2. You agree to pay any and all indemnified amounts to us within 7 Business Days of receiving a written demand from us.
17. SECURITY FOR PAYMENT
17.1. Grant of Interest: 17.1.1. You agree to grant us a security interest over all Website Front-End Templates, Data and Content ('Collateral') we setup for you under this Agreement to secure payment of the Service Fees in accordance with the provisions of the Personal Property Securities Act ('PPSA').
17.1.2. We agree to take a security interest over the Collateral and may register the security interest on the Personal Property Securities Register ('PPSR').
17.1.3. At our request, you will do all such things necessary to perfect our security interest in the Collateral. We may retain and withhold possession of any Collateral to enforce our right to payment of the Service Fees.
17.1.4. Under section 275(7)(c) of the PPSA, you authorise the disclosure of information by a secured party under section 275(4) of the PPSA in response to any request for information from an interested person pursuant to sections 275(1) to (3) of the PPSA.
17.2. Name Changes: You will not (without prior written notice to us), change your name or initiate any change to any documentation registered by us under the PPSA.
17.3. Removal: We undertake to maintain the accuracy of the registered security interest and will remove any registration when you have paid all amounts owed to us in relation to the Services.
18. CREDIT CHECKING
18.1. You acknowledge that we may use your trade referees to assess your credit worthiness and to notify third parties of any defaults under this Agreement.
18.2. You consent to us being given a consumer credit report to collect overdue payment on commercial credit under section 21H of the Privacy Act.
18.3. You agree that the company credit card information you provide to us may be used to process recurring payments for the use of the services and modules detailed in this agreement (including the Services).
18.4. We may disclose information about you and/or your directors, officers and shareholders pursuant to any request by a third party for any reference or report concerning that person or entity. You will indemnify us against any claim arising from such disclosure hereunder.
19. DEFAULT AND TERMINATION
19.1. Default: Without prejudice to our other remedies (both at law and/or in equity), we may immediately suspend the supply of the Services in the event that:
19.1.1. you breach this Agreement; or
19.1.2. you become insolvent, convenes a meeting with your creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of your creditors. We will not be liable for any loss or damage you suffer because we have exercised our rights under this Clause.
19.2. Termination for Convenience: Either party may terminate this Agreement without giving any reasons for doing so, by giving not less than 4 months written notice (Termination Notice) to the other party. Once the receiving party receives the Termination Notice this Agreement will terminate at the expiry of the 4 months. We may suspend the provision of the Services at any time after the Termination Notice is received under this Clause. The termination of this Agreement by either party is without prejudice to any other right or remedy which they may have against each other at law or in equity.
20. DISPUTE RESOLUTION
20.1. If a dispute arises out of or relates to this Agreement, the parties to the dispute agree to attempt in good faith to settle the dispute by mediation administered by a mediator appointed under the Mediation and Conciliation Rules of the Institute of Arbitrators and Mediators of Australia as in existence at the time written notice is received by the parties.
20.2. A party claiming that a dispute has arisen must give written notice to the other parties to the dispute specifying the nature of the dispute.
20.3. On receipt of the notice specified in Clause 21.2, the parties to the dispute must within five (5) Business Days of receipt of notice seek to resolve the dispute.
20.4. If the dispute is not resolved within five (5) Business Days (or such further period as the parties agree), then the parties must mediate the dispute and adopt the provisions of, and the procedures noted in, the Mediation and Conciliation Rules of the Institute of Arbitrators and Mediators of Australia, being the Rules in existence at the date of the notice specified in Clause 23.2.
20.5. The terms of the Mediation and Conciliation Rules of the Institute of Arbitrators and Mediators of Australia, being the Rules in existence at the date of the notice specified in Clause 21.2, form part of this Agreement.
20.6. We will always have the right to institute legal proceedings in any court within the jurisdiction in order to collect payments due to us by you whether under this Agreement or any other agreement, without first being required to attend mediation or arbitration.
20.7. This Clause 20 will survive termination or expiration of this Agreement.
21. FORCE MAJEURE
21.1. We will not be liable for any failure or delay in the performance of our obligations under this Agreement where the failure or delay is caused by a Force Majeure Event.
21.2. If a Force Majeure Event arises, we will use all reasonable endeavours to promptly advise you of the details of the Force Majeure Event and its likely effect on the performance of the Services. We will take all steps reasonably necessary to recommence performance of the affected Services and minimise any delay caused by the Force Majeure Event.
EXECUTED AS AN AGREEMENT BY:
Executed for and on behalf of Boardcave.com PTY LTD by its authorised signatory.
Executed by and on behalf of the Customer by its authorised signatory
SCHEDULE 1 - DEFINITIONS & INTERPRETATION
The following definitions and rules of interpretation in this clause apply in the Agreement:
Agreement means this Services Agreement (and includes the Schedules).
Business Day means a day other than a Saturday, Sunday or public holiday in Queensland, Australia when banks in Brisbane are open for business.
Acceptable Use Policy means our Acceptable Use Policy published on the Cavewire Website.
Acceptance Testing means testing of the performance and functionality of Work using criteria agreed in writing between the parties or, in the absence of such agreement, as determined by us (acting reasonably).
Authorised Use means the use for which the Services are provided as stated in the Plan or as otherwise notified by us.
Authorised Users means the persons or entities who may use the Services as stated in the Plan or as otherwise notified by us. Cavewire Website means our website (see https://www.cavewire.com) or such other address notified by us.
Commencement Date means the first day of the Term.
Confidential information includes any materials or information provided by you to us which is not publicly known. Confidential information does not include information that: (a) was in the public domain at the time we received it; (b) comes into the public domain after we received it through no fault of ours; (c) we received from someone other than you without breach of our or their confidentiality obligations; or (d) we are required by law to disclose.
Content means any text, data, images, graphics, animations or other information or material or content to be published on the Merchant Website.
Data means information or data of any kind and includes Content.
DDoS means a "Distributed Denial of Service Attack".
Devices means any plant, equipment and devices used you or your Authorised Users to access and use the SaaS, and includes any software and source code installed on the Devices.
Force Majeure Event means any circumstance not within our reasonable control, to the extent that the circumstance, or its effect upon us, could not have been avoided, prevented or circumvented despite the exercise of reasonable diligence by us. Without limiting the foregoing, Force Majeure Events may include fire, sea accident, failure of machinery, or other accident, ice hindrance, flood, water shortage, or other natural disaster, vehicle or tonnage shortage or other traffic disturbance, strike, lockout, blockade, riot, revolution, mobilization or state of war, currency problems, import restrictions, or other government action.
Good Industry Practice means, in relation to any work or task required to be performed by a party, the practices, methods, specifications and standards of safety, design and performance which are generally expected of competent and experienced professionals who perform the same or similar work or tasks in the same or similar industry or profession.
Help Desk Support means help desk support provided at the time and in the manner published by us.
Hosting means storing the Merchant Website on the Network and making it available on the internet, and "Host" and "Hosted" have corresponding meanings.
Intellectual Property means the intellectual property rights held by us which exist in the Services, including:
a. patents, copyright, rights in circuit layouts, registered and unregistered designs, trade names, trade marks, domain names, reports and data generated under this agreement, improvements or suggestions for improvement, business names and any right to have confidential information kept confidential; and
b. any application or right to apply for registration of any of the rights referred to in paragraph (a) above.
Legislative Requirement Mean any requirement imposed by law, including to obtain any governmental or judicial approval or consent, to give a notice, to pay a fee charge or penalty, and to perform and act or omissions.
Login Codes means the login codes and authentication criteria provided by us to enable you to access the SaaS.
Merchant Website means your website Hosted by us using the SaaS and incorporating the Website Front-End Template, Data and Content.
Network means any hardware, software and network infrastructure owned by or licensed to us for the provision of the Services.
Plan means the SaaS and Hosting Service plan agreed between the parties.
Primer means our templating language for Website Front-End Templates.
Professional Services means professional services to be provided by us pursuant to the Plan or as otherwise agreed in writing between the parties. Without limiting the foregoing, professional services may include:
a. migrating Data to or from the Merchant Website;
b. programming and/or incorporating custom or bespoke features or functionality in the Merchant Website;
c. training your staff and representatives; and
d. related consultancy and advisory services.
Remedial Maintenance means unscheduled maintenance or rectification of the SaaS and/or the Network by us at our absolute discretion.
SaaS means our software platform for Hosting the Merchant Website under the Plan.
Scheduled Maintenance means scheduled maintenance and service of the SaaS and/or the Network by us at our absolute discretion.
Service Fees means the fees described in the Plan.
Services means the SaaS and Hosting and Professional Services.
Term means the period during which you are bound by this Agreement.
Website Front-End Template means each HTML file that determines the layout and/or functionality of the Merchant Website.
Work means the website features or functionality, software, data, compilation, integration, improvement, development or advance, creation or any other outcome or result achieved by us or arising from the provision of Professional Services.
INTERPRETATION: The following rules of interpretation in this clause apply in this Agreement:
a. the singular includes the plural and vice versa;
b. a gender includes other genders;
c. another grammatical form of a defined term has a corresponding meaning;
d. a reference to 'writing' or 'in writing' includes electronically via email, website or other digital communication.
e. a reference to a clause, paragraph, schedule or annexure is to a clause or paragraph of, or schedule or annexure to, this Agreement, and a reference to this Agreement includes any schedule or annexure;
f. a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
g. a reference to a party is to a party to this Agreement, and a reference to a party to a document includes the party's executors, administrators, successors and permitted assigns and substitutes;
h. a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;
i. a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them; and
j. headings are for ease of reference only and do not affect interpretation.
SCHEDULE 2 – GENERAL CONDITIONS
1. Priority: This Agreement will prevail over any terms of trade or terms and conditions of supply or of acquisition of goods or services provided or submitted by the Merchant or agreed to by us to the extent of any inconsistency between them.
2. Notices: a. All notices required to be given by you this Agreement must be given in writing, addressed to us at our registered office, in the English language, signed by you (or your authorised representative), and dated the date on which it was signed. b. We may give notices to you in any form we see fit. If we publish a notice or any content on the Cavewire Website then you are deemed to have received that notice from the date of publication. You must monitor and keep updated with all notices and content published on the Cavewire Website.
3. Independent Contractors: the parties are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is created by this Agreement.
a. We may license or sub-contract all or any part of our rights and obligations without your consent. We may also at our sole discretion transfer or assign all or any part of its rights and obligations hereunder to any third party without your consent.
b. You must not transfer or assign all or any part of its rights and obligations hereunder without first obtaining our prior written consent.
5. Governing Law: This Agreement will be governed, construed, and enforced in accordance with the laws of the State of Queensland, Australia. The parties submit any disputes arising out of or in connection with this Agreement to the exclusive jurisdiction of the Courts of Queensland.
6. Entire Agreement: This Agreement (and its Schedules) constitutes the entire agreement between the parties with respect to its subject matter and constitutes and supersedes all prior agreements, representations and understandings of the parties, written or oral.
7. Invalidity: If any provision of this Agreement is found to be invalid, illegal or unenforceable, that provision will be severed from this Agreement and the validity, legality and enforceability of the remaining provisions will not be affected, prejudiced or impaired in any way.
8. Change of Ownership: Subject to Clause 17.2, you must provide us with no less than 10 Business Days prior written notice of any proposed change of ownership or control, or any change in your name or details (including but not limited to, changes to your address, facsimile number, or business practice). You will be liable for any loss incurred by us as a result of your failure to comply with this requirement.