Terms of Service

Terms of Service

Effective Date:

11 February 2021

Please read these terms of service and our Privacy Notice (together, these “Terms”) carefully as they form a contract between the Customer and Vault Group PTY Limited and its Affiliates (collectively “VaultRE”) and govern use of and access to the Service(s) and Websites by Customer, Customer’s Affiliates and Authorised Users. In the event of a conflict between these terms of service and our Privacy Notice, these terms of service shall prevail.

By registering for and/or accessing, using, or subscribing to use the Service or Websites, submitting to us a duly authorised order, including an Order Form, that references these Terms; or by clicking “I Agree” or otherwise affirmatively manifesting your intent to be bound by these Terms (including by using the Services or accessing the Websites) Customer agrees to be bound by these Terms.

If the Customer is entering into these Terms on behalf of a company, organisation or another legal entity (an “Entity”), Customer agrees to these Terms for that Entity and represents to VaultRE that Customer has the authority to bind such Entity and its Affiliates to these Terms, in which case the terms, “Customer” or related capitalised terms used herein shall refer to such Entity and its Affiliates. If Customer does not have such authority, or if Customer does not agree with these Terms, Customer must not accept these Terms and may not access or use the Service or Websites.

1. Definitions

In these terms and conditions:

(a) “Account” means any accounts created by or on behalf of Customer for access to and use of any of the Service(s)

(b) “Affiliates” of a party means any legal entity in which a party, directly or indirectly, holds more than fifty percent (50%) of the entity’s shares or voting rights. Any legal entity will be considered an Affiliate as long as that interest is maintained

(c) “Agreement” means an Order Form (and documents incorporated into an Order Form) including these Terms of Use as amended from time to time.

(d) “API” means the application programming interfaces developed, enabled by, or licensed to VaultRE that permits a User to access certain functionality provided by the Service.

(e) “Authorised User” means, in the case of an individual accepting these terms on his or her own behalf, such individual, or, in the case of an individual accepting the Agreement on behalf of a company or other legal entity, an individual who is authorised by Customer to use a Service, for whom Customer has purchased a subscription (or in the case of any Services provided by VaultRE without charge, for whom a Service has been provisioned), and to whom Customer (or, when applicable, VaultRE at Customer’s request) has supplied a user identification and password (for Services utilizing authentication). Authorised Users may include, for example, employees, consultants, contractors and agents of Customer

(f) “Confidential Information” means:

(i) with respect to Customer, the Customer Data;

(ii) with respect to VaultRE, the Service, Documentation and information regarding VaultRE product offerings, pricing and availability; and

(iii) with respect to both parties, includes all information exchanged between the parties to the Agreement, whether in writing, electronically or orally, including the Service but does not include information which is, or becomes, publicly available other than through unauthorised disclosure by the other party.

(g) Content means information obtained by VaultRE from publicly available sources or its third-party content providers and made available to Customer through Customer’s Account with respect to Customers’ use of the Service.

(h) “Customer” means in the case of an individual accepting the Agreement on his or her own behalf, such individual, or in the case of an individual accepting the Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting the Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates) which have entered into Order Forms.

(i) “Customer Data” means any content, materials, data and information that Authorised Users enter into the Service or that Customer derives from its use of and stores in the Service (including personal data of Authorised Users and End-Users). Customer Data and its derivatives includes Ownership Data but does not include VaultRE’s Confidential Information and any Content.

(j) “Documentation” means VaultRE’s then-current technical and functional documentation as well as any roles and responsibilities descriptions, if applicable, for the Service which is made available to Customer with the Service.

(k) End -User means any person or entity (other than Customer or Authorised Users) with whom Customer interacts using the Service(s)

(l) “Fees” means the amounts payable by the Customer to VaultRE for the provision of the Services or any other thing supplied or to be supplied by VaultRE under the Agreement.

(m) “Insolvency Event” means the relevant person becoming bankrupt or making a composition or arrangement with its creditors or an order for the winding-up of such person being made or (except for the purposes of a solvent amalgamation or reconstruction) a resolution for its voluntary winding-up being passed or a provisional liquidator, receiver, examiner, administrator or manager of its business or undertaking being appointed or presenting a petition or having a petition presented applying for an administration order to be made, or possession being taken by or on behalf of the holders of any debenture secured by a floating charge of any property comprised in or subject to the floating charge, or any equivalent act or thing being done or suffered under any Law applicable to the relevant person

(n) “Intellectual Property Right” means any patent, trademark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.

(o) “Order Form” means any service order form, or online ordering document or process completed by Customer, referencing the Agreement and executed or approved by Customer and VaultRE with respect to Customer’s subscription to the Service(s), each of which form may detail, among other things, the number of Authorised Users authorised to use the Service(s) under Customer’s subscription to the Service(s) and the service levels applicable to Customer’s subscription to the Service(s).

(p) “Ownership Data” means information including text, video, still images, audio or other material relating to or describing properties, businesses or equivalent, that VaultRE has permitted you to host, share, publish, post, store or upload to the Service.

(q) “Service” means the VaultRE solution and any other distinct, subscription-based, hosted, supported and operated on-demand solution provided by VaultRE under an Order Form or online purchasing portal and Services has a corresponding meaning. Each Service excludes Content and any Third-Party Applications.

(r) “Subscription Term” means the term of a Service subscription identified in the applicable Order Form, including all renewals and agreed variations.

(s) “Support Services” means the maintenance and support services provided by VaultRE to Customer during the Subscription Term as specified in an Order Form or agreed from time to time.

(t) Third Party Application means any web-based, mobile, offline or other software application functionality, including any APIs that interoperates with a Service, that is provided by Customer or a third party

(u) “Usage Metric” means the standard of measurement for determining the permitted use and calculating the fees due for a Service as set forth in an Order Form

(v) “Website” means websites for various Service(s) and other websites that VaultRE operates.

2. Key VaultRE Responsibilities

2.1 Provisioning.

VaultRE will:

(a) make the Service available to Customer pursuant to the applicable Order Form (or online registration through the Website(s)) and Documentation as described in the Agreement;

(b) use commercially reasonable efforts to make the Service available in accordance with its service levels except for:

(i) planned downtime (of which VaultRE will give advance electronic notice), and

(ii) any unavailability caused by circumstances beyond VaultRE’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, pandemic, civil unrest, act of terror, strike, internet service provider failure or delay, Third Party Application, or denial of service attack;

(c) provide the Service(s) in accordance with applicable laws and government regulations applicable to locations where VaultRE hosts the Service

2.2 Support and training.

VaultRE provides support and training for the Service to the extent referenced in the Order Form.

2.3 Security.

VaultRE will implement and maintain appropriate technical and organizational measures to protect the personal data processed by VaultRE as part of the Service as described in the Privacy Policy for VaultRE Services incorporated into the Order Form in compliance with applicable data protection law.

3. Usage Rights

3.1 Rights to use

Subject to Customer’s compliance with the Terms and solely during the Subscription Term (and any renewals thereof in accordance with the agreement) VaultRE grants to Customer a non-exclusive, non-transferable right to use the Service (including its implementation), the Documentation and any Content solely for Customer’s and its Affiliates’ internal business operations in accordance with the Agreement.

3.2 Mobile Access to Service

Authorised Users may access certain the Service through mobile applications obtained from third-party websites such as Android or Apple app stores. The use of mobile applications may be governed by the terms and conditions presented upon download/access to the mobile application and not by the terms of the Agreement.

3.3 APIs

Customer must use VaultRE’s APIs according to VaultRE’s API policies and terms available at: https://www.vaultre.com.au/api_terms

4. Use of Services and Content

4.1 Subscription Based

(a) Unless otherwise provided in the applicable Order Form:

(i) the Service and access to Content are purchased as subscriptions for the Subscription Term stated in the applicable Order Form or in the applicable online purchasing portal,

(ii) subscriptions for Services may be added during a Subscription Term at the same pricing as the underlying pricing, prorated for the portion of that Subscription Term remaining at the time the subscriptions are added, and

(iii) any added subscriptions will terminate on the same date as the underlying subscriptions.

(b) Customer agrees that the Agreement is not contingent on the delivery of any future functionality or features, or dependent on any oral or written representations made by VaultRE regarding future functionality or features of the Service.

4.2 Authorised Users

(a) Customer may permit Authorised Users to use the Service Customer provided it maintains reasonable and appropriate security standards for its Authorised Users’ use of the Service.

(b) Usage by the Customer and its Authorised Users is limited to the Usage Metrics and volumes stated in the Order Form and the Documentation, such as maximum number of users, capacity, or other express restrictions.

(c) Access credentials for the Service may not be used by more than one individual but may be transferred from one individual to another if the original user is no longer permitted to use the Service.

(d) Customer is responsible for Authorised Users’ compliance with the Agreement and any breaches of the Agreement caused by Authorised Users.:

4.3 Security and Accounts

The Customer agrees:

(a) to be solely responsible for all Authorised User activity all activity that occurs under Customer’s Accounts by or on behalf of Customer, which must be in accordance with the Agreement and the Documentation;

(b) that it is responsible for maintaining the security of its Account(s) and password(s). VaultRE cannot and will not be liable for any loss or damage from the Customer’s failure to comply with this security obligation;

(c) that VaultRE may alter or update the Customer’s account logins and passwords and the logins and passwords of any Authorised Users at any time throughout the Term

(d) to use commercially reasonable efforts to prevent unauthorised access to, or use of, the Service and notify VaultRE promptly of any known unauthorised access or use; and

(e) to use the Service only in accordance with applicable laws and regulations.

Customer shall be responsible for maintaining the security of access to Customer’s Account. Any loss of data or attempted or actual access or use of the Service(s) resulting from a breach of this obligation is the sole responsibility of Customer.

4.4 Customer Data

(a) Customer is solely responsible for the accuracy, legality and quality of Customer Data and entering it into the Service and must comply with all applicable laws in its use of the Service. Customer grants to VaultRE, its Affiliates and subcontractors a non-exclusive right to process Customer Data to provide and support the Service.

(b) Customer must collect and maintain all personal data contained in the Customer Data in compliance with applicable data privacy and protection laws. Customer represents and warrants to VaultRE that Customer has all necessary rights, consents, and permissions to collect, share and use Customer Data as contemplated in the Agreement, without violation or infringement of any third-party intellectual property, publicity, privacy rights or any laws and regulation.

4.5 Usage Restrictions.

The Customer must only use the Service for its own lawful internal business purposes, in accordance with the Agreement and must not:

(a) use the Service to process data on behalf of any third party other than Customer’s Authorised Users and End-Users;

(b) make any Service or Content available to anyone other than its Authorised Users, or use any Service or Content for the benefit of anyone other than Customer or its Authorised Users, unless expressly stated otherwise in an Order Form or the Documentation,

(c) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering in a manner that allows anyone to access or use the Service without an Authorised User subscription, or to commercially exploit the Service;

(d) use a Service or Third-Party Application to store or transmit infringing, libellous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights

(e) interfere with or disrupt the integrity or performance of the Service, or any third-party application or third-party data or content contained therein,

(f) frame or mirror any part of any Service or Content, other than framing on Customer's own intranets or otherwise for its own internal business purposes or as permitted in the Documentation

(g) disrupt, disable, translate, decompile, or reverse engineer the Service to:

(i) build a competitive product or service

(ii) build a product or service using similar ideas, features, functions or graphics of the Service,

(iii) copy any ideas, features, functions or graphics of the Service, or

(h) attempt to undermine the security or integrity of VaultRE’s computing systems or networks or, where the Services are hosted by a third party, that third party’s computing systems and networks;

(i) use, or misuse, the Service in any way which may impair the functionality of the Service, or other systems used to deliver the Service or impair the ability of any other user to use the Service;

(j) attempt to gain unauthorised access to any Services other than those to which Customer has been given express permission to access or to the computer system on which the Service is hosted;

(k) transmit, or input into the Services or any Third-Party Application, any files that may damage any other person’s computing devices or software, content that may be offensive, or material or Customer Data in violation of any law (including Customer Data or other material protected by copyright or trade secrets which Customer does not have the right to use); and

(l) attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Service.

(m) take any other action with respect to the Services not expressly permitted under the Agreement or the Documentation.

(n) publicly disseminate performance information regarding the Service; or

(o) access or use the Service or any Third-Party Application:

(i) to send unsolicited communications, junk mail, spam, pyramid schemes or other forms of duplicative or unsolicited messages

(ii) to send or store infringing, obscene, threatening, or otherwise unlawful material, including material violative of third-party privacy rights;

(iii) in violation of applicable laws;

(iv) to knowingly send or store material containing software viruses, worms, trojan horses or other harmful computer code, files, scripts, or agents;

(v) in a manner that interferes with or disrupts the integrity or performance of the Service (or the Customer Data contained therein); or

(vi) to gain unauthorised access to the Service (including unauthorised features and functionality) or its related systems or network.

4.6 Removal of Content

If Customer receives notice that Content or a Third-Party Application must be removed, modified and/or disabled to avoid violating applicable law, third-party rights, or the Agreement, Customer will promptly do so. If Customer fails to do so or if VaultRE reasonably determines that continued violation is likely to reoccur, VaultRE may disable the applicable Content, Service and/or Third-Party Application.

4.7 Trust Accounting Conditions

When accessing and using any Trust Accounting features of the Services, the Customer must:

(a) administer and monitor the use of all Trust Accounting functionality and review trust records consistently with the regulatory obligations, industry standards and best practices that apply to maintenance of a Trust Account(s); and

(b) maintain records, backups and hard copies of all data entered into and all reports and outputs generated by VaultRE, to the extent and in the manner required or recommended by regulatory obligations, industry standards and best practices that apply to Customer’s maintenance of a Trust Account(s).

(c) Be responsible for all knowledge, training and costs related to accounting practices.

5. Downtime

VaultRE may update the Service from time to time and Customer may receive notifications of such upgrades, enhancements, or updates (“ Updates”). Any new or modified features added to, augmenting, or otherwise modifying the Service or other Updates, modifications or enhancements to the Service are also subject to the Agreement and VaultRE reserves the right to deploy Updates at any time. Customer agrees that its purchase of the Service is neither contingent upon the delivery of any future functionality or features, nor dependent upon any oral or written public comments made by VaultRE with respect to future functionality or features.

6. Third Party Applications

(a) The Service may include integrations with Third Party Applications that are accessed through the Service and may be subject to third party terms and conditions. These Third-Party Applications are not part of the Service and Customer remains responsible for the interoperation of any Third-Party Applications with which Customer uses Services or Content.

(b) VaultRE reserves the right to limit or reject any integration with a third-party software provider for any reason whatsoever, including without limitation, because the third-party provider competes with any member of the PropTech Group.

(c) In connection with any such Third-Party Applications, Customer acknowledges and agrees that VaultRE may allow the third-party provider(s) access to Customer Data as required for the interoperation of such Third-Party Applications with the Service. The use of a Third-Party Application with the Service may also require Customer to agree to a separate agreement or terms and conditions with the provider of the Third-Party Applications, which will govern Customer’s use of such Third-Party Applications.

(d) VaultRE does not warrant or support Third Party Applications or other third-party services, whether or not they are designated by VaultRE as “certified” or otherwise, unless expressly provided otherwise in the Agreement or an Order. VaultRE is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such Third-Party Application or its provider.

(e) The Services may contain features designed to interoperate with Third Party Applications. VaultRE cannot guarantee the continued availability of such Service features and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Third-Party Application ceases to make the application available for interoperation with the corresponding Service features in a manner acceptable to VaultRE.

7. Fees and payment

7.1 Payment obligations:

(a) Customer must pay all Fees as stated in the Order Form or on the Website(s). Customer must not withhold, reduce or set-off Fees owed to VaultRE nor reduce Usage Metrics during the Subscription Term.

(b) All Order Forms are non-cancellable and fees non-refundable. Quantities purchased cannot be decreased during the relevant Subscription Term.

7.2 Invoicing and payment

(a) Customer must provide VaultRE with a valid credit card or duly executed bank direct debit authority acceptable to VaultRE.

(b) If Customer provides credit card information or a bank direct debit authority to VaultRE, Customer authorizes VaultRE to charge such credit card or debit such bank account for all Services listed in the Order Form for the Subscription Term and any renewal Subscription Term(s).

(c) Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, VaultRE will invoice Customer in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced fees are due net 14 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to VaultRE and notifying VaultRE of any changes to such information.

7.3 Taxes

(a) The Fees are exclusive of all taxes, levies, GST, duties or similar governmental assessments of any nature (collectively, " Taxes"). Customer is responsible for paying all Taxes associated with Customer purchases except for those based on VaultRE’s net income, property, or employee withholdings.

(b) Taxes must not be deducted from the payments to VaultRE, except as required by law, in which case the amount payable will be increased as necessary, so that after making all required deductions and withholdings, VaultRE receives and retains (free from any Tax liability) an amount equal to the amount it would have received had no such deductions or withholdings been made.

7.4 Late Payment

If any payment of Fees has not been made by the due date, VaultRE may (at its absolute discretion):

(a) immediately cease providing, and suspend Customer’s access to, the Services, and recover as a debt due and immediately payable from the Customer its costs of doing so;

(b) charge interest at a rate equal to the Reserve Bank of Australia’s cash rate from time to time plus 3% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the due date for payment; and

(c) charge an account re-establishment fee in the amount of $100 (excl GST) per instance.

8. Customer Data and Personal Data

8.1 Customer Data.

All Customer Data is and remains, as between the parties, the property of Customer and VaultRE must not assert that there exist any interests or title to any part of the Customer Data in favour of VaultRE. Subject to the terms of the Agreement, Customer grants to VaultRE a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the Customer Data to the extent necessary to provide the Service to Customer.

8.2 Customer Responsibilities

The Customer:

(a) has exclusive control and responsibility for determining what Customer Data Customer submits to the Service and for obtaining all necessary consents and permissions for submission of Customer Data and processing instructions to VaultRE;

(b) is solely responsible for the accuracy, content and legality of all Customer Data and agrees to comply with all applicable laws in its use of the Service;

(c) represents and warrants that Customer has all necessary rights, consents and permissions to collect, share and use Customer Data as contemplated in the Agreement, without violation or infringement of any third-party intellectual property, publicity, privacy rights or any laws and regulation; and

(d) must collect and maintain all personal data contained in the Customer Data in compliance with applicable data privacy and protection laws.

8.3 Access to Customer Data.

(a) During the Subscription Term, Customer is entitled to access its Customer Data at any time. Customer may export and retrieve its Customer Data in a standard format. Export and retrieval may be subject to technical limitations stated in the Documentation.

(b) Before the Subscription Term expires, Customer may use VaultRE’s self-service export tools (as available) to perform a final export of Customer Data from the Service.

(c) Following the end of the Agreement, VaultRE will delete or overwrite the Customer Data remaining on servers hosting the Service unless applicable law requires retention. Retained data is subject to the confidentiality provisions of the Agreement.

(d) In the event of third-party legal proceedings relating to the Customer Data, VaultRE will cooperate with Customer and comply with applicable law (both at Customer’s expense) with respect to handling of the Customer Data.

8.4 Loss of Customer Data

Customer acknowledges and agrees:

(a) any collation, conversion and analysis of Customer Data performed as part of the Services whether by the Services or otherwise may be subject to human input and machine errors, omissions, delays and losses including but not limited to any loss of Customer Data. To the fullest extent permitted by law, VaultRE is not liable for any such errors, omissions, delays or losses. Customer acknowledges and agrees it is responsible for adopting reasonable measures to limit the impact of such loss or error;

(b) VaultRE is not responsible for any corruption or loss of any Customer Data if such corruption or loss is due to an act or omission by the Customer, its personnel, its Related Bodies Corporate or any Authorised Users; and

(c) VaultRE is not responsible for the integrity or existence of any Data on the Customer’s Environment, network or any device controlled by the Customer or its personnel.

8.5 Statistical Data

VaultRE may collect information about Customer’s use of the Service or the Customer Data for the purposes of improving and enhancing the Service and for other development, diagnostic and corrective purposes in connection with the Service and other VaultRE offerings, and disclose Statistical Data solely in aggregate or other de-identified form in connection with its business, always provided that, unless Customer otherwise consents in writing:

(a) the Statistical Data must not include any information or data that would allow VaultRE or any other person to match or otherwise re-identify Customer, any Customer Entity or any person, entity or transaction from the Statistical Data; and

(b) VaultRE must not, or must not attempt or assist any person to, analyse, match or combine the Statistical Data with other data to re-identify Customer, any Customer Entity or any person, entity or transaction.

9. Confidentiality and Privacy

9.1 Confidentiality

Each party (the Receiving Party) must:

(a) treat Confidential Information of the other party as secret and confidential and as the property of the other party and maintain and take all steps necessary to keep all such Confidential Information confidential;

(b) ensure that each person to whom Confidential Information of the other party is disclosed by the Receiving Party complies with the obligations of the Receiving Party under this clause 12;

(c) not reproduce or permit the reproduction in any form of any document or part thereof which contains Confidential Information of the other party other than for the purposes of performing or enforcing the Agreement, or to seek professional advice in relation to the Agreement; and

(d) return Confidential Information of the other party within 10 Business Days of being requested in writing to do so.

9.2 Exceptions

Clause 9.1 does not impose obligations on a party concerning Confidential Information of the other party which:

(a) is publicly available at the date of the Agreement or becomes publicly available subsequent to the date of the Agreement without breach of any obligations of confidentiality;

(b) was obtained by the Receiving Party from a third party on a non-confidential basis without breach by that third party of any obligation of confidence concerning that Confidential Information;

(c) was already in the Receiving Party’s possession (as evidenced from written records) when it was disclosed or made available to the Receiving Party; or

(d) is required to be disclosed by any law.

9.3 Publicity.

Neither party will use the name of the other party in publicity activities without the prior written consent of the other, except that Customer agrees that VaultRE may use Customer's name in customer listings or quarterly calls with its investors or, at times mutually agreeable to the parties, as part of VaultRE's marketing efforts (including reference calls and stories, press testimonials, site visits, etc). Customer agrees that VaultRE may share information on Customer with VaultRE and its Affiliates for marketing and other business purposes and that it has secured appropriate authorizations to share Customer employee contact information with VaultRE.

9.4 Privacy

(a) Each Party agrees to comply with its obligations under the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines as amended from time to time in relation to personal information collected, used or disclosed by that Party or its Personnel in connection with the Services and the Agreement.

(b) Details on how VaultRE complies with the Privacy Act 1988 (Cth) and how it collects, discloses, holds or uses personal information is available in the VaultRE’s Privacy Policy as set out on the VaultRE’s website at https://www.vaultre.com.au/termsofuseor as provided to the Customer from time to time. VaultRE reserves the right to amend its Privacy Policy as required from time to time.

(c) VaultRE will take all reasonable steps to notify the Customer in writing if it becomes aware of any actual, threatened or suspected breach of Data where such breach involves personal information.

(d) Customer must ensure that any collection, processing, use, disclosure and transfer by the Customer of personal information in connection with the performance of its obligations under the Agreement complies with all applicable privacy law and the privacy policy of the Customer.

(e) The Customer must take all necessary steps to ensure that the personal information held or accessed by it in connection with the Agreement is protected against misuse, interference and loss, and from unauthorised access, modification and disclosure (Data Breach). The Customer will promptly give written notice to VaultRE of any actual or suspected Data Breach and will provide information, assistance and other cooperation as requested by VaultRE in respect of the Data Breach.

(f) The Customer must co-operate with any reasonable requests or directions of VaultRE relating to the security, use, disclosure, and transfer of personal information, VaultRE’s legal obligations relating to the personal information, complaints relating to the personal information and the rights of individuals to access and correct the personal information or opt out of receiving any communications from or on behalf of the Customer.

(g) This clause 9.4 will survive the termination or expiry of the Agreement.

10. Termination

10.1 Term

The Subscription Term (if any) is as stated in the Order Form.

10.2 Renewal

(a) Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring Subscription Term or one year (whichever is shorter), unless either party gives the other written notice at least 60 days before the end of the relevant Subscription Term.

(b) Except as expressly provided in the applicable Order Form, or otherwise determined by VaultRE, renewal of subscriptions will be at VaultRE’s applicable standard list price in effect at the time of the applicable renewal. VaultRE reserves the right to increase Fees on an annual basis at the beginning of each Subscription Term.

10.3 Suspension

VaultRE may suspend Customer’s access to the Service(s), including, without limitation, Customer’s Account, on the following grounds:

(a) late payment/non-payment of Subscription Charges;

(b) non-renewal of the Service(s) by Customer; or

(c) breach of the Agreement.

VaultRE will notify Customer of any such suspension. Customer must remedy any such violations prior to VaultRE restoring full access to and use of the Service. Suspension will in no way affect VaultRE’s rights and Customer’s other obligations under the Agreement.

10.4 Termination

(a) Customer may terminate the Agreement with immediate effect by written notice to VaultRE if:

(i) VaultRE enters or threatens to enter into bankruptcy, liquidation or any other form of Insolvency Event;

(ii) VaultRE ceases to conduct business;

(iii) VaultRE commits a material breach of the Agreement and does not remedy that material breach (if it is capable of remedy) or make reasonable compensation in money (if it is not capable of remedy) within 20 Business Days of being required by notice to do so.

(b) VaultRE may terminate the Agreement with immediate effect by written notice to Customer if:

(i) Customer enters or threatens to enter into bankruptcy, liquidation or any other form of Insolvency Event;

(ii) Customer ceases, or threatens to cease, to conduct business;

(iii) a Change of Control occurs in respect of Customer without the prior written consent of VaultRE; or

(iv) Customer commits a material breach of the Agreement or any Order (including by failure to pay an amount of money due under the Agreement) and does not remedy that material breach (if it is capable of remedy) or make reasonable compensation in money (if it is not capable of remedy) within 20 Business Days of being required by notice to do so.

10.5 Termination Where no Subscription Term

Where there is no Subscription Term (or renewed Subscription Term) either party may terminate this Agreement by giving the other at least 30 days prior written notice, such termination will take effect with at the expiry of the then current billing cycle.

10.6 Effect of expiry or termination

(a) On and after termination or expiry of the Agreement:

(i) Customer’s right to use the Service the subject of the Agreement will end;

(ii) Confidential Information of the disclosing party will be returned or destroyed as required by the Agreement; and

(iii) termination or expiration of the Agreement does not affect other agreements between the parties.

(b) Termination or expiry of the Agreement, however caused, is without prejudice to any rights or liabilities of the parties accruing as at the date of termination. Provisions that, by their nature, are intended to survive termination of the Agreement, will survive termination and expiry of the Agreement.

11. Intellectual Property

(a) VaultRE, its Affiliates or licensors own all Intellectual Property Rights in and related to the Service, Documentation, VaultRE’s APIs, related knowledge or processes, and any derivative works of them. All rights not expressly granted to Customer under the Agreement are reserved to VaultRE, its Affiliates and licensors.

(b) Customer covenants, on behalf of itself and its successors and assigns, not to assert against VaultRE, its Affiliates or licensors, any rights, or any claims of any rights, in any Service or Documentation.

12. Third Party Claims

12.1 Claims Brought Against Customer.

(a) VaultRE will defend Customer against claims brought against Customer and its Affiliates by any third party alleging that Customer’s and its Affiliates’ use of the Service infringes or misappropriates Intellectual Property Rights owned by a third party. VaultRE will indemnify Customer against all damages finally awarded against Customer (or the amount of any settlement VaultRE enters into) with respect to these claims.

(b) VaultRE’s obligations under clause 12.1 will not apply if the claim results from:

    (i) Customer’s breach of the Agreement;
    (ii) use of the Service in conjunction with any product or service not provided by VaultRE; or
    (iii) use of the Service provided for no fee.

(a) In the event a claim is made or likely to be made, VaultRE may either procure for Customer the right to continue using the Service under the terms of the Agreement or replace or modify the Service to be non-infringing without a material decrease in functionality.

If these options are not reasonably available, VaultRE or Customer may terminate the Agreement upon written notice to the other.

12.2 Claims Brought Against VaultRE.

(a) Customer will defend VaultRE against claims brought against VaultRE, and their Affiliates and subcontractors by any third party related to Customer Data.

(b) Customer will indemnify VaultRE against all damages finally awarded against VaultRE and their Affiliates and subcontractors (or the amount of any settlement Customer enters into) with respect to these claims.

12.3 Third Party Claim Procedure.

(a) The party against whom a third-party claim is brought will timely notify the other party in writing of any claim, reasonably cooperate in the defence and may appear (at its own expense) through solicitors reasonably acceptable to the party providing the defence.

(b) The party that is obligated to defend a claim will have the right to fully control the defence.

(c) Any settlement of a claim will not include a financial or specific performance obligation on, or admission of liability by, the party against whom the claim is brought.

12.4 Exclusive Remedy.

The provisions of clause 12 state the sole, exclusive, and entire liability of the parties to the other party, and is the other party’s sole remedy, with respect to covered third party claims and to the infringement or misappropriation of third-party Intellectual Property Rights.

13. Warranties

(a) Each party warrants its current and continuing compliance with all laws and regulations applicable to it in connection with:

(i) in the case of VaultRE, the operation of VaultRE’s business as it relates to the Service, and

(ii) in the case of Customer, the Customer Data and Customer’s use of the Service.

(b) VaultRE warrants that:

(i) the provision of the Services and Deliverables will not infringe any right of any third party (including, without limitation, any Intellectual Property Right) or any Law;

(ii) it will provide the Service in substantial compliance with the requirements of the Agreement and with the degree of skill and care reasonably expected from a skilled and experienced supplier of services substantially similar to the nature and complexity of the Service;

(iii) it will not materially decrease the overall functionality of the Services; and

(iv) it will not knowingly introduce, software viruses, worms, Trojan horses or other code, files, scripts, or agents intended to do harm.

(c) The warranties in clause 13(b) will not apply if:

(i) the Service is not used in accordance with the Agreement or Documentation,

(ii) any non-conformity is caused by Customer, or by any product or service not provided by VaultRE, including by any Third-Party Application, or

(iii) the Service was provided for no fee.

(d) Upon prompt notification by Customer of VaultRE’s breach of the warranties in this clause 13, Customer’s sole and exclusive remedy and VaultRE’s entire liability for breach of the warranty under clause 13(a) or 13(b) will be to the extent permitted by applicable law the re-performance of the deficient Service;

(e) Except as expressly stated in this clause 13, neither VaultRE nor its subcontractors make any representation or warranties, express or implied, statutory or otherwise, regarding any matter, including the merchantability, suitability, originality, or fitness for a particular use or purpose, non-infringement or results to be derived from the use of or integration with the Service or any other services provided under the Agreement, or that the operation of any products or services will be secure, uninterrupted or error free. Customer agrees that it is not relying on delivery of future functionality, public comments or advertising of VaultRE or product roadmaps in obtaining subscriptions for any Service.

(f) If VaultRE is in breach of a condition or warranty implied by the Competition and Consumer Act 2010 (other than a condition or warranty implied by articles 51-53 of schedule 2 of that Act), VaultRE’s liability is limited to: (i) where VaultRE supplied services, the cost of having the services supplied again, and (ii) where VaultRE supplied goods, the repair or replacement of the goods or the supply of equivalent goods.

14. Liability

(a) Subject to the exceptions and carve outs set out in clause 14(c):

(i) Subject to Sections 12.1 and 12.3, the maximum aggregate liability of either party (or its parent, respective Affiliates, or VaultRE’s subcontractors) to the other or any other person or entity for all events (or series of connected events) arising in any twelve-month period will not exceed the annual subscription fees paid for the applicable Service directly causing the damage for that twelve-month period. Any “twelve-month period” commences on the Subscription Term start date or any of its yearly anniversaries.

(ii) neither party will be liable for any special, incidental, consequential, or indirect damages, loss of good will or business profits, work stoppage or for exemplary or punitive damages incurred or suffered by the other party under the Agreement.

(b) VaultRE will not be liable for any damages caused by any Service provided for no fee.

(c) The limitation and exclusions in clause 14(a) do not apply and a party’s liability is unlimited in relation to:

(i) loss arising from infringement of third party’s Intellectual Property Rights; and

(ii) personal injury, sickness or death caused by negligent or wrongful acts or omissions of the party.

(d) A party’s liability under the Agreement (including under an indemnity) is reduced proportionately to the extent that the Loss suffered by the other party is caused by the breach of the Agreement by or the negligent act or omission of the other party.

(e) The Agreement allocates the risks between VaultRE and Customer. The fees for the Services and Deliverables reflect this allocation of risk and limitations of liability

15. Miscellaneous

15.1 Severability.

If any provision of the Agreement is held to be invalid or unenforceable, the invalidity, or unenforceability will not affect the other provisions of the Agreement.

15.2 No Waiver.

A waiver of any breach of the Agreement is not deemed a waiver of any other breach.

15.3 Electronic Signature.

Electronic signatures that comply with applicable law are deemed original signatures

15.4 Use of 3rd Parties for Payment Processing:

VaultRE may use a third-party service provider to manage payment processing; provided, that such service provider is not permitted to store, retain, or use Customer’s payment account information except to process Customer’s payment information for VaultRE. Customer must notify VaultRE of any change in Customer’s payment account information, either by updating Customer’s Account or by e-mailing VaultRE at accounts@vaultre.com.au.

15.5 Assignment:

Customer is not entitled to assign the Agreement or any of its rights or delegate any of its duties under the Agreement without the prior written consent of VaultRE. Subject to the foregoing, these Terms will be binding upon, enforceable by, and inure to the benefit of the Parties and their respective successors and assigns. Any attempted assignment in violation of this section shall be null and void.

15.6 Notices:

(a) All notices will be in writing and given when delivered to the address set forth in an Order Form.

(b) Notices by VaultRE relating to the operation or support of the Service and otherwise may be in any of the following forms:

(iii) a banner notice on the dashboard for the Service; or

(iv) electronic mail to the email address provided by Customer to VaultRE during the registration process or to any updated address correctly notified by Customer using the Service; or

(v) via text message to the mobile telephone number provided by Customer to VaultRE during the registration process or to any updated number correctly notified by Customer using the Service.

(c) All notices are deemed served in the normal course of transmission.

15.7 Entire understanding

The Agreement (including any Order Form) constitutes the entire agreement and supersedes any and all prior agreements between Customer and VaultRE regarding the subject matter hereof. In the event of a conflict between any Order Form and these Terms, these Terms shall prevail.

15.8 Variation

(a) VaultRE may amend these Terms from time to time, in which case the new Terms will supersede prior versions.

(b) VaultRE will notify Customer not less than ten (10) days prior to the effective date of any amendments to these terms of service and Customer’s continued use of the Service(s) following the effective date of any such amendment may be relied upon by VaultRE as Customer’s acceptance of any such amendment.

(c) VaultRE’s failure to enforce at any time any provision of these Terms does not constitute a waiver of that provision or of any other provision of the Terms.

15.9 Governing law and jurisdiction

(a) The Agreement and any claims relating to its subject matter will be governed by and construed under the laws of Victoria, without reference to its conflicts of law principles. All disputes will be subject to the exclusive jurisdiction of the courts located in Melbourne.

(b) The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (where enacted) will not apply to the Agreement. Either party must initiate a cause of action for any claim(s) relating to the Agreement and its subject matter within one year from the date when the party knew, or should have known after reasonable investigation, of the facts giving rise to the claim(s).

(c) A person who is not a party to the Agreement has no rights to enforce any term of this Agreement

15.10 Nature of engagement

Nothing in the Agreement creates a relationship between the parties of partnership, principal and agent or joint venturers. Neither party has the authority to bind the other.

15.11 Special Conditions

VaultRE may subcontract parts of the Cloud Service or Consulting Services to third parties. VaultRE is responsible for breaches of the Agreement caused by its subcontractors.