Subscription Terms & Conditions
This subscription agreement sets out the terms and conditions on which Core dna will provide to the Customer the Core dna Services. By:
- clicking the ‘I accept’ button or otherwise confirming the Customer’s acceptance electronically; or
- the Customer or an Authorised User commencing use of the Core dna Subscription;
The Customer agrees that it has read, understood and will be bound by this subscription agreement, the Proposal and will also be bound by any notices posted by Core dna on the Core dna Website from time to time pursuant to this subscription agreement (collectively, agreement). If you are entering into this agreement as an agent, officer, employee or other representative of the Customer, you warrant to Core dna that you have full legal authority to bind the Customer to this agreement.
1. Definitions and Interpretation
In this agreement, unless the context otherwise requires:
Additional Services means any services provided to the Customer by Core dna from time to time which are outside the scope of the Core dna Subscription.
Authentication Credential means the username and password or other means of authentication which the Customer and Authorised Users are required to provide in order to be able to access the Core dna Subscription and provide instructions in relation to the provision of the Core dna Subscription.
Authorised Users means the employees, agents, contractors or other representatives of the Customer or its subsidiaries or other related parties who are issued with an Authentication Credential in accordance with this agreement.
Business Day means a day that is not a Saturday, Sunday or public holiday in Melbourne, Victoria.
Commencement Date means the earliest of the date:
- the Customer clicks the ‘I accept’ button or otherwise confirms the Customer’s acceptance of this agreement electronically; or
- Core dna notifies the Customer pursuant to clause 3.1 that Core dna accepts a Proposal; or
- the Customer or an Authorised User commences using the Core dna Subscription.
Confidential Information means any information provided by a party or any of its representatives to the other party or any of its representatives or otherwise obtained by the other party or any of its representatives (whether provided before or after execution of this agreement) in connection with the Core dna Subscription, any Additional Services or this agreement and includes:
in the case of Core dna and the Customer:
- all confidential business information, documents, records, financial information, reports, technical information and forecasts which relate to a party or the party’s business;
- a party’s Intellectual Property; and
- the terms and conditions of this agreement;
- in the case of Core dna, includes the Documentation or any other information regarding the Core dna Subscription; and
- in the case of the Customer, includes the Customer Data, but does not include information which is in or becomes part of the public domain, other than through a breach of this agreement or of an obligation of confidence owed to a party or any of its representatives, or information which a party proves by contemporaneous written documentation was independently acquired or developed without breaching any of the obligations set out in this agreement.
Consequential Loss means Loss beyond the normal measure of damages and includes indirect Loss, Loss of revenue, Loss of reputation, Loss of profits, Loss of actual or anticipated savings, Loss of bargain, lost opportunities, including opportunities to enter into arrangements with third parties, Loss of use, cost of capital or costs of substitute goods, facilities or services.
Content includes any database record including but not limited to text, images, video, electronic files, fonts, layouts and hyperlinks.
Core dna means COREDNA PTY LTD (ACN 11 602 155 813) of 348 High Street, Prahran, Victoria, Australia 3181.
Core dna Content Management System means any content management system operated by Core dna from time to time that assists the Customer to manage Content on the Customer Website.
Core dna Infrastructure means the computer servers, other hardware, technological services or infrastructure maintained or used by Core dna in connection with its provision of the Core dna Subscription.
Core dna Subscription means the services specified in the Proposal and any other services agreed by the parties to form part of the Core dna Subscription from time to time.
Core dna Software means the website development, management and maintenance software applications developed by Core dna, comprising of the Applications.
Core dna Website means the website located at www.coredna.com or the website located at such other URL that Core dna notifies the Customer of from time to time.
Customer means the party named as the Customer in the Proposal.
Customer Content means all Content displayed on the Customer Website from time to time.
Customer Data means all information, data or communications (whether relating to the Customer or its Authorised Users or otherwise) uploaded to the Customer Website or Core dna Infrastructure by or on behalf of the Customer or its Authorised Users.
Customer Applications means the Applications of the Core dna Software used by the Customer from time to time during the Term.
Customer Website means the Customer’s website, as detailed in the Proposal.
Documentation means any manuals, guides, reference materials or other similar documents in any form made available by Core dna to the Customer in connection with the Core dna Services.
Fees means any fees or other amounts payable by the Customer to Core dna under this agreement as specified in the Proposal or as varied pursuant to clauses 7.2 or 13.5.
Force Majeure Event means any act, event or cause, other than lack of funds, affecting a party that is outside that party’s reasonable control, including, but not limited to:
- war, acts or threats of terrorism, riots, revolutions, civil war, acts or threats of sabotage, national emergency (whether in fact or law), imposition of martial law, government requisition or any unlawful act against public order or authority;
- adverse weather conditions, acts of God and destruction by natural disasters including landslides, earthquakes, tsunamis, fires, storms, cyclones and floods;
- epidemics, quarantines, radiation and radioactive contamination;
- boycotts, strikes and other labour difficulties, whether or not involving employees of the party concerned; or
- an ongoing internet or telecommunications outage or impairment.
Improvement means any modification, alteration, development, new use or other change to the Core dna Subscription or the Core dna Software which provides new or improved functionality for the Core dna Subscription or the Core dna Software of which makes the Core dna Subscription or the Core dna Software more accurate, useful, efficient, cost effective or in any other way preferable.
Indirect Tax means a goods and services tax (such as the GST), a value added tax, a consumption tax or a tax of a similar kind.
Intellectual Property includes all trademarks, copyright, patents, patentable inventions and designs, whether existing now or in the future and whether or not registered or registrable, and includes any rights subsisting in or relating to trade secrets, know how, inventions, discoveries, geographical indications of origin, semiconductor and circuit layouts, programming tools, object code, source code, microcode, mask works, methods, techniques, recipes, formulae, algorithms, applications, libraries and databases and further includes the right to apply for the registration or grant of any such intellectual property.
Loss means any loss, liability, cost, claim, expense, damage, charge, penalty, outgoing or payment however arising, whether present, unascertained, immediate, future or contingent and whether direct loss or Consequential Loss.
Applications means the existing or additional feature and function components of the Core dna Software, as developed by Core dna from time to time.
Nominee has the meaning ascribed to it under clause 13.1
Proposal means a proposal in respect of the Core dna Subscription which is submitted to Core dna by the Customer and may be accepted by Core dna or declined by Core dna pursuant to clause 3.1.
Reseller means any person appointed by Core dna to be a reseller of the Core dna Subscription.
Support Hours means the hours in which Core dna will provide any applicable support services to the Customer, as published on the Core dna Website and updated by Core dna from time to time.
Suspension Notice means a electronic notice from Core dna to the Customer which sets out the amount of any outstanding Fees or other amounts payable to Core dna under this agreement and that Core dna will have the right to suspend its provision of the Core dna Subscription if the outstanding amounts specified in the Suspension Notice are not paid in full within five days of the date of the Suspension Notice.
Taxes means any taxes, rates, levies imposts, duties or other charges assessed or payable to any government authority and includes any additional taxes, interest, penalties, charges, fees or other amounts imposed in relation to a failure to file a return or to pay the tax.
Technical Support means the technical support services in respect of the Core dna Software and Core dna Subscription, as specified in the Proposal.
Term means has the meaning given in clause 2.
Termination Date means the date this agreement is terminated or expires.
Third Party Application means any product, service, system, application or internet site integrated or interfaced with, or used as part of, the Core dna Subscription or the Customer Website that is owned or operated by a Third Party Provider, and that is used by Core dna, the Customer or any Authorised User in connection with the Core dna Subscription or the Customer Website.
Third Party Provider means any third party (including the Nominee) that provides support, technology and/or other products or services that are used by Core dna, the Customer or any Authorised User in connection with the Core dna Subscription or the Customer Website.
Unacceptable Content means any Content which, in Core dna’s reasonably held opinion, is obscene, offensive, upsetting, defamatory, illegal or inappropriate, infringes or appears to infringe the intellectual property rights of any person or contravenes or appears to contravene any applicable Laws, regulations or codes of conduct.
Updates means any update, upgrade, patch, bug fix or other development for the Core dna Software or any Application.
In this agreement, headings are inserted for convenience only and do not affect the interpretation of this agreement and, unless the context otherwise requires:
- the singular includes the plural and vice versa;
- if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
- the meaning of general words is not limited by specific examples introduced by ‘includes’, ‘including’, ‘for example’, ‘such as’ or similar expressions; and
- words importing a gender include the other genders;
- a reference to:
- a person includes an individual, a partnership, a body corporate, a joint venture, an association (whether incorporated or not), a government and a government authority or agency;
- a party includes the party’s executors, legal personal representatives, successors, transferees and assigns;
- this agreement includes the recitals, the Proposal and any schedules, annexures, exhibits, attachments to this agreement or notices posted by Core dna on the Core dna Website from time to time pursuant to this agreement;
- “$” or dollars means United States dollars and a reference to payment means payment in US dollars;
- legislation includes any statutory modification or replacement and any subordinate or delegated legislation issued under that legislation; and
- a law includes any statute, regulation, by-law, scheme, determination, ordinance, rule or other statutory provision (whether Commonwealth, State or municipal);
- if the day on or by which something must be done is not a Business Day, that thing must be done on the next Business Day.
This agreement commences on the Commencement Date and will continue until terminated in accordance with clause 15.
3. Core dna Subscription
The Customer may submit Proposals to Core dna via the Core dna Website for the Core dna Subscription the Customer wishes to receive. Each such Proposal constitutes an offer by the Customer to receive the Core dna Subscription specified in the Proposal from Core dna on the terms set out in this Subscription Agreement. Core dna may by written notice to the Customer:
- accept that offer, in which case, immediately upon such notice being provided, an agreement will be formed between Core dna and the Customer for Core dna to provide the Core dna Subscription specified in the Proposal on the terms set out in this Subscription Agreement; or
- decline that offer, in which case an agreement between Core dna and the Customer for Core dna to provide the Core dna Subscription specified in the Proposal will only be formed if Core dna and the Customer reach agreement regarding the terms of the Proposal.
3.2 Provision of Core dna Subscription
From the Commencement Date and during the Term the Customer appoints Core dna to provide the Core dna Subscription to the Customer on the terms and conditions of this agreement and Core dna accepts the appointment.
3.3 Core dna Subscription
The Core dna Subscription will be set out in the Proposal and may consist of any or all of the following:
- access to and use of the Core dna Software;
- the hosting of the Customer Website using the Core dna Infrastructure in accordance with clause 5;
- the provision of Updates for the Customer Applications in accordance with clause 6;
- making new or additional Applications available to the Customer in accordance with clause 7; and
- the provision of Technical Support in accordance with clause 8; and
- providing the Customer with access to and use of the Documentation during the Term.
3.4 Additional Services
- In addition to the Core dna Subscription, if requested by the Customer and accepted by Core dna, Core dna may also provide Additional Services to the Customer during the Term.
- Unless otherwise agreed, any Additional Services will be provided on the terms and conditions of this agreement, provided that the Fees payable by the Customer will be the Fees Core dna notifies the Customer of (which notice Core dna will endeavour to provide promptly after the Customer requests those Additional Services and before providing those Additional Services) or, if no notice is provided, will be calculated on a time and material basis and in accordance with the then current Hourly Rates.
- Nothing in this agreement will oblige Core dna to provide the Additional Services to the Customer.
3.5 Core dna may vary
Core dna may vary the features, functions and other benefits available to Customer and Authorised Users in respect of any of the Core dna Subscription or any Application by publishing a notice of the variation through the Core dna Software or on the Core dna Website. Unless Core dna determines otherwise, the variation will be effective immediately upon such notice being published.
3.6 Core dna retains discretion
The Customer acknowledges that Core dna retains the sole discretion regarding the features, functions and other benefits of the Core dna Subscription and the Applications and nothing in this agreement requires Core dna to provide or maintain any features, functions or other benefits in respect of the Core dna Subscription. The Customer also acknowledges and agrees that nothing in this agreement limits Core dna’s right to discontinue or alter any such features, functions or other benefits from time to time.
5. Hosting of Customer Website
5.1 Core dna responsibilities
From completion of the development and installation of the Customer Website, Core dna will:
- store and host the Customer Website on the Core dna Infrastructure;
- make the Customer Website available to internet users; and
- upload Customer Content when requested by the Customer;
in accordance with any specific hosting requirements detailed in the Proposal.
5.2 Customer responsibilities
The Customer will be responsible for:
- maintaining and updating the Customer Content using the Core dna Content Management System (subject to clause 5.1(iii));
- ensuring no Unacceptable Content is displayed on the Customer Website;
- obtaining all permits, consents, approvals or licences of Intellectual Property necessary to operate the Customer Website; and
- providing any terms and conditions of use of the Customer Website and entering into those terms and conditions with all persons who access the Customer Website.
5.3 Customer acknowledgement
The Customer acknowledges that Core dna only provides the Core dna Subscription to the Customer and Core dna will not have any relationship (legal or otherwise) with users of the Customer Website.
6. Customer Application Updates
6.1 Provision of Customer Application Updates
During the Term, if Core dna develops an Update for a Customer Application it will arrange for the Update to be installed on the Core dna Infrastructure for use by the Customer.
6.2 Availability of Updates
Nothing in this agreement will impose obligations on Core dna to develop any particular Update for a Customer Application.
6.3 Update outages
Core dna will use all reasonable endeavours to minimise the occurrence and duration of any outages, downtime or other inaccessibility to the Customer Website which arises as a result of the installation of any Update for a Customer Module.
7. New or additional Applications
7.1 Availability of new Applications
From time to time during the Term, Core dna may develop new Applications and notify the Customer of the new Applications which are available.
7.2 Fees for new or additional Applications
During the Term, the Customer may request that Core dna make any new or additional Applications available for use with the Customer Website. If the Customer makes such a request, Core dna will notify the Customer of:
- the additional fees payable for the use of the new or additional Module;
- any increases to the Fees payable by the Customer following access to the new or additional Module; and
- any other fees or charges payable by the Customer in respect of the activation or use of the new or additional Module.
If, following receipt of the notice referred to in clause 7.2, the Customer notifies Core dna that it wishes to proceed with the activation of the new or additional Module:
- Core dna will arrange for the new or additional module to be activated on the Core dna Infrastructure and made available for use with the Customer Website; and
- the Customer must pay any fees referred to in clause 7.2.
8. Technical Support
8.1 Availability of Technical Support
Resellers will provide Technical Support to the Customer in relation to the use and operation of the Core dna Software. During the Support Hours, Core dna will, upon the Resellers request, provide Technical Support in relation to the use and operation of the Core dna Subscription.
8.2 No obligations to provide other services
The Customer acknowledges that nothing in the agreement imposes obligations on Core dna to develop, release or install for the Customer any updates, upgrades, patches, bug fixes, new releases or new versions in respect of the Core dna Services (Updates), provided however that if Core dna does develop or release any Updates, it may require that all such Updates be used by the Customer.
9. Third Party Applications and Providers
The Customer acknowledges and agrees that the Core dna Services may interact with Third Party Applications or require Third Party Applications or Third Party Providers to be used to provide particular features, functionality or services. Where such Third Party Applications or Third Party Providers are used, the Customer acknowledges and agrees that:
- Core dna makes no representations or warranties relating to the Third Party Providers or the Third Party Applications;
- any Third Party Providers and Core dna are not partners, joint venturers, representatives or agents of each other;
- the inclusion of any link to or integration with any Third Party Application does not constitute or imply any affiliation with, or sponsorship, endorsement or approval by Core dna of the Third Party Provider or Third Party Application;
- the Customer agrees to and must abide by, and must ensure that each Authorised User agrees to and abides by, any obligations imposed upon it by such Third Party Provider if Core dna notifies the Customer of these obligations;
- access to Third Party Applications is at the Customer’s risk and Core dna will in no way be responsible for any Loss that may result from the Customer’s use of any Third Party Application, despite the fact that any such Third Party Application may interface with the Core dna Software, or that Core dna may have provided installation or integration services with respect to the Third Party Application;
- the Third Party Providers may have practices, terms and policies, including those relating to privacy or data security, that are different from those of Core dna. Core dna is not responsible for these practices, terms and policies and specifically disclaims any liability for any of them;
- Core dna make no representations or warranties regarding the Third Party Applications or the Third Party Providers. Without limiting the above, Core dna does not make any representations or warranties regarding the availability or timing of any availability of any interface between the Core dna Software and any Third Party Applications;
- the Customer will maintain a direct, independent contractual relationship with all Third Party Providers in relation to the Customer’s access to or use of the Third Party Applications and services provided by a Third Party Provider; and
- Core dna is not responsible for and has no obligation to provide the Customer with any assistance or support in relation to the functioning or operation of the Third Party Applications.
10. Authentication Credentials
10.1 Provision of Authentication Credentials
On request from the Customer from time to time, Core dna or its Reseller will provide the Customer with Authentication Credentials in order for the Customer and the Authorised Users to access the Core dna Subscription.
10.2 Obligations of the Customer in relation to the Authentication Credentials
The Customer must:
- ensure that each Authentication Credential is securely maintained and used only by the Customer and any Authorised User to whom the Authentication Credential has been issued;
- comply with any policies, guidelines or other requirements issued by Core dna from time to time in any way relating to Authentication Credentials;
- immediately notify Core dna and take immediate steps to disable an issued Authentication Credential if:
- an Authorised User ceases to be employed by, contracted to, or otherwise authorised to use the Core dna Subscription by the Customer;
- an Authentication Credential is lost, stolen, missing or is otherwise compromised; or
- the Customer becomes aware of any breach of the provisions of this agreement by the Customer or any Authorised User, in which case the Authentication Credentials will be suspended until such time as the breach is remedied to Core dna’s satisfaction;
- not transfer or allow to be transferred Authentication Credentials between or amongst Authorised Users or other individuals or systems and take all reasonable steps to ensure that Authentication Credentials are not transferred;
- conduct regular checks to ensure the integrity of all issued Authentication Credentials, including regularly cross checking its list of Authorised Users with such list maintained by Core dna and provided to the Customer; and
- periodically reset Authentication Credentials as and to the extent required by Core dna from time to time.
10.3 Management of Authentication Credentials
Core dna reserves the right at any time and from time to time to change and/or revoke Authentication Credentials by providing the Customer with written notice.
11. Customer responsibilities and obligations
11.1 Customer responsibilities
The Customer will be responsible for:
- uploading all Customer Content using the Core dna Content Management System;
- the day to day operation and management of the Customer Website;
- obtaining all consents, permits or approvals necessary to upload the Customer Data and Customer Content into the Core dna Content Management System and onto the Customer Website, store the Customer Data and Customer Content on the Core dna Infrastructure and otherwise use the Core dna Subscription;
- ensuring that the use of the Core dna Subscription by the Customer and each of its Authorised Users and the uploading and storage of the Customer Data complies with all applicable Laws, regulations or codes of conduct;
- satisfying itself that the Core dna Subscription are compatible with its own hardware, software and internet and network capabilities and maintaining all hardware, software, Third Party Applications and other technology necessary to be able to access and use the Core dna Subscription;
- ensuring that it maintains back up or alternate systems for use if the Core dna Subscription are unavailable or are otherwise unable to be used by the Customer;
- ensuring no Unacceptable Content is uploaded to the Customer Website or stored in the Core dna Infrastructure; and
- any acts or omissions committed by the Authorised Users or the other employees, officers, contractors or representatives of the Customer or any of its related parties in relation to the Core dna Subscription.
11.2 Customer obligations
The Customer must:
- only use and copy the Documentation to the extent necessary to use the Core dna Subscription;
- comply with any policies regarding the use of the Core dna Subscription which Core dna notifies the Customer of from time to time (which notification may be provided by Core dna making the relevant policies accessible via the Core dna Website);
- ensure that each Authorised User has all licences, certifications, permissions or other approvals required to be able to access and use the Core dna Subscription;
- not use the Core dna Subscription in any way or for any purpose other than as contemplated by this agreement;
- not permit any person other than the Authorised Users to use the Core dna Subscription and ensure that those Authorised Users, in using the Core dna Subscription, comply with the terms and conditions of this agreement as if they were the Customer;
- not attempt to circumvent or break any encryption, decryption or other security device or technological protection measure contained in, or as part of, the Core dna Subscription;
- not create derivative works from all or any part of the Core dna Subscription;
- not transfer, assign, rent, lease, lend, sell or otherwise dispose of all or any part of the Core dna Subscription or any compilation derived from the Core dna Subscription; and
- not make any part of the Core dna Subscription publicly available (other than allowing the public to access the Customer Website).
Core dna will have the right, upon provision of reasonable notice to the Customer, to audit the Customer’s use of the Core dna Subscription and compliance with this agreement (by means of remote access or through entry to the Customer’s premises, at Core dna’s election), and the Customer agrees to allow Core dna or its representatives access to such systems, facilities, books and records as are reasonably required for such audits.
The Customer must use only the most recent version of the Documentation provided by Core dna, and must follow Core dna’s instructions concerning the return or destruction of any superseded versions of the Documentation.
13. Fees and expenses
13.1 Fees and expenses payable
During the Term, the Customer will pay the Fees:
- to Core dna; or
- if Core dna has nominated a third person (including any Reseller) to act as Core dna’s payment agent or payment nominee to receive all or part of the Fees either in the Proposal or by written notice to the Customer (Nominee), to the Nominee,
Fees will be invoiced by Core dna in accordance with the payment terms set out in the Proposal or as otherwise determined by Core dna.
13.2 Revocation of nomination
Core dna may at any time by notice in writing to the Customer and for any reason revoke its nomination of any Nominee under clause 13.1(b) and, if Core dna makes such revocation, the Customer’s obligation to make payment under clause 13.1 will, from the date of the notice of revocation, be an obligation to make payment of the Fees to Core dna.
13.3 Payment Terms
The Customer must pay each invoice issued by Core dna pursuant to this agreement within 7 days of the date of the invoice or such other period as specified in the Proposal.
13.4 Failure to pay
- If the Customer fails to pay any amounts due to Core dna or any Nominee (as applicable) under this agreement then (without prejudice to Core dna’s other rights):
- Core dna may charge the Customer interest on all amounts overdue at the interest rate at the rate fixed from time to time by the Attorney General under the Penalty Interest Rates Act 1983 (Vic), which interest will accrue and be chargeable from the first day on which such amounts become overdue until Core dna or any Nominee (as applicable) receives effective payment of all such amounts (including all interest); and
- Core dna may issue a notice to the Customer stating that an amount is overdue (Overdue Notice). If Core dna or any Nominee (as applicable) does not receive payment of the relevant Fees within 5 days of the date of the Overdue Notice, Core dna may cease providing the Core dna Subscription and any Additional Services and may disable the Customer’s and any Authorised User’s access to the Core dna Subscription until such time as the outstanding amount is paid in full (together with any interest). Core dna will not be liable for any Loss suffered by the Customer as a result of Core dna exercising its rights under this clause 13.4(1)(ii).
- Core dna’s right to require payment of interest does not affect any other rights and remedies it may have regarding the default.
- Core dna’s suspension of the Core dna Subscription pursuant to clause 13.4(a)(ii) will not affect any other rights and remedies it may have regarding the non-payment and Core dna will not be liable for any Loss suffered by the Customer or Authorised User as a result of the suspension.
13.5 Increases to fees
During the Term Core dna may increase the Fees provided that:
- Core dna must give the Customer no less than 30 days’ notice of the increase; and
- Core dna may only increase the Fees once during each 6 month period of the Term.
14. Unacceptable Content
14.1 Core dna can notify Customer
If Core dna reasonably believes that any Unacceptable Content has been uploaded into the Core dna Content Management System, is being displayed on the Customer Website or is being stored on the Core dna Infrastructure, Core dna may request the Customer either to remove the Unacceptable Content or disable access to the Unacceptable Content.
14.2 Core dna can take action
Core dna will have the right (but not the obligation) to remove Unacceptable Content from the Core dna Content Management System, Customer Website or Core dna Infrastructure or disable access to Unacceptable Content where the Customer has not complied with a Core dna request under clause 14.1 within five Business Days of the date of the request.
14.3 No obligation to monitor
Nothing in this agreement imposes obligations on Core dna to monitor the Customer Website or Core dna Infrastructure for Unacceptable Content or otherwise monitor or screen Customer Content or Customer Data for Unacceptable Content.
15.1 Termination for convenience
Either party may terminate this agreement at any time and without cause by providing the other party with no less than 90 days written notice of termination.
15.2 Termination with cause
Without limiting clause 15.1, Core dna may, by written notice to the Customer, terminate this agreement with immediate effect if:
- the Customer fails to comply with any written notice issued by Core dna requiring the Customer to remedy a breach, non-observance or non-performance of the Customer’s obligations under this agreement within five Business Days of receiving that notice from Core dna;
- the Customer commits a breach of this agreement which is incapable of remedy;
- the Customer goes into liquidation, is wound up, becomes insolvent or has a receiver appointed over all or any substantial part of its assets; or
- the Customer proposes or enters into any schemes of arrangements with its creditors.
15.3 Consequences of termination
Upon termination of this agreement taking effect:
- the Customer must immediately:
- cease using and ensure that each of its Authorised Users ceases using the Core dna Subscription;
- pay to Core dna or any Nominee (as applicable) all Fees, expenses or other sums payable to Core dna under this agreement which have accrued or are payable as at the date of termination;
- return to Core dna any Documentation in the Customer’s possession or control; and
- provide Core dna with written confirmation that it has completed its obligations under this clause 15.3(a).
- Core dna will, upon written request from the Customer, return to the Customer all Customer Data stored on the Core dna Infrastructure and provide to the Customer any Customer Data relating to the Customer Website that is stored or housed on the Core dna Infrastructure, with such data to be in a form or format reasonably determined by Core dna and at the Customers cost; and
- Core dna ceases to have any obligations under this agreement with respect to the provision of Core dna Subscription or any Additional Services and may disconnect the Customer’s access to the Core dna Subscription, disable all Authentication Credentials and disable or take down the Customer’s Website.
For the avoidance of doubt, following termination of this agreement taking effect, Core dna or any Nominee (as applicable) will be entitled to retain any Fees paid by the Customer, even if such amounts were paid in advance.
15.4 Transfer of Client Website hosting
Notwithstanding clause 15.3(c), if Core dna has been hosting the Customer Website there will be a period of 14 Business Days from the Termination Date during which the Customer may require that Core dna provide reasonable assistance (at the Customer’s expense and request) to the Customer in respect of the transfer of the hosting of the Customer Website to a third party.
15.5 Survival of obligations
Clauses 1, 15, 16, 17, 21, 22 and 23 will survive the termination or expiry of this agreement.
16.1 Confidentiality obligations
Where a party (Recipient) receives Confidential Information from the other party under this agreement or otherwise in connection with the Core dna Services, the Recipient must:
- keep the Confidential Information confidential;
- subject to clause 16.2, not use, disclose or reproduce the Confidential Information for any purpose other than the purposes of this agreement; and
- establish and maintain effective security measures to safeguard the Confidential Information from unauthorised access, use, copying or disclosure.
16.2 Permitted disclosure
Notwithstanding clause 16.1, the Recipient may use or disclose Confidential Information to:
- the extent necessary to comply with any law, binding directive of a regulator or a court order;
- the extent necessary to comply with the listing rules of any stock exchange on which its securities are listed;
- the extent necessary to obtain professional advice in relation to matters arising under or in connection with this agreement; or
- any Nominee or Third Party Provider who has a need to know the Confidential Information in the course of providing services to either Core dna or the Customer in connection with the Core dna Subscription.
16.3 Other parties to maintain confidentiality
The Recipient must ensure, to the extent possible, that its employees, subcontractors, agents and representatives, Nominee, and in the case of the Customer any Authorised Users and Third Party Providers, do not do, or omit to do anything, which if done or omitted to be done by the Recipient, would breach this clause.
16.4 Notification of unauthorised use
The Recipient must immediately notify the Disclosing Party of any potential, suspected or actual unauthorised use, copying or disclosure of the Confidential Information.
16.5 Duration of obligations
All obligations of confidence set out in this agreement continue in full force and effect after this agreement ends.
16.6 Promotion and marketing
The Customer agrees that, for the purposes of promoting and marketing Core dna and the Core dna Services, Core dna is entitled to:
- notify others of Core dna’s relationship with the Customer and Core dna’s provision of the Core dna Services and any Additional Services to the Customer; and
- place branding on the Customer Website (such as logo and text) which identifies Core dna as the host and/or developer of the Customer Website.
17. Intellectual Property
17.1 Ownership of Intellectual Property
The parties agree that:
- Core dna will own all Intellectual Property in:
- the Core dna Software;
- any Improvements created as a result of Core dna’s provision of the Core dna Services;
- the Customer will own all Intellectual Property in the Content it provides to Core dna for use on the Customer Website;
- the Customer will not have any rights in respect of the Intellectual Property referred to in clause 17.1(a), other than any rights granted under this agreement; and
- Core dna will not have any rights in respect of the Intellectual Property referred to in clause 17.1(b), other than any rights granted under this agreement.
17.2 Licence to use Customer Content and trade marks
To the extent necessary for Core dna to be able to provide the Core dna Subscription, the Customer grants Core dna a worldwide, non-exclusive, royalty-free, revocable licence to use and display:
- the Customer Content; and
- any of the trade marks the Customer requests Core dna display or include on the Customer Website.
18. Security of Core dna Subscription
18.1 Core dna’s obligations
Core dna will take all reasonable steps to ensure the security and safety of the Customer Data and other information stored on the Core dna Infrastructure, including by implementing and maintaining reasonable and current data protection and virus screening procedures and technologies.
18.2 Core dna's liability
Provided Core dna complies with its obligations under clause 18.1, Core dna will not be liable for any Loss suffered by the Customer which arises out of or in connection with:
- any computer viruses being transferred by or obtained as a result of the use of the Core dna Subscription or the Customer Website;
- any hacking into or other similar attacks on the Core dna Subscription, Customer Website or the Core dna Infrastructure; or
- any other data security issues in respect of the Core dna Subscription, Customer Website or the Core dna Infrastructure.
19. Back ups
The Customer acknowledges that Core dna does not provide back up or other similar services in respect of the Customer Data and the Customer is responsible for implementing its own back up and data retrieval procedures in respect of the Customer Data.
The Customer agrees and acknowledges that Core dna may subcontract the performance of any of its obligations or the exercise of any of its rights under this agreement to any sub-contractor without the Customer’s consent and on such terms and conditions as Core dna deems fit from time to time.
21.1 Exclusion and limitation of implied warranties
- Core dna does not warrant or guarantee that:
- the Core dna Subscription will be compatible with, or capable of being used on or in connection with, the Customer’s computer and communications systems;
- the Customer’s access to the Core dna Subscription will be uninterrupted or error free; or
- the Core dna Subscription will be accurate, reliable or fit for any particular purpose.
- Core dna expressly excludes from this agreement all conditions, warranties and terms which may be implied into this agreement by statute, custom, general law or any applicable international conventions. To the extent that the Competition and Consumer Act 2010 (Cth) or any other comparable legislation applies to this agreement and implies any condition or warranty in relation to the Core dna Software or the provision of the Core dna Subscription or the performance of Core dna’s obligations under this agreement which cannot be excluded, Core dna’s liability for a breach of the implied condition or warranty will be limited, to the extent permitted by law to:
- if the breach relates to goods:
- the replacement of the goods or the supply of the equivalent goods; or
- the payment of the cost of replacing the goods or of acquiring equivalent goods;
at the election and discretion of Core dna; or
if the breach relates to services:
- the supply of the services; or
- the payment of the cost of having the services supplied again;
at the election and discretion of Core dna.
21.2 Customer’s warranty
The Customer acknowledges and warrants that as at the date of this agreement and at all times thereafter:
- it has relied on its own skill and judgment in the selection of the Core dna Subscription;
- it has satisfied itself that the Core dna Subscription are fit for all the purposes which the Customer requires them for;
- it will comply with all applicable Laws; and
- it has full corporate power and authority to enter into, perform and observe its obligations under this agreement, and that the execution, delivery and performance of this agreement by it has been duly and validly authorised by all necessary corporate action.
22. Exclusion and limitation of liability
22.1 Exclusion of consequential loss
- Without limiting clauses 22.2, Core dna will not be liable to the Customer for any Consequential Loss suffered or incurred by the Customer arising out of or in connection with this agreement.
- This clause applies even if Core dna knew or ought to have known that it was possible or foreseeable that such Loss would be incurred by the Customer.
22.2 Liability capped
- If the Customer incurs any Loss as a result of:
- a failure by Core dna to comply with its obligations under clause 18.1; or
- a breach by Core dna of any implied warranty which cannot be excluded pursuant to clause 21.1(b), then the remedy (if any) specified in clause, 18.2 or 21.1(b) (as applicable) will be Core dna’s sole liability to the Customer in respect of the relevant breach or failure.
- Subject to clauses 22.2(a) and 22.4, the maximum aggregate liability of Core dna for any Loss suffered by the Customer under or in connection with this agreement, however caused (including by the negligence of Core dna) and whenever arising, is limited to the total amount of the Fees paid by the Customer to Core dna under this agreement.
22.3 Commencement of claims
Any claim by the Customer against Core dna for Loss however caused (including by the negligence of Core dna) suffered by the Customer in connection with this agreement must be made within one year of the Customer becoming entitled to make the claim and any claim not made within this period is absolutely barred.
22.4 Liability- other
Notwithstanding clauses 21.1(b), 22.1 and 22.2, neither party limits its liability for:
- death or personal injury resulting from its negligence; or
The Customer must indemnify and keep Core dna indemnified against any Loss suffered or incurred by Core dna which arises directly or indirectly out of:
- any breach of this agreement by the Customer including any breach in respect of which Core dna exercises a right to terminate;
- any Unacceptable Content being uploaded into the Customer Website or Core dna Infrastructure, displayed on the Customer Website or stored on the Core dna Infrastructure;
- the uploading of the Customer Data into the Customer Website or Core dna Infrastructure, storage of any Customer Data on the Core dna Infrastructure or use of the Core dna Subscription by the Customer or its Authorised Users which does not comply with privacy or other laws of any applicable jurisdiction;
- the Customer Data being stored or displayed on the Customer Website or Core dna Infrastructure;
- any negligent or unlawful acts of the Customer or any of its related parties or their respective Authorised Users, employees, officers, contractors or representatives;
- the Customer or any of its personnel maintaining and updating the Customer Content using the Core dna Content Management System;
- instructions or directions provided to Core dna by the Nominee; and
- third parties accessing the Customer Website,
- except to the extent the relevant Loss arises as a direct result of any breach of this agreement by Core dna or any negligent or unlawful act of Core dna or any of its personnel.
24.1 Indirect Tax
Unless expressly stated otherwise, all fees and other amounts payable by the Customer under or in connection with this agreement have been calculated without regard to any Indirect Tax. Notwithstanding anything to the contrary in this agreement, if Indirect Tax is imposed upon or is payable by Core dna under or in connection with this agreement, the Customer must pay to Core dna an amount equal to the Indirect Tax upon demand by Core dna.
24.2 Withholding Taxes
If the Customer is required by any applicable law to make any deduction or withholding for any Taxes from any payments to Core dna under this agreement such that Core dna would not receive the full amount of the Fees or other amount payable, the Customer agrees to:
- deduct or withhold the amount for Taxes from the payment;
- promptly pay the amount deducted to the relevant government authority on time and otherwise in accordance with the relevant law;
- provide to Core dna an original receipt, certificate or other evidence of payment of the deducted or withheld amount; and
- pay an additional amount to Core dna at the same time as the affected payment is due so that, after making the deduction or withholding and any further deductions or withholdings on the additional amount payable under this clause 24.2(c), Core dna receives an amount equal to the amount it would have received if no deductions or withholdings had been made.
25. General provisions
25.1 Governing law
This agreement will be construed and interpreted in accordance with the laws of the state of Victoria, Australia and each party submits to the non-exclusive jurisdiction of courts of that jurisdiction including the Federal Court.
The Customer may not assign or otherwise deal with any of its rights or obligations under this agreement without the prior written consent of Core dna. Core dna may assign, novate or otherwise deal with its rights under this agreement at any time effective immediately upon Core dna notifying the Customer of the assignment or novation.
25.3 Entire agreement
This agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes all previous communications, representations, inducements, undertakings, agreements or arrangements between the parties or their respective officers, employees or agents.
25.4 Force Majeure
If a party is prevented, hindered or delayed from performing its obligations under this agreement by a Force Majeure Event, then as long as that situation continues, that party will be excused from performance of the obligation to the extent it is so prevented, hindered or delayed, and the time for performance of the obligation will be extended accordingly provided that a Force Majeure Event does not relieve or suspend any party’s obligation to pay money in accordance with the agreement. If a party is affected by a Force Majeure Event it will immediately give the other party a notice of its occurrence and its effect or likely effect, and use all reasonable endeavours to minimise the effect of the Force Majeure Event and to bring it to an end.
25.5 Waiver and variation
Unless otherwise specified in this agreement, this agreement will not be varied except by a document in writing signed by the parties. No failure to exercise or delay in exercising any right given by or under this agreement to a party constitutes a waiver and the party may still exercise that right in the future.
25.6 Liability of parties
If a party consists of more than one person:
- an obligation of those parties is a joint obligation of all of them and a several obligation of each of them;
- a right given to those parties is a right given jointly and severally to each of them, and if exercised by one of them, is deemed to be exercised jointly; and
- a representation, warranty or undertaking made by those parties Is made by each of them.
If any provision of this agreement is invalid or not enforceable in accordance with its terms in any jurisdiction, it is to be read down, if possible, so as to be valid and enforceable and will otherwise be capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of this agreement or affecting the validity or enforceability of that provision in any other jurisdiction.
25.8 Further Assurances
Each party must sign, execute, deliver and do and must procure that each of its officers, employees and agents signs, executes, delivers and does, all deeds, documents, instruments and acts reasonably required of it or them by notice from another party to effectively carry out and give full effect to this agreement and the rights and obligations of the parties under it.
25.9 No agency or partnership
The relationship between the parties is that of principal and independent contractor and no party is a representative or partner of any other party by virtue of this agreement.
25.10 No authority to act
No party has any power or authority to act for or to assume any obligation or responsibility on behalf of another party, to bind another party to any agreement, negotiate or enter into any binding relationship for or on behalf of another party or pledge the credit of another party except as specifically provided in this agreement or by express written agreement between the parties.