1.1 Fraudsec Pty Ltd ACN 605 003 825 t/a Whispli provides an online reporting system (Whispli), the details of which are set out in this Agreement.
1.2 Whispli is an anonymous crime, fraud, theft, collusion, bullying and other illegal or inappropriate behaviour reporting solution for use by an organisation, business or entity, the staff, stakeholders and those in the care of those organisations, businesses or entities, as more fully described in item B of these Terms of Service.
A KEY DEFINITIONS
A.1 The following terms are used regularly throughout these Terms of Service and have a particular meaning (additional definitions are found in the General Conditions):
(a) Agreement means these Terms of Service.
(b) Authorised Reseller means a Third Party that invoices and receives payment for Whispli services on the Company’s behalf.
(c) Client means (without limitation) an organisation, business or entity that:
i Is a paying User of Whispli; and
ii Has access to the full suite of features for receiving and managing Reports.
(d) Company means Fraudsec Pty Ltd ACN 605 003 825.
(e) Fee means any fee payable by a User for access to, or use of Whispli.
(f) Informant means an anonymous employee, contractor, stakeholder or person in the care of a Client that creates an Informant account to use Whispli.
(g) Organisation means an organisation managed or operated by a Client for the purposes of receiving, investigating and determining an appropriate outcome in relation to Reports and Reporting Information.
(h) Person in Care means a person who, by virtue of being a minor or in a relationship with an Organisation where the Organisation is responsible for the care and wellbeing of that person (whether on a full-time or part time basis), is in the care of the Organisation.
(j) Report means a report in relation to an Organisation submitted by an Informant using Whispli.
(k) Reporting Information means any information related to a Report and includes an Upload.
(l) Reporting Link means a URL or QR Code where a Report can be submitted to an Organisation.
(m) Staff Member means an employee of the Client that has a user account to access Whispli.
(n) Third Party means any person that is not a User.
(o) Upload means a file that has been uploaded to Whispli in relation to a Report.
(a) Clients (Item C)
(b) Staff Members and Persons in Care (Item D)
(c) Informants (Item E)
B.2 In addition to any other express or implied consents, by using Whispli the User accepts and agrees to the terms of:
(a) This Agreement; and
C.1 The Client agrees and accepts that:
(a) Whispli may be hosted on servers located outside Australia and may also use email servers located outside of Australia. Such services may host or transmit a Report, or Reporting Information.
(b) The Client is solely responsible for ensuring that its use of Whispli and storage of Reporting Information in Whispli is compliant with the local laws of the Client and/or the Client’s Informants; and
C.2 Whispli may enable a Client to:
(a) Receive and view Reports;
(b) Send messages to an Informant;
(c) Receive messages from an Informant;
(d) Access Uploads;
(e) Manage the workflow for processing a Report by describing actions taken and updating the status of a Report. Status options may include:
iv Assessed; Investigated, Resolved;
v Ignore; or
vi Any other status made available by the Company via Whispli from time-to-time;
(f) Create and manage an Organisation profile, including:
i Creating a Reporting Link;
ii Creating and editing a description;
iii Creating and editing a message to be viewed by visitors to the Reporting Link;
iv Creating and Editing a disclaimer on how a Report will be managed by an Organisation, and how this may affect an Informant;
v Limited customisation options for the look of the Whispli interface (including the reporting link) to align with the Organisation’s brand.
(g) Download all Reports and Reporting Information;
(h) Create Staff Member user accounts for Whispli and assign permissions and restrictions on that account to allow the Informant to carry out any of the tasks listed between C.2(a) to (f) above;
(i) Manage account and billing details; and
(j) Such other features as may be added from time-to-time.
C.3 The Client agrees and warrants that:
(a) It must pay the applicable Fee for each Staff Member that it creates an account for within Whispli.
(b) To the extent permitted by law the Client indemnifies and will hold the Company harmless against all costs, claims damages and expenses for any:
i Penalty imposed upon the Client;
ii Injury, illness or death caused to an Informant or Third Party;
iii Damage to the property of the Client, any Informant or Third Party;
iv Claim of infringement of intellectual property rights made by an Informant or Third Party;
v Claim of breach of confidentiality by any Informant or Third Party;
As a result of the Client’s use of Whispli.
(c) It shall ensure that all information that it makes available through Whispli is accurate and up to date, including (but not limited to) information supplied for:
i Creating and updating a Client account;
ii Creating and updating a Staff Member account;
iii Creating and updating an Organisation profile;
iv Managing the workflow in response to a Report;
v Communicating with an Informant; and
vi Any other information that may be accessed by the Client or an Informant;
(d) It shall not disclose any information about an Informant to any other person or party other than as is absolutely necessary in order to investigate and reach a determination on a Report;
(e) It shall ensure all personal information it has access to through its use of Whispli is kept and used in accordance with applicable privacy laws in the jurisdiction;
(f) It shall only use Whispli for its intended purpose as set out in this Agreement and must not use Whispli to discriminate against or victimise Informants;
(g) It’s licence to use Whispli, as provided for in the General Conditions, is subject to the payment of all necessary Fees.
C.4 A person who registers as a Client in Whispli warrants that he or she is an authorised representative of that Client with the requisite authority to bind the Client to this Agreement.
C.5 A Client that registers an Organisation in Whispli warrants that they are an authorised representative of that Organisation with the requisite authority to receive and manage Reports in relation to that Organisation in accordance with this Agreement, and agrees that:
(a) The Company may refuse to enable an Organisation profile if it is not satisfied that the Client has the requisite authority; or
(b) The Company may suspend or delete an Organisation Profile if it is not satisfied that the Client has the requisite authority.
C.6 Where a Client pays Fees to an Authorised Reseller, any claim or request for service pursuant to this Agreement must be made to the Reseller in the first instance.
C.7 In the event that the Company comes into possession of the identity or Personal Information of an Informant, the Company shall be under no obligation to disclose such Personal Information to the Client under any circumstances.
D.1 Staff Members agree to use Whispli in accordance with the rights and obligations of the Client that authorises their access.
E.1 Whispli allows an Informant to do any of the following things by following a Reporting Link or QR Code, without being asked to identify themselves:
(a) Create an anonymous Informant account;
(b) Submit a Report;
(c) Submit Uploads;
(d) Send and Receive messages with an Organisation;
E.2 The Informant agrees and accepts that:
(a) By using Whispli the Informant acknowledges that the Organisation will use the information supplied by the Informant to conduct an investigation into the matters disclosed by the Informant in the Report and Reporting Information.
(b) Once a Report or Reporting Information has been submitted, an Informant can not remove a Report or rescind Reporting Information, nor request the Company to remove such Report or Reporting Information.
(c) The Informant warrants that all Reporting Information and the contents of a Report are true and correct to the best of their knowledge and belief.
(d) The Informant will hold Whispli harmless for any consequences that may result from the Informant submitting a Report and any Reporting Information.
(e) The Informant must not use Whispli for malicious purposes toward a Client or any other person including (but not limited to) for the purposes of:
iii Making false allegations of wrongdoing or illegal activity;
iv Threatening person or property.
(f) The Company bares no responsibility if an Informant loses their anonymity in the event that an Organisation or any employee deduces the identity of the Informant from the contents of a Report or Reporting Information.
(g) It is the Informant’s responsibility to login to Whispli to check messages from the Organisation. The Company will not be liable to the Informant for the consequences of the Informant failing to login to Whispli to follow the progress of their Report.
(h) The Informant uses Whispli at its own risk. To the extent permitted by law, under no circumstance will the Company be liable for any loss, emotional distress, injury, or damage to property resulting from the use of Whispli.
(i) Any claim based on loss, emotional distress, injury, or damage to property that results from an Informant’s use of Whispli must be directed to the Client to whom the Organisation profile belongs.
(j) To the extent permitted by law, the Company accepts no liability for the accuracy of any information made available by an Organisation using Whispli. Any reliance on the information available through Whispli is at the Informant’s own risk.
(k) The Informant indemnifies Whispli against all costs, claims damages and expenses for any loss, emotional distress, injury, or damage to property of a Third Party as a result of the Informant’s use of Whispli;
(l) Any information shared by Whispli with a Client may be retained by the Client for the purpose of investigating a Report and making a determination in relation to the matters discussed in the Report;
(m) Whispli may send the Informant messages and Uploads on behalf of the Client;
(n) Any consent or statement made by an Informant through Whispli is valid and binding unless and until revoked by the Informant, and a Client may rely on a consent or statement made through Whispli without any need to further verify the veracity of that consent;
(o) All information about an Informant is used and managed by the Informant or Client, not Whispli;
(p) All information input into Whispli about an Informant is provided with that Informant’s consent.
(q) The Client authorised by the Informant to receive the Report and Reporting Information may have its own policy governing access to this information and the use of Whispli. It is the Informant’s responsibility to determine whether such a policy exists, familiarise themselves with its contents and abide by them prior to submitting a Report and throughout the investigation and determination process.
(r) Whispli may be hosted on servers located outside Australia and may also use email servers located outside of Australia. Such services may host or transmit an Informant’s Report and Reporting Information.
(s) An Informant shall not be required to pay any fees in relation to Whispli.
E.3 An Informant account that is created by submitting a Report can not be terminated by an Informant. However there is no obligation on an Informant to log in to Whispli or continue using Whispli once they have filed a Report, or supplied Reporting Information.
F.1 Fees apply as advertised to the use of Whispli, and the terms of those Fees are set out in the General Conditions.
F.2 Where a Fee is paid for a particular term of access to Whispli, the User shall not be entitled to a pro-rata refund of any Fees if it elects to stop using Whispli within that term.
G ELECTRONIC TRANSACTIONS
G.1 The User agrees that when it provides any consent, authority or agreement through Whispli it does so as an electronic transaction and warrants that such transaction shall be binding on the party.
G.2 The User agrees that any request for a consent, authority or agreement it sends to other Users through Whispli as an electronic transaction shall be sent directly from its email address.
H TERM & LIMITATIONS
The User is licensed to access Whispli from the date of accepting these Terms and Conditions until:
(a) The User or the Company terminate the User’s access to Whispli by giving to the other no less than 30 days’ notice in writing; or
(b) The Company terminates the User’s license to access Whispli in accordance with this Agreement.
H.2 Limitations on Use.
The Company may limit or restrict access to Whispli from time-to-time as it sees fit, including (but not limited to):
(a) Entities. The Company may restrict Client access only to reputable and/or registered organisations; and
(b) Location. The Company may restrict access to Whispli to certain jurisdictions where it is able to offer Whispli.
(a) The User must register an account in Whispli to use Whispli.
(b) The Company may set any registration requirements in its absolute discretion.
J CONFIDENTIAL INFORMATION
J.1 The Company will keep confidential all information that it becomes aware of and will only use Confidential Information in accordance with the purpose for which it was provided regarding a User’s:
(a) Personal information;
(b) Report and Reporting Information; and
(c) Business, employees and contractors.
K.1 This Agreement may be terminated at any time by:
(a) Written notice of one party to the other; or
(b) By cancelling or otherwise terminating your account through Whispli (where this option is provided).
K.2 Ceasing to use Whispli does not constitute termination of this Agreement, although the Company may terminate this Agreement in the event it determines in its reasonable discretion that the User’s intention is to cancel or terminate their account and this Agreement.
L DISCLAIMER – THIRD PARTY INFORMATION & SERVICES
L.1 The User acknowledges that Whispli:
(a) Is dependent on third-party services, including but not limited to:
i Banks, credit card providers, BPAY;
ii Telecommunications services;
iii Hosting services;
iv Email services; and
v Analytics services.
L.2 The User agrees that the Company shall not be responsible or liable in any way for:
(a) Interruptions to the availability of Whispli due to third-party services; or
(b) Information contained on any linked third party website.
M.1 Governing Law. New South Wales, Australia
M.2 Reference City. Sydney.
1.1 The User wishes to access Whispli provided by The Company.
1.2 The terms and conditions in this Agreement govern the provision of Whispli to the User by the Company.
2.1 The following definitions apply in this document:
(a) ABN means Australian Business Number.
(b) ACN means Australian Company Number.
(c) Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in the Reference City set out in item M of the Important Terms.
(d) Confidential Information means all information (whether or not it is described as confidential) in any form or medium concerning any past, present or future business, operations or affairs of either party, including, without limitation:
i All technical or non-technical data, formulae, patterns, programs, devices, methods, techniques, plans, drawings, models and processes, source and object code, software and computer records;
ii All business and marketing plans and projections, details of agreements and arrangements with third parties, and customer and supplier information and lists;
iii All financial information, pricing schedules and structures, product margins, remuneration details and investment outlays;
iv All information concerning any employee, customer, contractor, supplier or agent of the relevant party;
v The party’s policies and procedures; and
vi All information contained in this document,
But excludes information that the other party can establish:
vii Is known by or is in the other party’s possession or control other than through a breach of this document and is not subject to any obligation of confidence; or
viii Is in the public domain other than by a breach of this document or any obligations of confidence.
(e) Corporations Act means the Corporations Act 2001 (Cth).
(f) Fees mean the fees and charges as agreed between a User and the Company.
(g) Force Majeure means an event or cause beyond the reasonable control of the party claiming force majeure. It includes each of the following, to the extent it is beyond the reasonable control of that party:
i Act of God, lightning, storm, flood, fire, earthquake or explosion cyclone, tidal wave, landslide, adverse weather conditions;
ii Act of public enemy, war (declared or undeclared), terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic;
iii The effect of any change in applicable laws, orders, rules or regulations of any government or other competent authority; and
iv Embargo, inability to obtain necessary materials, equipment or facilities, or power or water shortage.
(h) General Conditions means the terms and conditions set out in the section of this Agreement entitled “General Conditions”.
(i) GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(j) Intellectual Property means all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property;
(k) Intellectual Property Rights means, for the duration of the rights in any part of the world, any Moral Rights, industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property, applications for the registration of any Intellectual Property and any improvements, enhancements or modifications to any Intellectual Property registrations.
(l) Moral Rights means:
i Moral rights pursuant to the Copyright Act 1968 (Cth);
ii Or any rights analogous to the rights set out in Article 6bis of the Berne Convention for Protection of Literary and Artistic Works 1886 (as amended from time to time).
(m) Important Terms means this Agreement’s details and variables set out in the section of this Agreement entitled “Important Terms”.
(n) Pricing means the pricing as notified to the User in writing by the Company from time-to-time.
(o) Privacy Act means the Privacy Act 1989 (Cth).
(p) Solution means the solution called Whispli described in the Important Terms.
(q) Special Conditions means the terms and conditions set out in the section of this agreement entitled “Special Conditions”.
(r) Tax Invoice has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(s) User Content means data that is uploaded or input into Whispli by the User or that forms part of the User’s Intellectual Property.
2.2 Headings are only for convenience and do not affect interpretation. The following rules apply unless the context requires otherwise:
(a) The singular includes the plural and the opposite also applies.
(a) If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.
(b) A reference to a clause refers to clauses in this Agreement.
(c) A reference to legislation is to that legislation as amended, re enacted or replaced, and includes any subordinate legislation issued under it.
(d) Mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included.
(e) A reference to a party to this Agreement or another agreement or document includes that party’s successors and permitted substitutes and assigns (and, where applicable, the party’s legal personal representatives).
(f) A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.
(g) A reference to information is to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets.
3 APPLICATION OF THIS AGREEMENT
3.1 This Agreement applies to use of and access to Whispli.
3.2 Where the User does not accept the terms and conditions of this Agreement, the User must immediately cease using Whispli.
3.3 This Agreement may be updated by the Company at its absolute discretion from time-to-time, and unless stated otherwise by the Company in writing, such updates shall come into effect for use of Whispli at the User’s next login after the User receives written notice of the update(s).
4 THE WHISPLI PRODUCT
4.1 Whispli is the product described in the Important Terms.
4.2 Whispli is only accessible to the User for the term set out in the Important Terms.
4.3 The User agrees and accepts that Whispli is:
(a) Hosted by the Company and shall only be installed, accessed and maintained by the Company, accessed using the internet or other connection to the Company servers and is not available ‘locally’ from the User’s systems; and
(b) Managed and supported exclusively by the Company via the hosting services used by the Company, and that no ‘back-end’ access to Whispli is available to the User unless expressly agreed in writing.
4.4 As a hosted and managed service, the Company reserves the right to upgrade, maintain, tune, backup, amend, add or remove features and Exercises, redesign, improve or otherwise alter Whispli.
4.5 The Company shall not exercise its rights under clause 4.4 in a manner that would intentionally cause the User to lose access to User Content or fundamentally decrease the utility of Whispli to the User, other than in accordance with the terms of this Agreement.
5.1 By accepting the terms and conditions of this Agreement, the User is granted a limited, non-exclusive and revocable license to access and use Whispli for the duration of this Agreement, in accordance with the terms and conditions of this Agreement.
5.2 The Company may issue the license to the User on the further terms or limitations (including the number of users or volume of use or transactions) as it sees fit.
5.3 The Company may revoke or suspend the User’s license(s) in its absolute discretion for any reason that it sees fit, including for breach of the terms and conditions in this Agreement by the User or any of its users. The Company will ordinarily advise the User of any suspension or revocation however it is under no obligation to do so.
6.1 The User agrees that it shall only use Whispli for legal purposes and shall not use it to engage any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by the Company in its discretion.
7 AUTHORISED USERS
7.1 The User shall authorise users to access Whispli in its absolute discretion. The Company accepts no liability for access to User Content by users authorised by the User or using login details of users authorised by the User.
7.2 The User is solely responsible for the security of its username (or I.D. number) and password for access to Whispli.
7.3 The User shall notify the Company as soon as it becomes aware of any unauthorised access of its Whispli account.
8 CUSTOMER DATA
8.1 The Company obtains no right, title or interest in User Content including any Intellectual Property found within it. The Company accepts no liability for the content of User Content.
8.2 The User is responsible for the accuracy, quality and legality of User Content and the User’s acquisition of it, and the users that create, access and/or use User Content.
8.3 Despite clause 8.1 the Company shall be authorised to permanently delete User Content where outstanding Fees remain unpaid in accordance with clauses 10 and 11.
8.4 The Company shall not access, use, modify or otherwise deal with User Content except where required by compulsion of law or upon the User’s authority (such as to provide support for Whispli).
9.3 The Company makes no warranty as to the suitability of Whispli in regards to the Client’s privacy obligations at law or contract, and it is the Client’s responsibility to determine whether Whispli is appropriate for the Client or Organisation’s circumstances.
10.1 The Client agrees to pay all Fees as and when they fall due and to the extent permissible by law. Fees are non-cancellable and/or non-refundable once ordered or paid.
10.2 The Company may introduce new services with corresponding Fees by giving the Client written notice of their availability and applicability.
10.3 The Company shall maintain all Fees for the term of the licence paid for by the Client.
10.4 The Company shall notify the User of any changes to existing Fees no less than 14 days before the end of the term of the Client’s licence.
10.5 The Company may revoke or suspend a User’s license to access Whispli for unpaid Fees without liability.
10.6 Where the Company:
(a) Is required to perform any services for a User outside of what is set out in this Agreement or otherwise in writing; and
(b) Is subject to delays caused by changes or complexities outside of its control (and not caused by its breach of this Agreement); then
The Client agrees that the Company shall be entitled to charge the Client an additional amount that is reasonable for the service performed.
10.7 All transactions are processed in Australian dollars and conversion rates may apply for foreign currencies.
10.8 GST is applicable to any Fees charged by the Company to Client’s within Australia. Unless expressed otherwise, all Fees shall be deemed exclusive of GST. The Company will provide the User with a Tax Invoice for its payment.
10.9 No refunds of Fees are offered other than as specified in this Agreement or as required by law.
11 INVOICING & PAYMENTS
11.1 The Company or an Authorised Reseller shall issue the Client a Tax Invoice for all Fees for which GST applies.
11.2 The terms of payment set out in the Fees shall apply.
11.3 Should the Client dispute a Tax Invoice, the Client must notify the Company or Authorised Reseller that issued the invoice of the disputed item within 5 Business Days of the date of the Tax Invoice. The Client must pay the amount of the Tax Invoice not in dispute within the prescribed payment period.
11.4 Overdue Tax Invoices shall accrue interest at the rate of 1.5% per month, or in default, the maximum rate of penalty interest prescribed under law.
12.1 Security. The Company takes the security of Whispli and the privacy of its users very seriously. The User agrees that the User shall not do anything to prejudice the security or privacy of the Company’s systems or the information on them.
12.2 Transmission. The Company shall do all things reasonable to ensure that the transmission of data occurs according to accepted industry standards. It is up to the User to ensure that any transmission standards meet the User’s operating and legal requirements.
12.3 Storage. The Company may limit the amount of data that the User stores in Whispli, and shall advise the User of such. Data that is stored with Whispli shall be stored according to accepted industry standards.
12.4 Backup. The Company shall perform backups of Whispli in as reasonable manner at such times and intervals as are reasonable for its business purposes. The Company does not warrant that it is able to backup or recover specific User Content from any period of time unless so stated in writing by the Company.
13.1 By accepting the terms of this Agreement the User agrees that the Company shall provide access to Whispli to the best of its abilities, however:
(a) Access to Whispli may be prevented by issues outside of its control; and
(b) It accepts no responsibility for ongoing access to Whispli.
13.2 Users may prepare for unscheduled unavailability of Whispli by printing hard copies of Reports and Reporting Information.
14 INTELLECTUAL PROPERTY
14.1 Trademarks. The Company has moral & registered rights in its trade marks and the User shall not copy, alter, use or otherwise deal in the marks without the prior written consent of the Company.
14.2 Proprietary Information. The Company may use software and other proprietary systems and Intellectual Property for which the Company has appropriate authority to use, and the User agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally. The User warrants that it shall not infringe on any third-party rights through the use of Whispli.
14.3 The Whispli Application. The User agrees and accepts that Whispli is the Intellectual Property of the Company and the User further warrants that by using Whispli the User will not:
(a) Copy Whispli or the services that it provides for the User’s own commercial purposes; and
(b) Directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in Whispli or any documentation associated with it.
14.4 Content. All content (with the exception of User Content) remains the Intellectual Property of the Company, including (without limitation) any source code, analytics, insights, ideas, Exercises, enhancements, feature requests, suggestions or other information provided by the User or any other party with respect to Whispli.
14.5 Warranty. The Company represents and warrants to the Client/User that:
(a) The use of the Whispli Products by the Client/User will not infringe the intellectual property rights of any third party; and
(b) Whispli and the Whispli Products will comply with all applicable laws including, but not limited to, any laws with respect to privacy or the handling of personally identifiable information.
15.1 The information and classes of information set out in the Important Terms are Confidential Information for the purposes of this Agreement. In default, information relating to the business operations, personal information and other information that should be confidential is Confidential Information.
15.2 Each party acknowledges and agrees that:
(a) The Confidential Information is secret, confidential and valuable to the disclosing party (Discloser);
(b) It owes an obligation of confidence to the Discloser concerning the Confidential Information;
(c) It must not disclose the Confidential Information to a third party except as permitted in this Agreement;
(d) All Intellectual Property rights remain vested in the Discloser but disclosure of Confidential Information does not in any way transfer or assign any rights or interests in the Intellectual Property to the receiving party; and
(e) Any breach or threatened breach by the receiving party of an obligation under this Agreement may cause the Discloser immediate and irreparable harm for which damages alone may not be an adequate remedy. Consequently the Discloser has the right, in addition to other remedies available at law or in equity, to seek injunctive relief against the receiving party (and its agents, assigns, employees, officers and directors, personally) or to compel specific performance of this clause.
15.3 A party must notify the Discloser in writing, giving full details known to it immediately, when it becomes aware of:
(a) Any actual, suspected, likely or threatened breach by it of clause 15.1;
(b) Any actual, suspected, likely or threatened breach by any person of any obligation in relation to the Confidential Information; or
(c) Any actual, suspected, likely or threatened theft, loss, damage, or unauthorised access, use or disclosure of or to any Confidential Information.
15.4 The receiving party must promptly take all steps that the Discloser may reasonably require and must co-operate with any investigation, litigation or other action of the Discloser or of a related body corporate if there is:
(a) Any actual, suspected, likely or threatened breach of a term of this Agreement; or
(b) Any theft, loss, damage or unauthorised access, use or disclosure of or to any Confidential Information that is or was in its possession or control.
16 LIABILITY & INDEMNITY
16.1 The User agrees that it uses Whispli at its own risk.
16.2 The User acknowledges that Whispli accepts no liability for the information that passes between Users.
16.3 The User agrees that it has had reasonable opportunity to obtain legal advice on this Agreement.
16.4 Subject to this clause, the User acknowledges that the Company is not responsible for the conduct or activities of any user and that the Company is not liable for such.
16.5 The User agrees to indemnify the Company for any loss, damage, cost or expense that the Company may suffer or incur as a direct result of the User’s misuse of or improper conduct in connection with Whispli or the Whispli Products.
16.6 In no circumstances will the Company be liable for any incidental, consequential or indirect damages, loss or corruption of data, loss of profits, employment, income, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the User’s access to, or use of, or inability to use Whispli, the Whispli Products or any content, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not the Client, User or Company knew or should have known of the possibility of such damage, to business interruption of any type, whether in tort, contract or otherwise.
16.7 Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted or modified. Apart from those that cannot be excluded, the Company and the Company’s related entities exclude all conditions and warranties that may be implied by law. To the extent permitted by law, the Company’s liability for breach of any implied warranty or condition that cannot be excluded is restricted, at the Company’s option to:
(a) The re-supply of services or payment of the cost of re-supply of services; or
(b) The replacement or repair of goods or payment of the cost of replacement or repair.
16.8 The Company agrees to indemnify the Client/User for any loss, damage, cost or expense that the Client/User may suffer or incur as a direct result of a failure by Whispli or the Whispli Products, or an inherent fault with the Whispli Products.
16.9 Each Party (the “Indemnifying Party”) indemnifies and holds the other Party (the “Indemnified Party”) harmless against any and all third party claims, costs, damages, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with infringement or alleged infringement of any third party’s intellectual property right as a result of the Indemnifying Party’s acts or omissions except to the extent that any such claims, costs, damages, losses, liabilities and expenses arise as a result of the Indemnified Party’s acts or omissions.
17.1 Where a party is in breach of this Agreement, the other party may issue a written notice (Breach Notice) requiring the party in breach that must set out:
(a) The nature of the breach;
(b) The provisions of the Agreement that are alleged to have been breached;
(c) A reasonable timeframe to remedy the breach in no less than 10 Business Days; and
(d) The action required to remedy the breach.
17.2 Where a party issues a compliant Breach Notice in accordance with clause 17.1, the receiving party shall be required to respond and/or remedy the breach as so set out in the Breach Notice. Failure to respond in writing setting out:
(a) The steps taken to remedy the breach; or
(b) Why the party believes it is not in breach as put forward in the Breach Notice,
(c) Shall not in itself confirm the alleged breach but shall be in itself a breach of this Agreement.
17.3 Failure to remedy a breach set out in a Breach Notice shall be a material breach of this Agreement (Material Breach).
18.1 Breach. Where a party is in Material Breach of this Agreement, the other party may terminate this Agreement by giving written notice of termination, which shall become effective 5 Business Days after the date of the notice.
18.2 Insolvency. Either party may terminate this Agreement immediately by notice, if either party:
(a) Stops or suspends or threatens to stop or suspend payment of all or a class of its debts;
(b) Is insolvent within the meaning of section 95A of the Corporations Act;
(c) Fails to comply with a statutory demand (within the meaning of section 459F(1) of the Corporations Act) unless:
i The debt to which the statutory demand relates is discharged within 15 Business Days of the date of the failure; or
ii The party demonstrates to the satisfaction of the other party (acting reasonably) that it is able to pay all its debts as and when they become due and payable;
(d) Has an administrator appointed in respect of it;
(e) Has a controller within the meaning of section 9 of the Corporations Act or similar officer appointed to the whole or a substantial part of its assets or undertaking and that controller or similar officer is not removed within 15 Business Days of the appointment;
(f) Has an order made or a resolution passed for its winding up or dissolution or it enters into an arrangement, compromise or composition with or assignment for the benefit of its creditors or a class of them;
(g) Has any security enforced over, or a distress, execution or other similar process levied or served against, the whole or a substantial part of its assets or undertaking; or
(h) Is subject to any event, which, under the law of any relevant jurisdiction, has an analogous or equivalent effect to any of the events listed above.
18.3 Expiry or termination of this Agreement is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of this Agreement up to the date of expiry or termination.
18.4 The rights and obligations under the relevant provisions of clauses 7, 8, 9, 10, 11, 14, 15, 16, 17, 18, 19, 20, 21 and 21.6 survive termination of this Agreement.
19.1 All disputes shall be handled in accordance with the Company’s dispute resolution policy.
19.2 Where the Company does not have a relevant dispute resolution policy for a type of dispute, the following process shall apply:
(a) Negotiation. If there is a dispute between the parties relating to or arising out of this Agreement, then within 5 Business Days of a party notifying the other party of a dispute, senior representatives from each party must meet (or discuss directly via the telephone or internet) and use all reasonable endeavours acting in good faith to resolve the dispute by joint discussions;
(b) Mediation. If the dispute between the parties relating to or arising out of this Agreement is not resolved within five Business Days of notification of the dispute under Clause 19.1, the parties must agree to submit the dispute to mediation, administered by lawyers engaged in alternative dispute resolution;
(c) Arbitration. If the dispute between the parties relating to or arising out of this Agreement is not settled by mediation under Clause (b), either party may by written notice to the other refer the dispute to arbitration administered by the Institute of Arbitrators Australia. The arbitrator will be agreed between the parties from a panel suggested by the President of the Institute of Arbitrators Australia or failing Agreement, an arbitrator will be appointed by the President of the Institute of Arbitrators Australia; and
(d) Court proceedings. A party may not commence court proceedings in relation to a dispute relating to or arising out of this Agreement until it has exhausted the procedures in this clause (d) unless the party seeks appropriate injunctive or other interlocutory relief to preserve property or rights or to avoid losses that are not compensable in damages.
20 FORCE MAJEURE
20.1 If a party is prevented in whole or in part from carrying out its obligations under this Agreement as a result of Force Majeure, it will promptly notify the other party accordingly. The notice must:
(a) Specify the obligations and the extent to which it cannot perform those obligations;
(b) Fully describe the event of Force Majeure;
(c) Estimate the time during which the Force Majeure will continue; and
(d) Specify the measures proposed to be adopted to remedy or abate the Force Majeure.
20.2 Following a notice of Force Majeure in accordance with clause 20.1 and while the Force Majeure continues, the obligations which cannot be performed because of the Force Majeure will be suspended, other than obligations to pay money that is due and payable.
20.3 The party that is prevented from carrying out its obligations under this Agreement as a result of Force Majeure must remedy the Force Majeure to the extent reasonably practicable and resume performance of its obligations as soon as reasonably possible.
20.4 The party that is prevented from carrying out its obligations under this Agreement as a result of Force Majeure must take all action reasonably practicable to mitigate any loss suffered by the other party as a result of the party’s failure to carry out its obligations under this Agreement.
20.5 The term of this Agreement will not be extended by the period of Force Majeure.
21 ELECTRONIC COMMUNICATION, AMENDMENT AND ASSIGNMENT
21.1 The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.
21.2 The User can direct notices, enquiries, complaints and so forth to the Company as set out in this Agreement. The Company will notify the User of a change of details from time-to-time.
21.3 The Company will send the User notices and other correspondence to the details that the User submits to the Company, or that the User notifies the Company of from time-to-time. It is the User’s responsibility to update its contact details as they change.
21.4 A consent, notice or communication under this Agreement is effective if it is sent as an electronic communication unless required to be physically delivered under law.
21.5 Notices must be sent to the parties’ most recent known contact details.
21.6 The User may not assign or otherwise create an interest in this Agreement.
21.7 The Company may assign or otherwise create an interest in its rights under this Agreement by giving written notice to the User.
22.1 Special Conditions. The parties may agree to any Special Conditions to this Agreement in writing.
22.2 Prevalence. To the extent that the Important Terms are inconsistent with the General Conditions, the terms of the Important Terms will prevail. To the extent that the Special Conditions are inconsistent with the Important Terms, the Special Conditions will prevail.
22.3 Disclaimer. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Agreement.
22.4 Relationship. The relationship of the parties to this Agreement does not form a joint venture or partnership.
22.5 Waiver. No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
22.6 Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to this Agreement and the transaction facilitated by it.
22.7 Governing Law. This Agreement is governed by the laws of the state set out in item M of the Important Terms. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.
22.8 Severability. Any clause of this Agreement, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Agreement.
END GENERAL CONDITIONS