Platform Terms and Conditions
The Customer accepts this Agreement upon completing an in-app purchase through the Platform or by executing the relevant Order. By completing the in-app purchase through the Platform or executing the relevant Order, and accessing or using the Platform, the Customer agrees to be bound by the terms and conditions of this Agreement.
1. Definitions and InterpretatioN
1.1 Definitions
In this Agreement, unless the context requires otherwise:
Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in New South Wales, Australia;
Claim means actions, suits, causes of action, proceedings, claims or demands;
Commencement Date means the commencement date of this Agreement, as specified in the Order;
Confidential Information means any information, specifications, documentation, manuals, data, source code or object code which a Party may have imparted or does impart to the other relating to the business of that Party or of its Related Bodies Corporate, clients or customers, including but not limited to all know-how, technical and financial information, materials and any other commercially valuable or sensitive information in whatever form, including inventions (whether or not reduced to practice), trade secrets, formulae, graphs, drawings, samples, devices, models and any other materials or information of whatever description, which a Party regards as confidential, proprietary or of a commercially sensitive nature. In the case of LX, the Platform and Documentation form part of its Confidential Information. Confidential Information excludes: (a) information which is lawfully in the public domain prior to its disclosure to the Party; (b) information which enters the public domain otherwise than as a result of an unauthorised disclosure by a Party or any of its Related Bodies Corporate, or by a third party who has obtained such information from a Party or any of its Related Bodies Corporate; (c) information which is or becomes lawfully available to the Party from a third party who has the lawful power to disclose such information to the Party on a non-confidential basis; or (d) information which is rightfully known or independently developed by the Party prior to the date of disclosure,
Corporations Act means the Corporations Act 2001 (Cth);
Customer Equipment means the Customer's owned or leased plant and equipment;
Device means any device, equipment, hardware or tools used by a User or the Customer to collect Log Data or Sensor Data;
Discloser means a discloser of Confidential Information;
Documentation means any user guide and other materials related to the Platform which are provided to the Customer in print and/or in machine readable format, to assist the Customer to access or use the Platform;
End Date means the end date of this Agreement, as specified in the Order;
Force Majeure Event means any fire, flood, earthquake, cyclone, or act of God; riot, civil disorder, rebellion or revolution; war or terrorist act; epidemic or pandemic (whether declared or undeclared) or other public health emergency; or other similar cause beyond the reasonable control of the non-performing Party, but in each case only if and to the extent that the non-performing Party is without fault in causing the event and the event or its effect could not have been prevented by reasonable precautions (such as disaster recovery or business continuity procedures) or mitigated by the implementation of reasonable alternatives;
GST means any tax, levy, charge or impost implemented under the GST Act;
GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth) or an Act of the Parliament of the Commonwealth of Australia substantially in the form of, or which has a similar effect to, the GST Act;
Intellectual Property Rights means all intellectual property rights including current and future registered and unregistered rights in respect of copyright, designs, circuit layouts, trade marks, trade secrets, know-how, confidential information, patents, invention and discoveries and all other intellectual property as defined in article 2 of the convention establishing the World Intellectual Property Organisation 1967, whether or not now existing, and whether or not registered or registrable, and includes any right to apply for the registration of such rights, and includes all renewals and extensions;
Insolvency Event means in respect of a Party, the occurrence of one or more of the following events:
(a) an application or order is made for the winding up or dissolution or a resolution is passed or any steps are taken to pass a resolution for the winding up or dissolution of the company; (b) a provisional liquidator, liquidator or person having a similar function under the laws of any relevant jurisdiction is appointed in respect of the company or any action is taken to appoint such a person and the action is not stayed, dismissed or withdrawn within 10 Business Days; (c) the company is deregistered under the Corporations Act or other legislation or notice of its proposed deregistration is given to it; or (d) anything analogous to or of a similar effect to anything described above under the Laws of any relevant jurisdiction;
Interest Rate means the then-current Commonwealth Bank of Australia business overdraft index rate;
Licence Fee means the fee payable for the Platform each month, as specified in Item 4 of the Agreement Details;
Log Data means data about the identity, location, status and performance of a Device;
Non-Excludable Terms mean terms, conditions and warranties implied by applicable law into contracts for the supply of goods or services, and which the applicable law expressly provides may not be excluded, restricted or modified or may be excluded, restricted or modified only to a limited extent;
Order means a document (including a quote or an in-app purchase) in a form acceptable to LX specifying the commercial details relating to the provision of the Platform to the Customer by LX;
Party means a party to this Agreement and Parties means both of them;
Platform means the INCYT platform that houses Sensor Data and location data collected from Devices, and provides applications on which the Customer may view such data, as well as set alerts and manage multiple Devices, which is operated on a "software as a service" basis by or on behalf of LX;
Personal Information has the meaning given in the Privacy Act;
Privacy Act means the Privacy Act 1988 (Cth);
Recipient means a recipient of Confidential Information;
Related Body Corporate has the meaning it is given in the Corporations Act;
Renewal Period has the meaning specified in Item 3 of the Agreement Details;
Sensor Data means unmodified sensor data transmitted to a data end-point operated by or on behalf of LX;
Term has the meaning given in clause 2;
Third Party Product means any product or service that is supplied to the Customer or a User by or on behalf of a third party;
User means in respect of the Customer, an employee, officer, contractor or agent authorised to use the Platform by the Customer; and
User Data means any data input into the Platform by a User or the Customer.
2. Interpretation
The following apply in the interpretation of this Agreement, unless the context otherwise requires:
(a) clause and subclause headings are for reference purposes only;
(b) the singular includes the plural and vice versa;
(c) words denoting any gender include all genders;
(d) a reference to a person includes any other entity recognised by law and vice versa;
(e) where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(f) any reference to a party to this document includes its successors and permitted assigns;
(g) any reference to any agreement or document includes that agreement or document as amended at any time;
(h) the use of the word includes or including is not to be taken as limiting the meaning of the words preceding it;
(i) the expression at any time includes reference to past, present and future time and performing any action from time to time;
(j) an agreement, representation or warranty by two or more persons binds them jointly and severally and is for the benefit of them jointly and severally;
(k) when a thing is required to be done or money is required to be paid under this document on a day which is not a Business Day, the thing must be done and the money paid on the immediately preceding Business Day; and
(l) a reference to a statute includes all regulations and amendments to that statute and any statute passed in substitution for that statute or incorporating any of its provisions to the extent that they are incorporated.
1.3 Inconsistency
The body of this Agreement and the Agreement Details (the Agreement) set out the terms and conditions which govern the provision of the Platform by LX to the Customer. If there is an inconsistency between the parts of the Agreement, the body of this Agreement will apply to the extent of the inconsistency.
2. Term
This Agreement commences on the Commencement Date and continues until the End Date, and automatically renews for successive Renewal Periods (as specified in the Agreement Details, if any), unless terminated earlier in accordance with clause 14 (Term).
3. Grant of licence
In consideration of the Licence Fee, LX grants the Customer, and the Customer accepts, on the terms and conditions contained in this Agreement, a non-transferable, non-exclusive licence to access and use the Platform for the purposes specified in the Documentation.
4. Customer obligations
4.1 General Obligations
The Customer agrees and undertakes to:
(a) provide LX with all information and documentation as reasonably requested by, or as otherwise necessary for LX to provide the Platform; and (b) keep the contact and other account information that LX holds about it up-to-date.
4.2 Acceptable use of the Platform
(a) The Customer will not (and will ensure Users do not) use, add any information or material to, or alter any information or material on, the Platform:
- unless it holds all necessary rights, licences, permits and consents to do so;
- in a manner that would result in a breach of any law, regulation, rule, code or other legal obligation, including the Privacy Act;
- in a manner that is or would reasonably be considered to be obscene, inappropriate, defamatory, disparaging, indecent, seditious, offensive, pornographic, threatening, abusive, liable to incite racial hatred, discriminatory, blasphemous, in breach of confidence, or in breach of any obligation relating to privacy;
- in a manner that infringes the rights of any person (including Intellectual Property Rights);
- in a manner that is false, misleading, deceptive or inaccurate; or
- in a manner that may or would bring LX or the Platform into disrepute.
(b) Further, the Customer will not (and will ensure Users do not):
- use the Platform or allow the Platform to be used in respect of any business other than the Customer;
- access the Platform through the use of a robot, spider, scraper or other automated means;
- cause or allow the Platform to be reverse-engineered, disassembled or de-compiled, or used (except as expressly authorised in this Agreement) any part of the Platform or its features or functionality, or information or materials contained on or obtained from or through the Platform;
- allow the Platform to be used by, or disclosed to, any person other than the Users;
- provide access to any part of the Platform to third parties;
- sell, resell, license or sublicense access to the Platform, or archive, modify, reproduce, redistribute, display, perform, publish, license, create derivative works from, offer for sale to any person, or frame or mirror the Platform or any part of it;
- access or use the Platform in order to build a competing product or service, or to copy any feature or function of the Platform;
- circumvent, remove, amend, deactivate, degrade or thwart any security protections on the Platform, or attempt to do so;
- introduce any malicious code or damaging content, information or material to the Platform, or otherwise send or transmit any content, information or material that is designed to, or that has the effect of, interrupting, destroying or limiting the Platform's functionality or LX's or a third party's computing systems or networks;
- interfere with or disrupt access to or use of the Platform by anyone authorised by LX;
- remove or alter any of LX's Intellectual Property Rights notices embedded in or accessible on the Platform; or
- use the Platform to communicate unsolicited direct marketing communications.
(c) The Customer acknowledges and agrees that LX is under no obligation to monitor any information or material, including any User Data, a User may transmit or otherwise make available through the Platform, however LX may remove any information or material, including User Data, from the Platform at any time in its sole discretion.
4.3 User Data
The Customer is responsible for: (a) the accuracy, completeness and legality of its User Data and legality of the means by which the Customer acquired its User Data; (b) effecting and maintaining appropriate security measures to secure its, and the Customer's, access to and use of the Platform, and to prevent the unauthorised access to or use of the Platform or to the User Data when at rest at the User's or the Customer's systems or in transit between the User's or the Customer's systems and the Platform; and (c) notifying LX promptly of any breach of security or any unauthorised access to or use of the Platform or User Data (regardless of the cause of such breach or unauthorised access or use).
4.4 Third Party Products
If the Customer or a User uses the Platform in conjunction with any Third Party Products, the Customer acknowledges and agrees that: (a) any issues relating to its or a User's access to and use of those Third Party Products, or relating to any exchange of data or settlement of funds between the Customer and the third party or the Third Party Product, are solely between the Customer and the applicable third party and are not matters for which LX is responsible or liable; (b) LX does not warrant or support any Third Party Products or any interface between them and the Platform; and (c) LX is not liable for any disclosure, modification or deletion of User Data or Personal Information resulting from access to or use of those Third Party Products or any exchange of data with them.
5. LX Obligations
5.1 Provision of Documentation
LX will provide the Customer with a copy of the Documentation, if necessary for the use of the Platform.
5.2 Platform modifications
LX may modify the Platform, including by adding or removing features and functionality from time to time, and any changes will be communicated to the Customer through the Platform.
6. Fees
6.1 Licence Fee
(a) The Customer will pay the Licence Fees specified and invoiced by LX in accordance with the Order.
(b) The Parties agree that LX may revise the Fees at any time by providing at least 30 days written notice to the Customer, provided that the Customer may terminate the this Agreement at any time during that notice period by notice in writing.
6.2 Invoicing and payment
(a) LX will issue invoices for the Licence Fees in accordance with the Order and the Customer must pay all undisputed invoices within 14 days from the date of invoice, unless otherwise specified in the Agreement Details.
(b) If the Customer disputes in good faith any amount on an invoice provided by LX, then the Customer is not obligated to pay the disputed amount until the dispute is resolved, but must pay all other undisputed amounts. Any disputed invoice will be resolved in accordance with clause 15.
(c) Subject to clause 6.2(b), if the Customer fails to pay any Licence Fee by the due date, LX may charge interest at the Interest Rate on the outstanding Licence Fee or any other monies due and unpaid by the Customer, until such time as the Customer has paid in full, the outstanding amount and any interest accrued on the outstanding amount, and the Customer will pay to LX any reasonable costs incurred by LX in relation to collection of any amounts owing.
6.3 Taxes
(a) Unless expressly stated otherwise, all amounts payable under this Agreement exclude GST.
(b) If GST is imposed on any supply made under or in accordance with this Agreement, the recipient of the taxable supply must pay an additional amount equal to the GST payable on or for the taxable supply. Payment of the additional amount will be made at the same time as payment for the taxable supply is required to be made in accordance with this Agreement.
(c) If this Agreement requires a Party to pay for, reimburse or contribute to any expense, liability, indemnity or outgoing (reimbursable expense) suffered or incurred by another Party, the amount required to be paid, reimbursed or contributed by the first Party will be the sum of:
- the amount of the reimbursable expense less the input tax credits (if any) to which the other Party is entitled in respect of the reimbursable expense; and
- if the other Party’s recovery from the first Party is a taxable supply, any GST payable in respect of that supply.
7. Customer Equipment
Subject to any negligent act or omission of LX and to the extent permitted by any applicable Laws, the Customer remains solely responsible and liable for: (a) its use of the Devices in conjunction with its Customer Equipment or Third Party Products; and (b) its access and use of its Customer Equipment, and indemnifies LX against all Claims, losses, liabilities, damage and injury incurred by the Customer, LX or any third party by or as a result of use of such Devices, Customer Equipment or Third Party Products.
8. Intellectual Property Rights
8.1 Ownership
(a) The Customer acknowledges that LX owns or licences all right, title to and interest in all Intellectual Property Rights in the Platform and Documentation supplied by LX to the Customer under this Agreement.
(b) Nothing in this Agreement transfers ownership of the Intellectual Property Rights subsisting in the Platform or Documentation except as expressly permitted by the terms of this Agreement.
8.2 Third party claims
On becoming aware of any claim or allegation by a third party against the Customer alleging that an authorised use by the Customer or a User of the Platform in Australia infringes the rights of that third party, the Customer must: (a) promptly notify LX in writing, giving full particulars of any infringement, suspected infringement or alleged infringement; (b) give LX the option to conduct the defence of such a claim, including negotiations for settlement or compromise prior to or after the institution of legal proceedings; (c) provide LX in conducting the defence of such a claim; (d) authorise LX to:
- modify the Platform or replace components or parts of components, to render the Platform non-infringing; or
- obtain for the Customer benefit the authority to continue the access and use of the Platform,
however, if neither clause 8.2(d)(i) nor clause 8.2(d)(ii) can be achieved using reasonable commercial efforts, LX may terminate this Agreement by written notice to the Customer that effect.
9. Data
9.1 Ownership of Log Data and Sensor Data
(a) LX may gather and use Log Data to properly manage and improve the Platform.
(b) Ownership of Sensor Data generated through the use of the Platform will vest in the Customer on creation.
9.2 Licence to Sensor Data and User Data
(a) The Customer acknowledges and agrees that LX may use User Data, Log Data and Sensor Data for the purposes of providing the Platform and/or other services to the Customer.
(b) The Customer grants LX a royalty-free, non-exclusive, transferable, and sublicensable licence to use, modify, adapt, enhance, improve and otherwise exploit the User Data and Log Data for the purposes of providing the Platform and/or other services to the Customer.
(c) The Customer acknowledges and agrees that LX may aggregate anonymous and/or de-identified data, including regarding the Customer's use of the Platform, aggregated and/or de-identified User Data or Sensor Data, potential improvements, and analytics (collectively, Analytics). LX will own all right title and interest in and to such Analytics, and the Intellectual Property Rights relating to them. To avoid doubt, such Analytics are LX's Confidential Information.
10. Data
If the performance of rights and obligations under this Agreement involves the handling of any Personal Information, then each Party must: (a) comply with all applicable provisions of the Privacy Act; (b) comply with all reasonable requests or directions of the other Party in connection with an obligation of the other Party under the Privacy Act; (c) use the Personal Information only for the purposes of performing its obligations under this Agreement; (d) not transfer that Personal Information outside of Australia or allow persons outside of Australia to have access to that Personal Information, unless the other Party has consented in writing to such transfer or access; (e) take all necessary steps to ensure that such Personal Information is protected against misuse, loss and unauthorised access; and (f) without undue delay, notify the other Party if it becomes aware of a breach of any applicable privacy laws in connection with this Agreement.
11. Confidentiality
11.1 Treatment of Confidential Information
Each Party acknowledges that the Confidential Information of the other Party is valuable to the other Party. Each Party undertakes to keep the Confidential Information of the other Party secret, and to protect and preserve the confidential nature and secrecy of the Confidential Information of the other.
11.2 Use of Confidential Information
A Recipient may only use the Confidential Information of the Discloser for the purposes of performing the Recipient's obligations or exercising the Recipient's rights under this Agreement.
11.3 Disclosure of Confidential Information
A Recipient may not disclose Confidential Information of the Discloser to any person except: (a) representatives, legal advisers, auditors and other consultants of the Recipient who require it for the purposes of performing its obligations or exercising its rights under this Agreement and then only on a need to know basis; or (b) if required to do so by law or a stock exchange.
11.4 Return of Confidential Information
Upon the expiry or termination of this Agreement, the Recipient must promptly deliver to the Discloser all documents or other materials containing or referring to the Discloser's Confidential Information which are in the Recipient's possession, power or control (or in the possession, power or control of persons who have received the Confidential Information from the Recipient under clause 11.3).
12. Warranties
12.1 Mutual warranties
Each Party warrants that: (a) it has the power and authority to enter into and perform its obligations under this Agreement and that the execution of this Agreement by it has been duly and validly authorised by all necessary corporate action; (b) it has obtained all necessary consents and approvals required for it to lawfully enter into this Agreement; and (c) its obligations under this Agreement are valid and binding and enforceable against it in accordance with their terms.
12.2 LX warranties
(a) The Customer acknowledges and agrees that the Platform cannot be guaranteed to be error-free, and that the existence of any error does not amount to a breach of this Agreement.
(b) The Customer further acknowledges and agrees that the availability of the Platform is subject to availability and visibility of satellites, the telecommunication signals provided by third parties, battery life of devices on which the Platform is installed, and the frequency and size of data transmissions, and that any unavailability of the Platform as a result of the foregoing does not amount to a breach of this Agreement.
(c) LX warrants:
- that the Platform as licensed under this Agreement, if properly accessed and used, will comply with the specifications set out in the Documentation; and
- that it has the right to grant the licence in clause 3 and that the Customer's access and use of the Platform in accordance with this Agreement will not, to the best of LX's knowledge, infringe the rights of any third party in Australia.
- Except as required by any Non-Excludable Terms and any express warranties in the Agreement, all conditions, warranties, terms, and obligations expressed or implied by law or otherwise relating to the performance of LX’s obligations under, or any other services supplied by LX in connection with, this Agreement are excluded.
13. Liability
13.1 Limitation on liability
(a) To the extent that the LX is not permitted to lawfully exclude its liability under clause 13.6, this clause 13.1 will apply.
(b) To the extent permitted by law, LX's total aggregate liability whether in tort (including negligence), contract, breach of statutory duty, misrepresentation, restitution or otherwise, is limited to:
- the Licence Fees paid under this Agreement in the immediately preceding 12 month period; or
- in the case of a period less than 12 months, the Licence Fees payable in the 12 months following the Commencement Date.
13.2 No consequential loss
To the extent permitted by law, neither Party is liable whether in tort (including for negligence), contract, breach of statutory duty, misrepresentation, restitution or otherwise for indirect loss of profits, loss of business, depletion of goodwill, loss or corruption of data or information, or pure economic loss, or for any other special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement.
13.3 Proportionate liability
A Party's liability under this Agreement will be reduced to the extent that the other Party caused or contributed to the relevant liability or the act giving rise to the liability.
13.4 Avoiding or minimising loss
A Party that incurs a loss under this Agreement must take reasonable steps to avoid or minimise the loss.
13.5 Indemnity
(a) o the extent permitted by law, LX indemnifies and will keep indemnified the Customer against any and all Claims arising out of:
- a Claim by a third party that the Platform or Documentation infringes the Intellectual Property Rights of that third party; and
- death or personal injury.
(b) Clause 13.5(a) will not apply to the extent the infringement is caused by the Customer:
- failing to promptly provide LX with written notice of such a Claim against the Customer;
- failing to give LX sole control of the defence and settlement of such a Claim against the Customer; or
- failing to provide LX with all reasonable assistance in relation to the defence and settlement of such a Claim.
(c) To the extent permitted by law, the Customer indemnifies and will keep indemnified LX from and against any Claims that LX suffers or incurs, whether or not contemplated by the Parties, as a result of any:
- breach of this Agreement by the Customer;
- personal injury (including sickness or death) caused by an act or omission of the Customer or a User, including through negligence;
- negligent or unlawful act or omission, or wilful misconduct, by the Customer or a User; and
- Claims by the Customer or a third party against LX arising because of any act or omission of the Customer in connection with this Agreement, except to the extent that the Claim arises because of LX's negligence or breach of this Agreement.
13.6 Exclusions from liability
To the extent permitted by law, LX will not be liable for loss (including under a warranty or indemnity) suffered by the Customer, or failure to provide the Platform, to the extent caused or contributed to by any of the following: (a) use of the Platform in combination with firmware, software, materials or services not supplied to the Customer by LX; (b) use of the Platform in breach of this Agreement; or (c) operation or use of the Platform other than in accordance with the Documentation and other relevant user documentation, or in accordance with normal business use and requirements.
13.7 Non-Excludable Terms
(a) Nothing in this Agreement excludes or attempts to exclude the Non-Excludable Terms.
(b) Where any Non-Excludable Terms apply, the liability of LX for a breach of a Non-Excludable Term implied into this Agreement is limited to the maximum extent permitted by law.
(c) If the Customer is a consumer under the Australian Consumer Law, certain guarantees and rights may be conferred on the Customer which cannot be excluded, restricted or modified. If so, the Parties agree that, to the maximum extent permitted by law, LX’s liability under those guarantees and rights is limited to the re-supply of the relevant goods or services or the payment of the cost of re-supplying the relevant goods or services.
14. Termination
14.1 Suspension
Without limiting LX's right to terminate, LX may suspend the Customer's access to or use of the Platform in the following circumstances: (a) without limiting LX's rights under clause 6.2(c), the Customer fails to pay any Licence Fee payable when due and such Licence Fees has been due and owing for more than 60 days; and (b) any use of the Platform in breach of this Agreement by the Customer or a User that, in LX's sole discretion threatens the security, integrity or availability of the Platform, provided that LX will use reasonable efforts under the circumstances to provide the Customer with written notice and an opportunity to remedy such violation or threat prior to any such suspension.
14.2 Termination for convenience
Either Party may terminate this Agreement for convenience by giving the other Party not less than 90 days' written notice.
14.3 Termination for cause
(a) This Agreement may be terminated at any time during the Term immediately by a Party if the other Party:
- is in breach of any obligation under this Agreement and it has not rectified the breach within 30 Business Days of receiving written notice requiring it to do so;
- is no longer able to perform its obligations under this Agreement due to a change in Law which prevents a Party from performing its obligations under this Agreement; or
- suffers an Insolvency Event.
- Without limiting clause 14.3(a), LX may terminate this Agreement if the Customer fails to make payment and has not rectified the non-payment within seven Business Days of receiving written notice requiring it to do so.
14.4 Consequences of termination
(a) Upon expiry of this Agreement or termination of this Agreement in accordance with this clause 14:
- the licence granted in clause 3 is terminated immediately;
- where the Customer terminates this Agreement pursuant to clause 14.2, the Customer agrees to pay for any costs or expenses (including any licence fees) incurred directly under this Agreement by LX as a result of early termination; and
- all amounts due and payable to LX, whether or not invoiced, including any Licence Fee on a pro-rata basis and/or for the Platform, as at the date of termination become a debt due and payable on the effective date of termination.
(b) After expiry or termination of this Agreement, LX may from time to time in its sole discretion provide the Customer with maintenance patches or provide the Customer with upgrades to the Platform. Installation and use of such patches and updates will be subject to the terms set out in this Agreement.
(c) Termination of this Agreement will not prejudice any right or remedy of either Party in respect of any antecedent breach by the other Party under this Agreement.
14.5 Survival of rights
Termination of this Agreement does not affect the rights of a Party which have accrued up to the date of such termination.
15. Dispute Resolution
15.1 Dispute notice
If any dispute or difference arises between the Parties with respect to the construction, effect or operation of this Agreement, or with respect to any matter connected with this Agreement or arising out of it (Dispute), the Parties must take the following steps to attempt to resolve the Dispute:
(a) either Party may serve a written notice on the other Party stating the nature of the Dispute and invoking the dispute resolution process set out in this clause 15 (a Dispute Notice); and (b) the Parties must meet within 10 Business Days after the date of the receipt of the Dispute Notice, or such other period as the Parties agree in writing, and negotiate in good faith to resolve the Dispute.
15.2 Mediation
lf the Dispute is not resolved in accordance with this clause 15 within 20 Business Days of the date of the Dispute Notice, or such other period as the Parties agree in writing, the Dispute will be referred to mediation with the Parties to agree on a mediator who possesses the requisite skills and qualifications to assist the Parties in resolving the Dispute. The Parties will equally share all the costs of the mediation, including without limitation any fees charged by mediator.
15.3 Commencing proceedings
Other than proceedings for urgent interlocutory relief, a Party may not commence or maintain any proceedings in any court with respect to a Dispute unless and until that Party has complied with the procedures in this clause 15.
16. General
16.1 Relationship of the Parties
Nothing in this Agreement is intended to create a partnership, joint venture, or agency relationship between the Parties, and each of the Parties agree that they are entering into this Agreement only as independent contractors.
16.2 Force Majeure
(a) Neither Party will be liable to the other for any delay or failure to perform its obligations under this Agreement as a result of a Force Majeure Event.
(b) If a Force Majeure Event arises:
- the affected Party must notify the other Party of the extent to which the affected Party is unable to perform its obligations;
- the affected Party will use its reasonable endeavours to mitigate the effect of the Force Majeure Event; and
- the affected Party will not be liable to the other Party for any Claim the other Party suffers or incurs as a result of that Force Majeure Event.
(c) A Force Majeure Event does not relieve a Party from liability for an obligation which arose before the occurrence of that event, nor does that event affect the obligation to pay money in a timely manner.
(d) If the Force Majeure Event continues for a period of more than 30 days, either Party may terminate this Agreement by written notice to the other Party.
16.3 Notices
Any notice given in connection with this Agreement must be in legible writing and must be addressed to a Party and either hand delivered to, or sent by post to the relevant address or emailed to the relevant email address, as set out in Item 2 of the Agreement Details. A notice is taken to have been given: (a) in the case of being hand delivered, on the date on which it is delivered; (b) in the case of being sent by post, on the fifth (ninth if sent to an address in another country) day after the date of posting; or (c) in the case of delivery by email, at the time sent, unless the sender is notified, by a system or person involved in the delivery of the email, that the email was not successfully sent.
16.4 Governing Law
This Agreement is governed by the laws of New South Wales, Australia. Each Party submits to the non-exclusive jurisdiction of the courts of New South Wales and its appellate courts.
16.5 Counterparts
This Agreement may be executed in any number of counterparts, all of which taken together are deemed to constitute the same Agreement. The counterparts of this Agreement may be executed electronically and delivered by electronic means by either Party to the other Party, and the receiving Party may rely on the receipt of such document so executed and delivered by electronic means as if the original had been received.
16.6 Waiver
A provision of this Agreement or a right created under it, may not be waived or varied except in writing, signed by the Party or Parties to be bound.
16.7 Costs
Each Party musty bear its own costs arising out of the negotiation, preparation and execution of this Agreement.
16.8 Severability
If any part or provision of this Agreement is judged invalid or unenforceable in a jurisdiction, it is severed for that jurisdiction, and the remainder of this Agreement will continue to operate in full force.
16.9 Assignment and novation
The Customer may not assign or transfer its rights and obligations under this Agreement without the prior written consent of LX. LX may assign, transfer or novate its rights and obligations under this Agreement without the prior written consent of the Customer.
16.10 Remedies
The rights of a Party under this Agreement are cumulative and not exclusive of any rights provided by Law.
16.11 Amendments
LX may vary the terms and conditions of this Agreement by giving at least 30 days' prior written notice to the Customer. The Customer acknowledges and agrees that notice may be given as a publication or announcement on the Platform.
16.12 Survival
Clauses 1, 4.1, 6, 8, 9, 10, 11, 13, 14, 15, and 16 survive termination of this Agreement.
16.13 Entire Agreement
This Agreement constitutes the entire agreement between the Parties about its subject-matter and supersedes any previous understandings or agreements on that subject-matter, provided that any agreements relating to LX's IncytProtect offering or LX's hardware (if applicable) remain in full force and effect.