PLEASE READ THE TERMS AND CONDITIONS OF THIS SUBSCRIPTION AGREEMENT CAREFULLY. BY APPLYING FOR THE SERVICES YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AS FROM THE DATE YOU APPLY FOR THE SERVICES. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, YOU SHOULD NOT PROCEED WITH YOUR SUBSCRIPTION.
1. General Terms
1.1 These Terms and Conditions govern the provision and use of the Software and services offered by MYP Corporation Pty Limited ACN 131 264 465 (MYP Corporation) to the Customer as specified in the Service Agreement (collectively the Services).
1.2 In the event of any inconsistency between the terms of these Terms and Conditions and the Service Agreement, the terms of the Service Agreement will prevail to the extent of the inconsistency.
1.3 These Terms and Conditions apply in addition to and do not derogate from any other terms and conditions on the Website that expressly apply to the use of the Website, or any other product or services accessed or supplied from, via or by MYP Corporation or the Website.
1.4 In the event of any inconsistency between these Terms and Conditions and any other terms and conditions on the Website which may apply, these Terms and Conditions will prevail to the extent of the inconsistency.
2. Definitions and Interpretation
2.1 Definitions
In these Terms and Conditions, unless the context indicates otherwise:
(a) Account means the Subscription account for the Customer’s use, and associated account information, log-in information, user ID, passwords and identity.
(b) Agreement has the meaning given to that term in clause 3.1 of these Terms and Conditions.
(c) Alleged Intellectual Property Claim has the meaning given to that term in clause 13.3.1 of these Terms and Conditions.
(d) Australian Consumer Law means the Australian Consumer Law contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth) (Australia).
(e) Attack means attacks on computer systems or programs including both high level computer programs such as viruses, worms, trojans or other malicious computer programs or lower level denial of service attacks.
(f) Business Day means a day that is not a Saturday, Sunday or a public holiday in Australia.
(g) Business Hours means the hours from 9.00am to 5.00pm on a Business Day.
(h) Business System means any business or organisational process, activity, method, task, program, functionality, information set, technique, concept, or other proprietary solution that accesses, uses, incorporates, integrates with, or is developed using MYP Corporation’s proprietary eSystem framework, or any related software, program, module or component, and Business Systems has the corresponding meaning.
(i) Business System Owner has the meaning given to that term in clause 13.2.2.
(j) Confidential Information means all information and matters (whether oral or written or electronically stored) which is not publicly available relating to any one or more of MYP Corporation and the affairs and businesses of MYP Corporation including without limitation:
(i) the Subscription and Services and any associated software;
(ii) the Software;
(iii) financial information;
(iv) purchaser information, including matters and affairs and any compilation of past, existing or prospective purchasers, or related information about actual or prospective purchasers;
(v) information about or relating to MYP Corporation;
(vi) intellectual property of MYP Corporation;
(vii) any trade secrets, ideas, know-how, concepts or information relating to the operation of any business or operation of MYP Corporation, the technology or financial position, organisation or arrangements or any dealings, investments, transactions or affairs of MYP Corporation including, without limitation, marketing methods and supply arrangements of MYP Corporation;
(viii) third party information of a confidential nature, in MYP Corporation’s possession, power or control;
(ix) the terms of, and arrangements contemplated by, the Agreement.
(k) Customer means the customer identified in the Service Agreement.
(l) Data means all electronic data, information, figures and details relating to a Customer’s business activities and or Business Systems or the activities of the Customer’s clients and/or customers, including but not limited to data relating to the following:
– Financial information such as revenues, expenses, assets, liabilities, profits and losses.
– Geographical information such as business premises location, market segment dispersion.
– Customer and client information such as type of business, industry or sector size, location, services and products which they acquire.
– Marketing information, such as marketing methods, referrals, costs.
– Supplier information, such as type of business, industry or sector, size, location, services and products they supply.
– Anything else provided by the Customer to, or input, stored or transmitted by or on behalf of the Customer through the Services or the Software, including data uploaded by the Customer to the Software.
(m) Defaulting Party has the meaning given to that term in clause 16.6.1 of these Terms and Conditions.
(n) Dispute has the meaning given to that term in clause 14.1 of these Terms and Conditions.
(o) Dispute Notice has the meaning given to that term in clause 14.3 of these Terms and Conditions.
(p) Effective Date means the earlier of the following dates:
(i) the date the Customer accepts the Service Agreement; or
(ii) the date the Customer first accesses the Services.
(q) eSystem means MYP Corporation’s proprietary framework that enables the design, development, creation or construction of a Business System or Business Systems.
(r) External Hardware has the meaning given to that term in clause 11.3.
(s) Fees means the total of all amounts payable by the Customer to MYP Corporation under the Service Agreement and includes the Subscription Fee, any Implementation Fee, fees for Professional Services, together with all other amounts incurred and payable by the Customer under the Service Agreement.
(t) Force Majeure Event means, in respect of a party, any event or circumstance beyond that party’s reasonable control which prevents or materially hinders the performance of its obligations under the Agreement, including fire, storm, flood, earthquake, explosion, war, invasion, rebellion, sabotage, epidemic, labour dispute or shortage, failure or delay in transportation, or any act or omission (including any law, regulation, disapproval or failure to approve) of any third person not within the control of that party (including, but not limited to, subcontractors, customers, governments or government agencies).
(u) GST means goods and services tax or similar value added tax levied or imposed in Australia pursuant to the GST Law or otherwise on a supply.
(v) GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth) (Australia).
(w) GST Law has the same meaning as in the GST Act.
(x) Homepage means that webpage on the Website, unique to the Customer and hosted by MYP Corporation, designed for access by the Customer only, via the Account, and through which the Customer may access the Services.
(y) Implementation Fee means any one-off or non-recurring fees specified in the Service Agreement, including any implementation, onboarding or setup fees.
(z) Improvements means those upgrades, updates, amendments or modifications to the Services, Software, Website, or the Intellectual Property, whether developed by MYP Corporation or the Customer.
(aa) Initial Term is the minimum subscription period specified in the Services Agreement.
(bb) Insolvent means:
(i) in the case of a natural person, that person becoming an “insolvent under administration” as that term is defined in the Corporations Act 2001 (Cth);
(ii) in the case of a corporation, that corporation becoming:
a. an “externally-administered body corporate” as that term is defined in the Corporations Act 2001 (Cth);
b. unable to pay its debts as and when they fall due;
c. insolvent or deemed to be insolvent under the Corporations Act 2001 (Cth); or
d. subject to a scheme of arrangement or official management pursuant to the Corporations Act 2001 (Cth); or
(iii) in any other case, any event analogous to any of the foregoing.
(cc) Intellectual Property means any industrial or intellectual property rights, whether registrable or not, including all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trade marks, brand names, business names, domain names and other forms of intellectual property in any part of the world, and including applications for the registration of any such rights and any improvements, enhancements or modifications to such registrations, including provided under the Copyright Act 1968 (Cth) (Australia), Designs Act 2003 (Cth) (Australia), Patents Act 1990 (Cth) (Australia), Trade Marks Act 1995 (Cth) (Australia) or any other Australian legislation, present or enacted in the future, pertaining to rights of intellectual property, and all other proprietary rights and all other intellectual property defined in Article 2 of the Convention establishing the World Intellectual Property Organisation (July 1967).
(dd) Licences has the meaning given to it in the Service Agreement.
(ee) Malicious Code means any harmful program, code or device that, when operating as intended, is designed to cause:
(i) corruption, unauthorised access to, or loss of data stored or processed by the Services; or
(ii) the disruption, disabling or cessation of processing of the Services or Software or any related hardware or software.
(ff) Material means the material and information provided pursuant to this Agreement or to which the Customer otherwise gains access, including all information, text, graphics, diagrams, artworks, flowcharts, correspondence, emails, software, advertisements, marketing or operational information, names, and logos and other information with respect to the Services, in any form.
(gg) Minimum Licence means the minimum number of Licences set out in the Service Agreement.
(hh) MYP Corporation has the meaning given to that term in clause 1.1 of these Terms and Conditions.
(ii) Non-Defaulting Party has the meaning given to that term in clause 16.6.1 of these Terms and Conditions.
(jj) Notice Period has the meaning given to that term in clause 18.2 of these Terms and Conditions.
(kk) Objectionable Material means any material referred to in clauses 8.3.4, 8.3.9, 8.3.17, 8.3.18, or 8.3.19 of these Terms and Conditions.
(ll) Outages means those occasions when MYP Corporation or other third parties perform remedial work in the form of maintenance, upgrades or repairs to the Services, Software or Website, such that all or part of the Services, Software or Website is not available for Customer use or access.
(mm) Partner means any person, corporation or commercial entity that has entered into a certified Partner agreement with MYP Corporation.
(nn) Payment Method means that method by which MYP Corporation will accept payment of the Subscription Fee from the Customer.
(oo) Payment Terms means the terms of payment of the Subscription Fee by a Customer to MYP Corporation, as specified in the Service Agreement and as varied from time to time in accordance with the terms of the Agreement.
(pp) Personal Information has the same meaning given to the term by the Privacy Act.
(qq) Platform means the MYP Corporation platform through which the Software and Services are accessible.
(rr) Price Adjustment Notice Period has the meaning given to that term in clause 5.6 of these Terms and Conditions.
(ss) Privacy Act means the Privacy Act 1988 (Cth) (Australia).
(tt) Privacy Policy means the MYP Corporation privacy policy available at: https://mypcorp.com.au/privacy-policy/.
(uu) Privacy Laws means, to the extent applicable:
(i) the Privacy Act; and
(ii) any other legislation, principles, industry codes and policies relating to the collection, use, disclosure, storage or granting of access rights to Personal Information.
(vv) Professional Service means any services provided by MYP Corporation outside the scope of the services to which the Subscription Fee applies, including software engineering developments, training and data migration services, whether provided under an agreed Quotation or as otherwise specified in the Service Agreement.
(ww) Publish means the publication, communication or dissemination of the Results, or the Material by MYP Corporation to the Customer, whether by email or uploading onto the Customer’s Homepage or by other means at the time and from time to time and Publishing, Published and Publication will have a corresponding meaning.
(xx) Quotation means a formal statement setting out the estimated cost of a particular Professional Service.
(yy) Renewal Notice means a written notice given by MYP Corporation to the Customer under clause 16.3 of these Terms and Conditions advising of the automatic renewal of the Subscription unless cancelled.
(zz) Renewal Period means the period set out in the Service Agreement by which the Subscription shall renew.
(aaa) Results means that information, data, analysis, reports and results Published by MYP Corporation to the Customer, which includes, but is not limited to, a comparison of Data of the Customer with that of other customers who have submitted Data for the defined period and historical Data submitted to MYP Corporation and aggregated and stored in MYP Corporation’s databases.
(bbb) Service Agreement means the service agreement between MYP Corporation and the Customer, which incorporates these Terms and Conditions and records the Services to be provided by MYP Corporation to the Customer.
(ccc) Services has the meaning given to that term in clause 1.1 of these Terms and Conditions.
(ddd) Software means the Business System services and business information services made available by MYP Corporation to the Customer under the Agreement, including the eSystem, together with any add-on modules specified in the Service Agreement and subscribed to by the Customer from time to time.
(eee) Subscription means a subscription provided by MYP Corporation to the Customer in accordance with the Agreement, using the Account throughout the Term, and which grants the Customer a non-exclusive and non-transferable licence to access and use the Services through the Account.
(fff) Subscription Fee means the fee for the Subscription set out in the Service Agreement to be paid by the Customer to MYP Corporation throughout the Term and as varied from time to time in accordance with the terms of the Agreement.
(ggg) Sunset has the meaning given to that term in clause 17.1 of these Terms and Conditions.
(hhh) Suspension Notice has the meaning given to that term in clause 16.1.1 of these Terms and Conditions.
(iii) Term means the term of the Agreement as determined in accordance with clause 3.1 of these Terms and Conditions.
(jjj) Terms and Conditions means these Terms and Conditions.
(kkk) Termination Notice Period has the meaning given to that term in clause 16.4.1 of these Terms and Conditions.
(lll) TP Information has the meaning given to that term in clause 8.5.1 of these Terms and Conditions.
(mmm) Unauthorised Use means any use or misuse of the Software by the Customer or any User that is not expressly permitted by this Agreement, including any use that:
(i) occurs other than in accordance with this Agreement;
(ii) degrades, disrupts or interferes with the operation or performance of the Software or the use of the Software by other users, or places, or may place, MYP Corporation in actual or potential breach of any agreement with a third party;
(iii) introduces, transmits or disseminates, whether knowingly or unknowingly, any virus, trojan horse, malware or other malicious, harmful or disabling code, data or program into or through the Software;
(iv) interferes with, disrupts, or attempts to gain unauthorised access to, any computer system, software, network or account associated with the Software;
(v) involves creating a false identity or otherwise misleading any person as to the identity, source or origin of any communication made through the Software;
(vi) uses or accesses any data made available through the Software to develop, publish or provide any product or service that competes with the Software or any product or service offered by MYP Corporation; or
(vii) copies, discloses, publishes or otherwise makes available to any third party any data, dataset or compilation of data obtained through use of the Software except as expressly permitted by this Agreement.
(nnn) User means an individual authorised by the Customer, and approved by MYP Corporation, to access and use the Services or the Software in accordance with the Agreement.
(ooo) Website means the webpages made available by MYP Corporation at https://mypcorp.com.au/ and any other webpages available by MYP Corporation to the Customer and other customers through an Account, including the Homepage.
2.2 Interpretation
In these Terms and Conditions, unless the context indicates otherwise:
(a) a reference to a party to an agreement or document includes that party’s executors, administrators, successors and permitted assigns;
(b) a reference to a clause, schedule or annexure is a reference to a clause of, or schedule or annexure to these Terms and Conditions;
(c) a reference to an agreement or document (including these Terms and Conditions) is to the agreement or document as amended, supplemented, novated or replaced;
(d) a reference to legislation or to a provision of legislation includes a consolidation, amendment, re-enactment or replacement of it and a regulation or other instrument issued under it;
(e) the singular includes the plural and vice versa;
(f) a gender includes all genders;
(g) a reference to a person includes a firm, body corporate, association, trust, partnership, government or governmental body or other legal entity;
(h) where a word or phrase is defined in these Terms and Conditions, other grammatical forms of that word or phrase have a corresponding meaning;
(i) headings in these Terms and Conditions are for convenience only and do not affect its interpretation;
(j) neither these Terms and Conditions nor any part of it is to be construed against a party on the basis that the party or its lawyers were responsible for its drafting or because a party relies on these Terms and Conditions or any part of it to protect itself;
(k) a reference to time is to Brisbane time;
(l) a reference to a body, whether statutory or not, which ceases to exist or whose powers or functions are transferred to another body is a reference to the body that replaces it or that substantially succeeds that body;
(m) any agreement, representation, warranty or indemnity by two or more parties (including where two or more persons are included in the same defined term) binds them jointly and severally;
(n) any right, entitlement, benefit, agreement, representation, warranty or indemnity in favour of two or more parties (including where two or more persons are included in the same defined term) is for the benefit of them jointly and severally;
(o) a reference to dollars or $ is to an amount in Australian currency unless denominated otherwise;
(p) a reference after the words “include” or “for example” or similar expressions does not limit what else is included; and
(q) a party which is a trustee is bound both personally and in its capacity as a trustee.
3. Term
3.1 On and from the Effective Date, these Terms and Conditions constitute a legally binding agreement, together with the Service Agreement, between MYP Corporation and the Customer (Agreement). Subject to clause 3.2, the Agreement will continue until terminated in accordance with these Terms and Conditions.
3.2 The minimum subscription term for the Services is the Initial Term. At the expiry of the Initial Term, the Agreement will continue until terminated in accordance with these Terms and Conditions.
4. Services
Provision of Services
4.1 In consideration of the Customer paying the Fees and otherwise complying with its obligations under the Agreement, MYP Corporation agrees to provide the Services to the Customer during the Term subject to the Agreement.
4.2 MYP Corporation must perform the Services in a professional manner in accordance with industry-accepted professional standards. MYP Corporation will not, however, be liable for any delay in the performance of Services, non-performance of the Services and/or failure of, or defects in, the Services to the extent that such delay, non-performance, failure or defect is caused by or is attributable to the Customer or any third party.
Customer Use of Services
4.3 The Customer acknowledges and agrees that:
4.3.1 The Services are subscribed to or purchased as they exist at the Effective Date and are not contingent on the provision of any future functionality, features or enhancements.
4.3.2 The Customer has not relied on, and shall have no claim in relation to, any statement (whether oral or written, public or otherwise) made by MYP Corporation about future functionality or features, except to the extent such statements form part of the express terms of the Agreement.
4.3.3 MYP Corporation may, from time to time, offer additional or enhanced functionality in connection with the Services, which may be subject to additional Fees, provided that nothing in this clause limits any rights or remedies that the Customer may have under the Australian Consumer Law.
4.3.4 MYP Corporation may make changes or updates to the functionality and/or documentation of the Services from time to time and will promptly advise the Customer in writing of any such changes or updates via the publication of updates on the Website.
4.4 MYP Corporation, or a third party designated by MYP Corporation, may during Business Hours and on reasonable advance notice describing the purpose and scope of the request, in a manner that does not unreasonably interfere with the business operations of the Customer, audit the Customer’s use of or access to the Services to verify compliance by the Customer with the provisions of the Agreement.
4.5 The Customer is responsible for:
4.5.1 All activities that are carried out by the Customer and all Users on the Account.
4.5.2 Maintaining the security and confidentiality of all its Customer usernames and passwords.
4.5.3 Notifying MYP Corporation immediately of any Unauthorised Use of any of the Services, Software, username, password, Account or any other known or suspected breach of security.
5. Fees for the Services
5.1 The Customer must pay MYP Corporation the Subscription Fee during the Term via the Payment Method on the Payment Terms.
5.2 The Customer must pay MYP Corporation any Implementation Fee payable in accordance with the terms specified in the Service Agreement or, if not specified, upon invoice.
5.3 The Customer must pay any other Fees due to MYP Corporation, such as but not limited to fees for Professional Services, provided pursuant to an agreed Quotation, which will be invoiced upon receipt of the signed Quotation and deducted from the Customer’s nominated credit card or direct debit account (whichever has been provided by the Customer) within five (5) to seven (7) days of issue of the invoice. Upon receipt of payment, a commencement date will be confirmed, and the required resources will be allocated accordingly, unless alternate arrangements have been agreed in writing between the Customer and MYP Corporation.
5.4 The Customer must pay all applicable taxes, levies, duties and charges (including any sales, use, value-added, import, export or similar taxes) imposed in connection with the Services, and these must be paid by the Customer at the same time as the Fees set out in the relevant tax invoice.
5.5 Where the Initial Term is more than 12 months, Fees (including for the avoidance of doubt the Subscription Fee) are subject to indexation and shall be varied accordingly. The relevant adjustment shall be:
5.5.1 applied from the first and each subsequent anniversary of the commencement of the Term; and
5.5.2 determined by multiplying the relevant Fee by the percentage increase or change in the Australian Consumer Price Index published for the 12 months ended on the date which is 3 months immediately preceding the relevant adjustment or by 2% (whichever amount is higher).
5.6 MYP Corporation may, by giving the Customer at least fourteen (14) days’ written notice (Price Adjustment Notice Period), adjust the Fees (including for the avoidance of doubt the Subscription Fee) in any of the following circumstances:
5.6.1 where there is an increase in the costs incurred by MYP Corporation in providing the Services, to the extent those costs form part of the relevant Fee;
5.6.2 where the Initial Term is less than 12 months, as part of an annual adjustment of the Monthly Service Fee, with effect from 1 July in any year;
5.6.3 where any industry resolution, change in law or regulation results in an increase in the cost to MYP Corporation of providing the Services; or
5.6.4 at the start of each Renewal Period.
5.7 If the Customer does not agree to the adjusted Fee, the Customer may terminate the Agreement without penalty by providing written notice to MYP Corporation before the end of the Price Adjustment Notice Period. The Customer’s continued use of the Services after the Price Adjustment Notice Period will be deemed to be acceptance of the amended Fee.
5.8 The Customer acknowledges and agrees that the Subscription Fee is based on (and calculated in accordance with) the Minimum Licence. If the Customer’s usage exceeds the Minimum Licence at any time during the Term, the Customer shall pay an amount proportionate to the increase in usage, calculated from the point in time at which the Minimum Licence was exceeded.
5.9 The Customer acknowledges and agrees that if its usage does not meet the Minimum Licence there will be no refund or downwards adjustment to the Subscription Fee.
5.10 The Customer is responsible for notifying MYP Corporation of changes to its billing contacts.
5.11 Any Fees not paid by the due date will be subject to a late payment charge equal to 1.5% per month. All costs incurred by MYP Corporation due to late payment of Fees and debt collection must be paid by the Customer to MYP Corporation.
5.12 Except to the extent required by the Australian Consumer Law and subject to the terms of the Agreement, Fees are non-refundable. Nothing in these Terms and Conditions purports to exclude, restrict or modify any non-excludable rights under the Australian Consumer Law.
5.13 Subject to clause 5.14, all payments required to be made by the Customer under the Agreement must be made free of any set-off, or counterclaim and without deduction or withholding, unless agreed to by MYP Corporation in writing or as required by law.
5.14 In the event of the Customer disputing an invoice for Fees, the Customer must make payment in respect of any undisputed amount by the specified due date and raise a dispute with MYP Corporation as soon as practicable in accordance with clause 14.
6. Training
6.1 Where the Customer agrees to MYP Corporation providing training Services, the following will apply:
6.1.1 Where training forms part of a rollout or implementation program, MYP Corporation will issue invoices on the agreed dates and over the agreed period. Each invoice is payable within seven (7) days of the invoice date.
6.1.2 Where MYP Corporation provides a tailored training session:
6.1.2.1 MYP Corporation will issue an invoice for fifty percent (50%) of the agreed Fee for the training, payable within seven (7) days of issue; and
6.1.2.2 MYP Corporation will issue an invoice for the remaining fifty percent (50%) of the Fee for the training on completion of the training session, payable within seven (7) days.
6.1.3 Where multiple tailored training sessions are scheduled, the initial fifty percent (50%) payment will be invoiced and payable on completion of the first training session.
6.1.4 The Customer must pay all reasonable costs incurred by MYP Corporation to conduct training at the Customer’s nominated location, including travel, accommodation and administrative costs.
6.1.5 If the Customer postpones a confirmed training session less than forty-eight (48) hours before the scheduled start time, it must pay an additional Fee equal to twenty-five per cent (25%) of the applicable Fee for training to compensate MYP Corporation for rescheduling and lost availability. Where the Customer has purchased a rollout package, an additional postponement Fee of $150 per hour of postponed training will apply.
6.1.6 If the Customer cancels a confirmed training session less than seven (7) days before the scheduled start date, MYP Corporation may retain any Fees already paid and invoiced (including any initial fifty per cent (50%) payment) in respect of the training session as a genuine pre-estimate of administration costs and loss of opportunity. Where the Customer has purchased a rollout package, an additional cancellation Fee of $75 per hour of cancelled training will apply.
6.1.7 If the Customer requests any change to a confirmed training date, the Customer must pay any additional reasonable costs incurred by MYP Corporation as a result of that change, including travel, accommodation and administrative costs.
6.1.8 If changes to the Customer’s personnel during a rollout or implementation project require additional training or setup sessions, MYP Corporation may invoice those additional sessions at its then-current standard hourly rates.
7. Force Majeure
7.1 Neither party is liable to the other party in respect of the results of any delay or failure to perform its obligations pursuant to the Agreement if the delay or failure is caused by a Force Majeure Event.
7.2 The performance of the obligations of a party will be suspended for the period of a Force Majeure Event.
7.3 If a delay or failure of MYP Corporation to perform the obligations of MYP Corporation under the Agreement due to a Force Majeure Event exceeds forty-five (45) Business Days, the Customer may immediately terminate the Agreement on providing notice in writing to MYP Corporation.
7.4 If the Agreement is terminated pursuant to this clause 7, MYP Corporation must refund Fees previously paid by the Customer pursuant to the Agreement for Services not yet provided by MYP Corporation to the Customer.
8. Access and Reasonable Use
8.1 Subject to the terms of the Agreement, MYP Corporation grants the Customer a non-exclusive and non-transferable licence during the Term to access and use the Services for the purpose of:
8.1.1 Providing business analysis, reporting, strategy, data and information. Except as expressly set out in the Agreement, and subject to any rights that cannot be lawfully excluded, MYP Corporation provides no warranty as to the reliability, accuracy, completeness or timeliness of the Services, the Software the Results or the Material.
8.2 During the Term, the Customer is solely responsible for selecting, suppling, configuring and maintaining, at its own expense, all External Hardware.
8.3 The Customer must not (and must not allow any User or third party to):
8.3.1 Sublicense, rent, lease, assign or permit a third party to access the Software or the Services.
8.3.2 Use the Material for any other purpose other than for the Services specified.
8.3.3 Use the Services or Software in an irresponsible manner or in such a way that does not consider the effects its use may have on other users.
8.3.4 Use the Services or Software for any unlawful, illegal, malicious or improper purpose or to conduct or promote anything that is illegal.
8.3.5 Use the Services or Software in a manner which interferes with the availability of the services for other customers or users or otherwise interferes with the proper operation of the services or any other network, computer system or the use of any of them.
8.3.6 Resell any component of or information provided via the Services or the Software, including the Results or Materials unless the Customer has the express written consent of MYP Corporation.
8.3.7 Disclose or misuse Confidential Information or Personal Information.
8.3.8 Use the Services, Software or Platform to enable a minor to access material inappropriate for a minor.
8.3.9 Use the Services, Software or Platform to harass, threaten or menace any person or cause damage or injury to any person or property.
8.3.10 Breach any laws, infringe any third party rights (including without limitation, Intellectual Property Rights) or breach or infringe any standards, content requirements or codes promulgated by any relevant authority.
8.3.11 Impersonate another person or use another’s name, user name, password or account.
8.3.12 Expose MYP Corporation to the risk of any legal or administrative action including prosecution under any law.
8.3.13 Unless where expressly permitted to do so in accordance with the terms of the Agreement, modify, copy, reproduce, publish, distribute, re-transmit, upload or repost, or attempt to modify, copy, reproduce, publish, distribute, re-transmit, upload or repost, create derivative works based upon, sell, lease, rent, licence, assign, transfer, dispose or part with possession of the Material without the prior written approval of MYP Corporation (which will not be unreasonably withheld).
8.3.14 Use, frame or utilize framing techniques to enclose Publications of the Results, including images or the content of any text or the layout or design of any page or form contained on a page on the Website, except for the Services specified.
8.3.15 Reverse engineer or attempt to derive the source code of the Software.
8.3.16 Use the Services or Software to build a competing product.
8.3.17 Send unsolicited commercial messages in contravention of applicable law.
8.3.18 Send or store material that is infringing, obscene, threatening or otherwise unlawful, including material that is harmful to children or infringes third-party privacy rights.
8.3.19 Send or store any Malicious Code.
8.3.20 Interfere with or disrupt the integrity, security or performance of the Software or any data contained in the Software.
8.3.21 Attempt to gain unauthorised access to or use of and take all steps necessary to prevent others from gaining unauthorised access to or use of, the Services, Software or related software, systems or networks and shall use reasonable endeavours to assist MYP Corporation at its request in the identification and prevention of unauthorised use or access.
8.4 The Customer must ensure that Users do not submit any Objectionable Material.
8.5 The Customer acknowledges in respect of third-party content accessed via the Website that:
8.5.1 Many of the products and services advertised and much of the information provided on the Website and in links on the Website are the products, services and information of third parties (TP Information).
8.5.2 MYP Corporation does not provide or endorse TP Information, or any third party, and has not checked the accuracy or completeness, suitability or quality of the TP Information.
8.5.3 The Customer is responsible for making its own enquiries directly with the relevant third party before relying on TP Information or entering a transaction in relation to any TP Information.
8.6 The Customer warrants that:
8.6.1 It has relied on its own judgment and experience in entering into the Agreement.
8.6.2 In entering into the Agreement, it has not relied on any representation made by MYP Corporation other than as expressly stated in the Agreement, or on any descriptions, illustrations or specifications contained on the Website or the Material, or in any advertising material provided by MYP Corporation.
8.6.3 All information it has provided to MYP Corporation is, to the best of its knowledge, true in all respects and is not misleading.
8.6.4 The Customer and its Users are not minors.
8.6.5 It has the authority to, and has taken all action necessary to, enter into and perform the Agreement, including approval from any and all clients, customers, businesses, and persons whose data is provided to or entered into MYP Corporation’s Software and Services.
8.6.6 The Agreement is valid and binding and the Customer is not aware of any circumstances that would make the Agreement unenforceable.
8.7 The Customer must, at its own expense, maintain adequate security measures to safeguard the Services and Software from access or use by unauthorised persons, including maintaining security of the Account and taking all other reasonable measures to limit and protect access to the Services and Software from unauthorised persons and Unauthorised Use.
8.8 The Customer must ensure it has sufficient protection in place, at its own expense, to protect the Services and Software from Attack and to prevent circulation of Attacks through the Services and Software, including, but not limited to, such measures as firewalls, policies regarding email attachments, and up to date virus scanning software.
8.9 The Customer must at its own expense comply with all applicable laws relating to data protection, export, spam and all Privacy Laws, restrictions and regulations, and must refrain from directly or indirectly using the Services or the Software in violation of any such restrictions, laws or regulations.
8.10 The Customer must ensure at its own expense that all messages sent out via Services or the Software comply with all requirements of relevant spam legislation (including the Spam Act 2003 (Cth)) including where required that any messages:
8.10.1 Are sent only with express consent or inferred consent.
8.10.2 Always contain the correct legal name of the sender organisation or individual, and a business number (if applicable) and how they can be contacted.
8.10.3 Always contain a functional ‘Unsubscribe’ facility.
8.11 MYP Corporation may adopt rules governing permitted and appropriate use of the Software and Services and MYP Corporation may update those rules from time to time by publishing them on the Website. The Customer will be bound by any such rules.
8.12 MYP Corporation may remove any Data that constitutes Objectionable Material or that breaches any MYP Corporation rules governing permitted and appropriate use of the Software and Services but is not obligated to do so.
8.13 MYP Corporation may suspend or terminate, with immediate effect, any Customer Account for activity that:
8.13.1 Disrupts or causes harm to MYP Corporation’s computers, systems or infrastructure or to third parties.
8.13.2 Breaches applicable law, including laws relating to unsolicited commercial messages.
9. Subcontracting
9.1 MYP Corporation may assign or subcontract the performance of any part of the Services, provided that MYP Corporation remains responsible for the acts and omissions of its assignees and subcontractors.
10. Confidentiality
10.1 Subject to clause 10.2, each party must keep the other party’s Confidential Information confidential and must not deal with it in any way that might prejudice its confidentiality, except as required by law.
10.2 Neither party may disclose the Confidential Information to third parties (aside from its professional advisors or where required by law) without prior written consent of the other party.
10.3 The obligations in this clause 10 survive termination of the Agreement.
11. Support
11.1 Notifications of maintenance to the Software and Services, updates or outages will be provided where possible.
11.2 The Customer acknowledges that Outages may occur in relation to the Services or the Software, without notice to the Customer and that such Outages do not entitle the Customer to any reduction in or reimbursement of any Subscription Fee or any other Fees due to MYP Corporation, except that the Customer may claim the reimbursement of a proportion of the Subscription Fee it has paid for a period to the extent that the period includes any Outage which:
11.2.1 Causes the total Outages within a period of one (1) month to exceed 48 hours in duration; and
11.2.2 Is caused by MYP Corporation’s negligence, material breach of this Agreement or willful misconduct.
11.3 The Customer acknowledges that MYP Corporation’s performance of the Services is contingent upon the suitability of the Customer’s computers, hardware, software, modems, connection to internet, telephone lines, telecommunications services and all other items, goods and services which are not provided by MYP Corporation but which are required for the Customer to receive or use the Services or the Software (External Hardware). Any unsuitability, defect in, failure to maintain or other such issues in the External Hardware which causes unsatisfactory performance of the Services or the Software or any part of the Services or the Software will not:
11.3.1 Exempt the Customer from paying the Fees.
11.3.2 Entitle the Customer to any discount or reduction in the Fees.
11.3.3 Entitle the Customer to make any claim against MYP Corporation for any damages, losses, costs or expenses, and MYP Corporation will not be liable for any loss in contract, tort, under any indemnity or otherwise.
12. Privacy and IT Security Measures
12.1 The Privacy Policy explains how personal information is collected and managed in accordance with the Privacy Laws.
12.2 Subject to clause 12.3, MYP Corporation will:
12.2.1 Only collect, use, store, or disclose Data and Personal Information provided by the Customer as necessary to provide the Services or as required by law; and
12.2.2 Handle all Data and Personal Information provided by the Customer in accordance with its Privacy Policy.
12.2.3 Without any notice or liability whatsoever to the Customer, inhibit access to the Services or the Software if any government authority so requires or requests.
12.2.4 From time to time on reasonable notice to the Customer, schedule downtime for maintenance, upgrading, testing or repairing of any component of the Services or Website or Software without liability to the Customer or any third party.
12.2.5 In its sole discretion and where reasonably necessary to protect its business interests, modify, remove, reconfigure, discontinue, replace, substitute, upgrade or enhance any function, component of, or feature of, or information provided through the Services, Software or on the Website, including the content, hours of availability, equipment required for access or for this Agreement. MYP Corporation will promptly advise the Customer in writing of any such changes or updates via the publication of updates on the Website.
12.3 The Customer must:
12.3.1 Comply with all Privacy Laws in relation to Personal Information, whether the Customer is bound by any one or more of the Privacy Laws.
12.3.2 Not do anything or omit anything which will cause MYP Corporation to breach any Privacy Laws.
12.3.3 Take all reasonable steps to ensure that the Personal Information is protected against any misuse, loss, unauthorised access, modification or disclosure.
12.3.4 Promptly notify MYP Corporation of any inaccuracies or required updates to the Data.
12.3.5 Adopt appropriate measures to ensure the security, secrecy and confidentiality of the Account, including log-in information and passwords, and all Data transmitted by the Customer through use of the Services or the Software, and not disclose to any other person or entity the Account, whether in use or not. The Customer will be responsible for any use whatsoever of the Account, including log-in information and passwords, whether such use is authorised or not.
12.4 The Customer:
12.4.1 May submit Data to the Platform at any time throughout the Term.
12.4.2 Must ensure that all Data submitted is, to the best of its knowledge, accurate, complete, reliable and not misleading.
12.4.3 Acknowledges and agrees that if Data is submitted more than once in any calendar month the most recent submission will automatically override any previous submission of Data in that same calendar month (if benchmark data).
12.4.4 Must use its best endeavours to ensure that submitted Data which includes financial details is current for the period in which the Data is being submitted.
12.4.5 Must submit Data in the format required by the Website, and as directed by MYP Corporation from time to time.
12.4.6 Acknowledges and agrees that if it fails to submit Data as required, MYP Corporation may limit the Customer’s access to the Results in such manner decided by MYP Corporation at its sole discretion.
12.4.7 Acknowledges that the accuracy, completeness and reliability of the Results is dependent on the Data submitted. As a result, MYP Corporation gives no warranty as to the accuracy, completeness or reliability of the Data or the Results.
12.4.8 Acknowledges and agrees that the suitability of a Business System for the purpose in which it is used by the Customer is the Customer’s responsibility. MYP Corporation gives no warranty as to the accuracy, completeness or suitability of the Business System or Data, Materials or Results from the Business System.
13. Intellectual Property
13.1 MYP Corporation Intellectual Property
13.1.1 The Customer acknowledges that nothing in the Agreement gives it any right, title, or interest in the Intellectual Property in the Services, Software or Platform or MYP Corporation owned Intellectual Property in the Data or Material, other than as specifically set out herein.
13.1.2 MYP Corporation owns all Intellectual Property in the Services, the Platform and the Software, and grants the Customer a non-exclusive, non-transferable licence during the Term to use and access the Services, the Platform and the Software for the purposes of using and accessing the Services.
13.1.3 Data submitted will be aggregated and stored in databases owned and operated by MYP Corporation. MYP Corporation owns all Intellectual Property in the Data as aggregated and stored in its databases.
13.1.4 The Customer will only use MYP Corporation’s Intellectual Property (such as logos, brands or such other Intellectual Property) with the express written consent of MYP Corporation and in the format supplied and approved by MYP Corporation.
13.1.5 The Customer acknowledges and agrees that any Improvements developed by or on behalf of the Customer vest in MYP Corporation. The Customer agrees that it will use its best endeavours and undertake all reasonably necessary actions to affect MYP Corporation’s ownership of the Improvements.
13.2 Customer Intellectual Property
13.2.1 The Customer grants MYP Corporation a non-exclusive, worldwide, royalty-free licence to host, use, reproduce, modify (solely for formatting or integration), and display the Customer owned Intellectual Property necessary for the purpose of providing the Services.
13.2.2 MYP Corporation acknowledges that where a Customer and/or Partner (Business System Owner) contracts MYP Corporation to design, develop, create or construct a Business System, a licence to the contracted Business System, excluding MYP Corporation’s proprietary framework and the Data that is associated with or entered into the contracted Business System, is granted to the Business System Owner until:
13.2.2.1 Termination of the Customer’s Subscription; or
13.2.2.2 Lapse of the Customer’s Subscription.
13.2.3 The Customer acknowledges that where it has agreed that its Business System will be offered for sale or subscription in MYP Corporation’s marketplace to MYP Corporation’s current or future customers, the Business System cannot be withdrawn from MYP Corporation’s marketplace for sale or subscription at any time without the express written agreement of MYP Corporation, not to be unreasonably withheld.
13.2.4 The Customer warrants and represents that:
13.2.5 It has the right to use and upload the Material and Data to the Software as contemplated by the Agreement.
13.2.6 It has obtained all necessary rights, licences, permissions and consents (including from any third parties and, where applicable, from individuals to whom the Data and Material relates) to grant the licence in clause 13.2.1.
13.2.7 The Data and Material, including any Personal Information, has been collected, used, disclosed and provided to MYP Corporation in compliance with all applicable laws (including the Privacy Laws).
13.2.8 The use of the Material and Data by the party in accordance with the Agreement will not infringe the Intellectual Property rights or other rights of any third party.
13.3 Intellectual Property Disputes
13.3.1 The Customer must immediately notify MYP Corporation in writing of any alleged claim, including third party claim, of direct or indirect infringement of Intellectual Property in the Services, the Platform or the Software (Alleged Intellectual Property Claim).
13.3.2 MYP Corporation warrants that to the best of its knowledge the Services, the Platform and the Software do not infringe the Intellectual Property of any third party and that MYP Corporation is entitled to grant the Subscription to the Customer.
13.3.3 The Customer will use best endeavours to support and cooperate with MYP Corporation in defence of any Alleged Intellectual Property Claim.
13.3.4 MYP Corporation agrees to defend any action brought by any third party against the Customer based on a claim that the Intellectual Property in the Services infringes the rights of any third party provided that:
13.3.4.1 The Customer provides notification in accordance with clause 13.3.1 along with all reasonable information and assistance.
13.3.4.2 The Customer acknowledges and agrees that MYP Corporation has sole authority to defend or settle the claim, as it, in its sole discretion considers appropriate.
13.3.4.3 The Customer acknowledges and agrees that MYP Corporation has sole discretion to either obtain for the Customer the right to continue using the Services and Subscription or to replace and modify the infringing part so that it becomes non-infringing.
13.3.4.4 The alleged infringement does not relate to changes, additions or alterations to the Services, Subscription or Software made by parties other than MYP Corporation or use of the Services, Subscription or Software in combination with products or software not provided or approved by MYP Corporation.
14. Dispute Resolution
14.1 This clause 14 applies to each dispute which arises between the parties in connection with the Agreement or this clause 14 (Dispute).
14.2 Subject to clause 14.8, a party must not commence or maintain any action or proceeding in any court, tribunal or otherwise regarding a Dispute without first giving a Dispute Notice and complying with the provisions of this clause 14.
14.3 If a party considers that a Dispute has arisen, it may notify the other party in writing, setting out in reasonable detail the facts of the matter in dispute (Dispute Notice).
14.4 The parties must promptly hold good faith discussions after issue of a Dispute Notice to attempt to resolve the Dispute and must (without prejudice to the privilege against the production of any such information to a court) furnish to the other party all information with respect to the Dispute which is appropriate in connection with its resolution.
14.5 If the Dispute has not been resolved within twenty-eight (28) days after the giving of a Dispute Notice, either party may by notice to the other party refer the Dispute to mediation administered by the Australian Disputes Centre.
14.6 The costs of mediation must be shared equally between the parties.
14.7 If the Dispute has not been resolved within fourteen (14) days after commencement of mediation, either party may pursue its rights and remedies under the Agreement as it sees fit.
14.8 Notwithstanding anything in this clause 14, a party at any time may commence court proceedings in relation to any dispute or claim arising under or in connection with the Agreement where that party seeks urgent interlocutory relief.
14.9 This clause 14 shall not apply if the Agreement has been terminated.
15. Disclaimer, liability and indemnity
15.1 To the maximum extent permitted by law, the aggregate liability of MYP Corporation to the Customer, whether arising in contract, tort or otherwise, in respect of all claims, damages and costs arising under or in relation to the Agreement shall be limited to an amount equivalent to 12 months’ Fees paid or payable by the Customer to MYP Corporation under the Agreement.
15.2 To the maximum extent permitted by law, and subject to clause 15.6, the Services and the Software are provided “as is” and “as available”. MYP Corporation disclaims all representations and warranties, express, implied or statutory, not expressly set out in the Agreement, including any implied warranties of merchantability, fitness for a particular purpose and non-infringement, and makes no representation, warranty, or guarantee regarding the reliability, timeliness, quality, suitability or availability of the Services or the Software, or that the Services and the Software will be uninterrupted or error-free.
15.3 The Customer indemnifies MYP Corporation from and against third-party claims to the extent arising from:
15.3.1 The Customer’s breach of this Agreement.
15.3.2 The Customer’s misuse of the Services or the Software; or
15.3.3 The Customer’s breach of applicable law, except to the extent the claim or loss is caused by MYP Corporation’s negligence, breach, or willful misconduct.
15.4 Neither party shall be liable to the other for any indirect, consequential, incidental, special or punitive loss or damage arising under or in relation to the Agreement whether such loss or damage was within the contemplation of either of the parties at the time of entering into the Agreement.
15.5 Subject to clause 15.6 and to the maximum extent permitted by law, MYP Corporation is not liable for any failure, delay, unavailability or inaccuracy in the Services, Software, Data, Results, Website content or Materials to the extent caused by:
15.5.1 Data, Materials or instructions provided by the Customer or a third party on the Customer’s behalf;
15.5.2 any External Hardware;
15.5.3 any Attack, Malicious Code or Unauthorised Use;
15.5.4 the Customer’s use of the Services or the Software in breach of the Agreement or contrary to MYP Corporation’s reasonable instructions;
not caused by MYP Corporation’s breach of the Agreement, negligence or wilful misconduct.
15.6 Notwithstanding any provision of these Terms and Conditions, nothing in these Terms and Conditions restricts, modifies or limits the Customer’s rights under any law which cannot be excluded or modified, including the Customer’s rights under the Australian Consumer Law.
16. Suspension and Termination
16.1 Suspension of Access
16.1.1 MYP Corporation may immediately suspend the Customer’s access to the Services, or any part of them, by written notice to a Customer (Suspension Notice) where:
16.1.1.1 any Fees payable under this Agreement remain unpaid for thirty (30) days after the relevant due date.
16.1.1.2 MYP Corporation becomes aware of any Unauthorised Use of the Services, or any part of them, by the Customer and reasonably considers suspension necessary to prevent or mitigate material harm.
16.1.1.3 A representation, warranty or statement made by or on behalf of the Customer is materially untrue or misleading and MYP Corporation reasonably considers suspension necessary to protect the Services, comply with law, or prevent material harm.
16.1.2 During any period of suspension under clause 16.1.1, the Customer remains liable to pay the Fees except to the extent that the suspension arises from an error, omission or system failure attributable to MYP Corporation.
16.1.3 MYP Corporation must restore access to the Services as soon as reasonably practicable after the circumstance giving rise to the suspension has been remedied.
16.2 Effect of Suspension
16.2.1 If, within thirty (30) days following the date of suspension, the Customer remedies the matter specified in the Suspension Notice to MYP Corporation’s reasonable satisfaction, MYP Corporation must promptly reinstate the Customer’s access to the Services.
16.2.2 If the Customer does not remedy the matter specified in the Suspension Notice within thirty (30) days following the date of suspension, MYP Corporation may terminate the Agreement in accordance with clause 16.5.1. Following termination, the Customer’s access to the Services will cease and the Data will no longer be accessible through the Services, subject to any applicable law.
16.3 Termination by Customer
16.3.1 At the end of the Initial Term, the Subscription shall renew automatically for successive Renewal Periods unless the Customer provides notice in writing to MYP Corporation that it does not wish to renew the Subscription. The period of notice the Customer is required to provide is set out below.
16.3.2 Where the Initial Term is more than or equal to 12 months:
16.3.2.1 MYP Corporation must give the Customer a Renewal Notice at least thirty (30) days before the end of the Initial Term or the then current Renewal Period (as applicable), where the relevant Renewal Period is more than thirty (30) days; and
16.3.2.2 the Customer must give MYP Corporation at least fourteen (14) days’ notice in writing before the end of the Initial Term or the then current Renewal Period (as applicable) if it does not wish to renew the Subscription.
16.3.3 Where the Initial Term is less than 12 months:
16.3.3.1 MYP Corporation must give the Customer a Renewal Notice at least fourteen (14) days before the end of the Initial Term; and
16.3.3.2 the Customer must give MYP Corporation at least seven (7) days’ notice in writing before the end of the Initial Term if it does not wish to renew the Subscription.
16.3.4 If the Subscription renews for a Renewal Period of thirty (30) days or less, MYP Corporation is not required to provide a further Renewal Notice for each subsequent Renewal Period. In this case, the Customer may terminate the Subscription at any time by giving thirty (30) days’ notice to MYP Corporation.
16.3.5 Subscription Fees remain payable for services provided during the applicable notice period. Unless otherwise stated in the Service Agreement, MYP Corporation will refund or credit any prepaid Subscription Fees relating to any period after the effective date of termination, except where the Agreement is terminated due to the Customer’s breach.
16.4 Termination by MYP Corporation
16.4.1 MYP Corporation may terminate the Agreement upon thirty (30) days after a Suspension Notice if the Suspension Notice is not complied with.
16.4.2 MYP Corporation may terminate the Agreement immediately by notice in writing to the Customer due to legal or regulatory reasons.
16.5 Termination by either party
16.5.1 A party may terminate the Agreement (Non-Defaulting Party) by notice in writing to the other party (Defaulting Party) if the Defaulting Party:
16.5.1.1 commits a material breach of these Terms and Conditions, where:
16.5.1.1.1 the material breach can be remedied and the Defaulting Party fails to remedy such material breach within thirty (30) days after receipt of a notice from the Non-Defaulting Party specifying the material breach and requiring the Defaulting Party to remedy such material breach; or
16.5.1.1.2 the material breach cannot be remedied; or
16.5.1.2 becomes Insolvent.
16.6 Effect of Termination
16.6.1 Subject to clause 5, upon termination of the Agreement, the Customer must cease using the Services (or the relevant terminated part of them) and pay any outstanding Fees to MYP Corporation in accordance with clause 5.
16.6.2 Except to the extent expressly stated otherwise in the Agreement, the Customer will not be entitled to any further payment by MYP Corporation of any other fees, such as but not limited to introducer fees, which have not accrued as at the effective date of termination.
16.6.3 Upon termination, the Customer must immediately cease to use and remove from any digital or physical format any logo, brand or other Intellectual Property that belongs to MYP Corporation.
16.6.4 For the avoidance of doubt, the expiry of or termination of the Agreement, will not extinguish or affect any rights of either party against the other which:
16.6.4.1 accrued prior to the time of the expiry or termination of the Agreement;
16.6.4.2 otherwise relate to or may arise at any future time from any breach or non-observance of obligations under the Agreement which arose prior to the time of the expiry or termination; or
16.6.4.3 any provisions of the Agreement which by their nature survive expiry or termination.
17. Withdrawal of the Services/Software
17.1 MYP Corporation may withdraw any part of the Services or Software during the Term if:
17.1.1 it is no longer supported, developed or maintained by MYP Corporation or a third-party supplier;
17.1.2 it creates a material security, legal or regulatory risk; or
17.1.3 it is no longer reasonably practical for MYP Corporation to continue providing it.
17.2 MYP Corporation must give the Customer at least six (6) months’ prior written notice of any withdrawal under clause 17.1.
17.3 If the withdrawal materially reduces the Customer’s use of the Services, the Customer may, before the withdrawal takes effect:
17.3.1 terminate the affected part of the Services without penalty; or
17.3.2 if the withdrawn part is a material part of the Services as a whole, terminate the Agreement without penalty.
17.4 MYP Corporation must refund any prepaid Fees for any part of the Services that is terminated under clause 17.3 for the period after termination.
17.5 Nothing in this clause limits the Customer’s rights under the Australian Consumer Law.
18. Amendments to Terms and Conditions
18.1 MYP Corporation may amend these Terms and Conditions from time to time to:
18.1.1 Reflect changes to the Services and Software (including new features, improvements, or retiring features).
18.1.2 Address security, fraud prevention, or technical issues.
18.1.3 Comply with law, regulation, guidance or an order of a court or tribunal.
18.1.4 Otherwise protect MYP Corporation’s legitimate business interests, where the change is reasonably necessary.
18.2 MYP Corporation will provide the Customer with at least 30 days’ written notice in the event of a change to these Terms and Conditions (Notice Period) before it takes effect by emailing the notice to the primary email address on the Customer’s Account. The notice will include either a summary of the changes or a link to a version showing the changes.
18.3 Changes to these Terms and Conditions will not apply retrospectively to reduce the Customer’s rights for Services already paid for. Unless the change to these Terms and Conditions is required by law or is necessary to address an urgent security risk, any change that materially disadvantages the Customer will take effect only:
18.3.1 from the commencement of the Customer’s next billing period that begins after the Notice Period ends; or
18.3.2 if the Customer expressly agrees to the change, from an earlier date agreed in writing.
18.4 If a change materially disadvantages the Customer, the Customer may terminate the Agreement before the end of the Notice Period by providing written notice to MYP Corporation and MYP Corporation will refund any prepaid Fees for the unused portion of the Term (if applicable). MYP Corporation will not charge an early termination fee for doing so.
18.5 Continued use of the Services by the Customer after the Notice Period, where the Customer has not terminated the Agreement in accordance with clause 18.4, will be deemed to be acceptance of the amended Terms and Conditions.
18.6 This clause 18 does not limit:
18.6.1 any rights or remedies that the Customer may have under the Australian Consumer Law; or
18.6.2 any term under these Terms and Conditions that is specifically required by law.
19. GST
19.1 A term used in this clause 19 that is defined in the GST Act has the same meaning when used in this clause.
19.2 Unless the Agreement expressly provides otherwise, all amounts payable under or pursuant to the Agreement are expressed to be exclusive of GST. If GST is payable on a Taxable Supply, the amount payable for that Taxable Supply will be the amount expressed in the Agreement plus GST.
19.3 Without limiting clause 19.2, if an amount payable under or pursuant to the Agreement is calculated by reference to a liability incurred by a party, then the liability must be reduced by the amount of any Input Tax Credit to which that party is entitled in respect of that liability.
19.4 A party will be assumed to be entitled to a full Input Tax Credit unless it demonstrates that its entitlement is otherwise before the date on which payment must be made.
19.5 A party receiving a Taxable Supply (the “Recipient”) is not required to pay an amount on account of GST under clause 19.2 to the party making the Taxable Supply (the “Supplier”) until the Supplier has provided the Recipient with a Tax Invoice in respect of that Taxable Supply.
20. Miscellaneous
20.1 MYP Corporation may assign or transfer all or part of its rights and obligations under the Agreement, including in connection with a corporate restructure, sale of assets or change of control, without the Customer’s consent.
20.2 Any notice delivered by MYP Corporation to the Customer under these Terms and Conditions will be delivered to the address of the Customer set out in the Service Agreement. Any notice delivered by the Customer to MYP Corporation under these Terms and Conditions must be delivered by contacting MYP Corporation at MYP Corporation at Level 1, 99 Melbourne Street, South Brisbane QLD 4101.
20.3 A notice given in accordance with this clause takes effect when taken to be received (or at a later time specified in the notice), and is taken to be received:
20.3.1 if hand delivered, on delivery;
20.3.2 if sent by prepaid post, on the third Business Day after the date of posting (or on the seventh Business Day after the date of posting if posted to or from a place outside Australia);
20.3.3 if sent by email, at the time the email is sent (provided the sender has not received a notification within eight Business Hours after the email is sent that the email was not received by the recipient),
but if the delivery, receipt or transmission is not on a Business Day, or is after Business Hours on a Business Day, the notice is taken to be received at 9.00am on the next Business Day.
20.4 Any failure, delay or indulgence by a party in exercising or enforcing any right under the Agreement does not operate as a waiver of that right, nor does any waiver of a breach constitute a waiver of any subsequent breach.
20.5 These Terms and Conditions are governed by the laws of Queensland. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the Queensland courts and tribunals.
20.6 Clauses 5 (Fees for the Services), 10 (Confidentiality), 12 (Privacy and IT Security Measures), 13 (Intellectual Property) and 15 (Disclaimer, liability and indemnity), together with the obligation of the Customer to pay any outstanding Fees due under the Agreement, survive the termination or expiry of the Agreement.
20.7 The Customer must not assign any right under the Agreement without the prior written consent of MYP Corporation, which may be withheld at its discretion.
20.8 A party may exercise any right, power or remedy at its discretion and separately or concurrently with another right, power or remedy. A single or partial exercise of a right, power or remedy by a party does not prevent a further exercise of that or of any other right, power or remedy. Failure or delay by a party in exercising a right, power or remedy does not prevent its exercise. A right may only be waived in writing, executed by the party giving the waiver.
20.9 Where access by the Customer to the Services is terminated, all disclaimers and limitations of liability set out in these Terms and Conditions will survive.
20.10 Part or all of a clause of the Agreement that is illegal or unenforceable will be severed from the Agreement and will not affect the continued operation of the remaining provisions of the Agreement.
20.11 Any legislation which varies an obligation or right, power or remedy of a party that is bound by these Terms and Conditions is excluded to the full extent permitted by law, however, nothing in the Agreement is intended to exclude, restrict or modify the operation of any law which cannot be excluded, restricted or modified.
20.12 The Agreement constitutes the entire agreement between the parties relating in any way to the subject matter of the Agreement and supersedes any prior agreement (oral or written) from the Effective Date.
