Terms and Conditions

TERMS AND CONDITIONS

We are ActiveChef Pty Ltd, an Australian business with ABN No. 93 694 401 039 (‘we’, ‘our’ or ‘us’) and we provide innovative solutions to generate personalised meal and recipe recommendations based on ingredients available to the user (‘you’, ‘your’), dietary preferences, nutritional goals and selected filters (Services). Our solutions include the Subscription Services, all known as ActiveChef as described on our Website (Software) and available for download through the Apple App Store or Google Play Store.

These terms and conditions (Terms) govern your access to the Software and us providing you any other goods and services as set out in these Terms (Subscription). You can view the most updated version of our Terms at www.activechef.ai (Website). Please read these terms and conditions carefully before agreeing to proceed with your Subscription. 

The Subscription Fees will be automatically deducted from your nominated debit card/credit card on the date you establish an Account, and thereafter each month (Billing Cycle) through your subscription in your App Store/Google Play Store.

You may upgrade or downgrade your Subscription at any point, in accordance with clause 12.

Your Subscription will automatically renew unless cancelled before the end of the current Subscription Period. If you purchased your Subscription through the App Store, you can cancel at any time through your App Store account settings. 

1           READING AND ACCEPTING THESE TERMS

(a)               In these Terms, capitalised words and phrases have the meanings given to them where they are followed by bolded brackets, or as set out in the Definitions table at the end of these Terms. 

(b)               By clicking the “I accept these Terms” button on our App, you agree to be bound by these Terms which form a binding contractual agreement between you the person acquiring a Subscription or the company you represent and are acquiring the Subscription on behalf of (‘you’ or ‘your’) and us.

(c)                We may change these Terms at any time by notifying you, and your continued use of the Software following such an update will represent an agreement by you to be bound by the Terms as amended.

2           ELIGIBILITY

(a)               By accepting these Terms, you represent and warrant that:

(i)                 you have the legal capacity and authority to enter into a binding contract with us; and

(ii)                you are authorised to use the payment you provided when purchasing a Subscription.

(b)               The Software is intended for users aged 16 years and over. If you are under the age of 16 years, you may only access and use the Software with the consent and supervision of your parent or legal guardian, who agrees to be bound by these Terms on your behalf. 

(c)                By using the Software, you represent and warrant that you:

(i)                 are at least 16 years of age; or 

(ii)                are under the age of 16 years and are accessing and using the Software with the consent and supervision of your parent or legal guardian.

(d)               You must not access or use the Software if you have previously been suspended or prohibited from using the Software.

(e)               Where a parent or legal guardian permits a person under 16 years of age to use the Software, the parent or legal guardian is responsible for supervising that person’s use of the Software, including reviewing meal recommendations and ensuring that all recipes and ingredients are appropriate having regard to the User’s age, allergies, dietary requirements and medical conditions. 

3           DURATION OF YOUR SUBSCRIPTION

(a)               Your Subscription and these Terms commence on the date you agree to be bound by these Terms (as set out at the beginning of these Terms) and continue for the Subscription Period and any Renewal Periods, unless terminated earlier in accordance with clause 14 (Subscription Term).

(b)               Your Subscription is billed on a recurring basis for the Subscription Period selected at the time of purchase.

(c)                Unless you cancel your Subscription before the end of the current Subscription Period, your Subscription will automatically renew for successive Periods. If you purchased your Subscription through the applicable App Store, you may cancel your Subscription at any time through your applicable App Store account settings. Your cancellation will take effect at the end of your current Subscription Period, and you will continue to have access to the Software until the expiry of that Subscription Period. You will no longer have access to the Software, your Account or your User Data and we will have no responsibility to store or otherwise retain any User Data (and you release us in respect of any loss or damage which may arise out of us not retaining any User Data beyond that point).

(d)               By purchasing a Subscription through the applicable App Store, you authorise the applicable App Store to automatically charge the applicable Subscription Fees to your nominated payment method at the beginning of each renewed Subscription Period unless and until your Subscription is cancelled through the applicable App Store.

4           THE SOFTWARE

4.1               SCOPE OF YOUR SUBSCRIPTION AND THE SOFTWARE

(a)               We will provide you, to the extent described in your Subscription Tier, the Software and the Documentation (Software).

(b)               Your Subscription includes the benefits and limitations of your Subscription Tier as set out on our sign up form, on our Website, or as otherwise communicated to you when you subscribe for your Subscription (and as amended from time to time by notice to you).

4.2               ACCOUNTS

(a)               (Accounts) To use the Software, you may be required to sign-up, register and receive an account through the Website (an Account).

(b)               (Acceptance) Once you complete the account registration process, we may, in our absolute discretion, choose to accept you as a registered user within the Website and provide you with an Account.

(c)                (Provide Information) As part of the Account registration process and as part of your continued use of the Software, you may be required to provide personal information (including sensitive information) and details, as determined by us from time to time.

(d)               (Warranty) You warrant that any information you give to us in the course of creating an Account will always be accurate, honest, correct and up-to-date.

(e)               (Security) You are responsible for managing your Account. You must immediately notify us of any unauthorised use of your profile, password or email, or any other breach or potential breach of the Software’s security. 

(f)                 (Cancellation) We may, in our absolute discretion, cancel any Account or suspend access for any reason, including for any failure to comply with these Terms. In the event your Subscription is revoked, you will not be entitled to any refund of the Subscription Fees. 

4.3               DISCLAIMER

You acknowledge and agree that:

(a)               The Software uses artificial intelligence to generate personalised meal and recipe recommendations based on ingredients available to you, your dietary preferences, nutritional goals and selected filters. The Software is intended to assist you with meal planning only and should not be relied upon as a source of medical, nutritional or dietetic advice;

(b)               The Software does not provide medical, nutritional, dietetic or other healthcare advice, diagnosis or treatment. You should seek advice from an appropriately qualified healthcare professional before making significant dietary changes or where you have allergies, intolerances, medical conditions or other health concerns;

(c)                AI-generated recommendations and other content produced by the Software are provided for your convenience only and may be incomplete, inaccurate, unsuitable or unavailable from time to time. You are responsible for reviewing and verifying any recommendations before relying on them and for ensuring the accuracy of the information you provide to the Software. We do not review, approve or verify AI-generated recommendations before they are presented to you and cannot guarantee that any recommendation is suitable for your individual circumstances; 

(d)               Except as expressly stated in these Terms, any information provided through the Software or the Services is general in nature and may not be appropriate for your personal circumstances. It does not constitute medical, nutritional, dietetic or other professional advice;

(e)               Although the Software takes into account the dietary preferences, allergies and intolerances you provide, AI-generated recommendations may contain errors, omissions or inaccuracies. We do not guarantee that recommendations will exclude all allergens or ingredients that may be unsuitable for you;

(f)                 You are responsible for ensuring that all food is sourced, stored, handled and prepared safely and in accordance with applicable food safety guidelines. We do not warrant that cooking instructions, preparation methods or storage recommendations generated by the Software are complete or appropriate in every circumstance;

(g)               The Software should not be relied upon for the management of any medical condition or dietary requirement where precise nutritional intake is required; and

(h)               We do not represent or warrant that use of the Software will result in any particular health, fitness, nutritional or weight management outcome. Individual results will vary and depend on numerous factors beyond our control.

4.4               SOFTWARE

(a)               While your Subscription is maintained, we grant to you a non-exclusive, non-transferable licence to use the Software and Documentation. Your licence to use the Software under this clause will be limited to one User.

(b)               We may from time to time, in our absolute discretion, release enhancements to the Software, meaning an upgraded, improved, modified or new versions of the Software (Enhancements). Any Enhancements to the Software will not limit or otherwise affect these Terms. Enhancements may cause downtime or delays from time to time, and credits will not be provided for such downtime. 

(c)                We may change any features of the Software at any time with no notice to you.

4.5               THIRD PARTY SOFTWARE, TERMS AND CONDITIONS

(a)               You acknowledge and agree that third party terms & conditions (Third Party Terms) may apply to your use of the Software, including:

(i)                 Apple (App Store) for subscription hosting;

(ii)                Google Play Store for subscription hosting; 

(iii)               Runware.ai for AI image generation;

(iv)               Hetzner for application hosting and server infrastructure;

(v)                Microsoft for email services through Microsoft 365/Outlook; and

(vi)               Bitbucket for source code repository and development services. 

as updated from time to time.

(a)               You agree to any Third Party Terms applicable to any third party goods and services that are used in providing the Software, and we will not be liable for any loss or damage suffered by you in connection with such Third Party Terms.

(b)               Without limiting clause 4.5(a), we will take reasonable steps to notify you of Third Party Terms.

(c)                You have the right to reject any Third Party Terms. If you reject the Third Party Terms, we cannot provide the Software to you and clause 13 will apply.

4.6               THIRD PARTY SOFTWARE INTEGRATIONS 

(a)               You acknowledge and agree that issues can arise when data is uploaded to software, when data is transferred between different software programs, and when different software programs are integrated together. We cannot guarantee that integration processes between the Software and other software programs will be free from errors, defects or delay. 

(b)               You agree that we will not be liable for the functionality of any third party goods or services, including any third party software, or for the functionality of the Software if you integrate it with third party software, or change or augment the Software, including by making additions or changes to the Software code, and including by incorporating APIs into the Software.

(c)                If you add third party software or software code to the Software, integrate the Software with third party software, or make any other changes to the Software, including the Software code (User Software Changes), then:

(i)                 you acknowledge and agree that User Software Changes can have adverse effects on the Software, including the Software;

(ii)                you will indemnify us in relation to any loss or damage that arises in connection with the User Software Changes;

(iii)               we will not be liable for any failure in the Software, to the extent such failure is caused or contributed to by a User Software Change;

(iv)               we may require you to change or remove User Software Changes, at our discretion, and if we do so, you must act promptly;

(v)                we may suspend your access to the Software until you have changed or removed User Software Change; and/or

(vi)               we may change or remove any User Software Change, in our absolute discretion. We will not be liable for loss of data or any other loss or damage you may suffer in relation to our amendment to, or removal of, any User Software Change.

4.7               SUBCONTRACTING

We may subcontract any aspect of providing the Services and Software, and you hereby consent to such subcontracting.

4.8               SUPPORT SERVICES

We will provide general support where reasonably necessary to resolve technical issues with the Software (Support Services). Unless otherwise agreed in writing:

(a)               we will take reasonable steps to provide Support Services where necessary (you must first endeavour to resolve any issues with the Software internally and we will not assist with issues that are beyond our reasonable control);

(b)               we will use our best endeavours to respond to requests for Support Services and you acknowledge that we may not be available 24/7 or respond within a particular time frame; 

(c)                you are responsible for all internal administration and managing access, including storing back-up passwords; and

(d)               you will not have any claim for delay to your access to the Software due to any failure or delay in Support Services.

5           DATA HOSTING

We will store User Data you upload to the Software using a third party hosting service selected by us (Hosting Services), subject to the following terms:

(a)               (hosting location) You acknowledge and agree that we may use storage servers to host the Software through cloud-based services, and potentially other locations outside Australia.

(b)               (service quality) While we will use our best efforts to select an appropriate hosting provider, we do not guarantee that the Hosting Services will be free from errors or defects or that User Data will be accessible or available at all times.

(c)                (security) We will use our best efforts to ensure that User Data is stored securely. However, we do not accept responsibility or liability for any unauthorised use, destruction, loss, damage or alteration to User Data, including due to hacking, malware, ransomware, viruses, malicious computer code or other forms of interference.

(d)          (backups & disaster recovery) We will store your daily backups for one week, weekly backups for one month, and monthly backups for one year. In the event that User Data is lost due to a system failure (e.g. a database or webserver crash), we will use our best efforts to recover any backups. However, we may not be able to recover all backups, ensure that the data is complete or ensure that recovered backups will be free from errors or defects. We encourage all Account holders to ensure they always backup data entered in the Software in another location on a regular basis.

6           CLIENT OBLIGATIONS

You agree to:

(a)               provide us with all documentation, information and assistance reasonably required by us to perform the Services; and

(b)               provide us with access to any third party or other accounts used by you (including log-in details and passwords), as is reasonably required by us to perform the Services.

6.2               CLIENT MATERIAL

(a)               You warrant that all information, documentation and other Material you provide to us for the purpose of receiving the Software is complete, accurate and up-to-date.

(b)               You release us from all liability in relation to any loss or damage arising out of or in connection with the Software, to the extent such loss or damage is caused or contributed to by information, documentation or any other Material provided by you being incomplete, inaccurate or out-of-date.

6.3               YOUR OBLIGATIONS

(a)               You must comply with these Terms at all times. You acknowledge and agree that we will have no liability in respect of any damage, loss or expense which arises in connection with your breach of these Terms, and you indemnify us in respect of any such damage, loss or expense. 

(b)               You must not, and must not encourage or permit any third party to, without our prior written approval:

(i)                 upload sensitive information or commercial secrets using the Software;

(ii)                upload any inappropriate, offensive, illicit, illegal, pornographic, sexist, homophobic or racist material using the Software;

(iii)               use the Software for any purpose other than for the purpose for which it was designed, including you must not use the Software in a manner that is illegal or fraudulent or facilitates illegal or fraudulent activity (including requesting or accepting a job which includes illegal activities or purposes);

(iv)               upload any material that is owned or copyrighted by a third party; 

(v)                make copies of the Documentation or the Software;

(vi)               adapt, modify or tamper in any way with the Software;

(vii)              remove or alter any copyright, trade mark or other notice on or forming part of the Software or Documentation;

(viii)             act in any way that may harm our reputation or that of associated or interested parties or do anything at all contrary to the interests of us or the Software;

(ix)               use the Software in a way which infringes the Intellectual Property Rights of any third party;

(x)                create derivative works from or translate the Software or Documentation;

(xi)               publish or otherwise communicate the Software or Documentation to the public, including by making it available online or sharing it with third parties;

(xii)              integrate the Software with third party data or Software, or make additions or changes to the Software, (including by incorporating APIs into the Software) other than integrating in accordance with any Documentation or instructions provided by us in writing; 

(xiii)             intimidate, harass, impersonate, stalk, threaten, bully or endanger any other User or distribute unsolicited commercial content, junk mail, spam, bulk content or harassment in connection with the Software;

(xiv)            sell, loan, transfer, sub-licence, hire or otherwise dispose of the Software or Documentation to any third party;

(xv)             decompile or reverse engineer the Software or any part of it, or otherwise attempt to derive its source code;

(xvi)            share your Account or Account information, including log in details or passwords, with any other person and that any use of your Account by any person who is not the account holder is strictly prohibited. You must immediately notify us of any unauthorised use of your Account, password or email, or any other breach or potential breach of the Software’s security; or

(xvii)           attempt to circumvent any technological protection mechanism or other security feature of the Software.

(c)                If you become aware of misuse of your Subscription by any person, any errors in the material on your Subscription or any difficulty in accessing or using your Subscription, please contact us immediately using the contact details or form provided on our Website.

(d)               You agree:

(i)                 to comply with each of your obligations in these Terms;

(ii)                to sign up for an Account in order to use the Software;

(iii)               that information given to you through the Software or by us is general in nature and we take no responsibility for anything caused by any actions you take in reliance on that information; and

(iv)               that we may cancel your Account at any time if we consider, in our absolute discretion, that you or they are in breach of, or are likely to breach, this clause 6.

7           FEES AND PAYMENT

7.1               TRIAL PERIOD

We may from time to time offer a free trial period of the Software (Free Trial Period). No payments will be due during any Free Trial Period and your first payment will be due immediately after the expiry of the Free Trial Period.

7.2               SUBSCRIPTION FEES

(a)               You must pay subscription fees to us in the amounts specified in the App Store or Google Play Store (for our App) or as otherwise specified on our Website for your Subscription Tier, or as otherwise agreed in writing (Subscription Fees). 

(b)               All Subscription Fees must be paid in advance and are non-refundable for change of mind.

(c)                Unless otherwise agreed in writing, the Subscription Fees are due and payable on a recurring basis for the duration of your Subscription, with the first payment being due on the first day of the Subscription Period (or immediately after the expiry of any applicable Free Trial Period) and at the beginning of every Renewal Period thereafter.

7.3               AUTOMATIC RECURRING BILLING

Subject to clause 7.4:

(a)          Your Subscription will continue to renew on an automatic indefinite basis unless you cancel through the applicable App Store. 

(a)               While your Subscription is maintained, your Subscription Fees will continue to be charged by the applicable App Store using the payment method associated with your App Store account.

(b)               By signing up for a recurring Subscription, you acknowledge and agree that your Subscription has an initial and recurring payment feature, and you accept responsibility for all recurring charges prior to your cancellation of your Subscription. 

7.4               CHANGES TO SUBSCRIPTION FEES

We may, from time to time, change our Subscription Fees. Where required, changes will be implemented through the applicable App Store in accordance with its policies. 

7.5               GST

Unless otherwise indicated, the Fees do not include GST. In relation to any GST payable for a taxable supply by us, you must pay the GST subject to us providing a tax invoice.

7.6               CARD SURCHARGES

We reserve the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard or American Express).

7.7               ONLINE PAYMENT PARTNER

(a)               We may use third-party online payment partners, currently Apple/Google Play (Online Payment Partner) to collect Subscription Fees. 

(b)               You acknowledge agree that:

(i)                 the processing of payments by the Online Payment Partner will be, in addition to this agreement, subject to the terms, conditions and privacy policies of the Online Payment Partner, which can be found [here];

(ii)                you release us and our Personnel in respect of all liability for loss, damage or injury which may be suffered by any person arising from any act or omission of the Online Payment Partner, including any issue with security or performance of the Online Payment Partner’s platform or any error or mistake in processing your payment; and

(iii)               We reserve the right to correct, or to instruct our Online Payment Partner to correct, any errors or mistakes in collecting your payment. 

(b)               You have the right to reject any terms and conditions of the Online Payment Partner. If you reject those terms, we cannot provide you with the Subscription and clause 13 will apply.

8           INTELLECTUAL PROPERTY AND DATA

8.1               SOFTWARE CONTENT INTELLECTUAL PROPERTY

(a)               (Our ownership) We retain ownership of all Materials provided to you throughout the course of your Subscription in connection with the Software (including text, graphics, logos, design, icons, images, sound and video recordings, pricing, downloads and software) (Software Content) and reserve all rights in any Intellectual Property Rights owned or licensed by us in the Software Content not expressly granted to you.

(b)               (Licence to you) You are granted a licence to the Software Content, for the Number of Software Uses, and you may make a temporary electronic copy of all or part of any materials provided to you for the sole purpose of viewing them and using them for the purposes of the Software. You must not otherwise reproduce, transmit, adapt, distribute, sell, modify or publish those materials or any Software Content without prior written consent from us or as otherwise permitted by law.

8.2               USER DATA

Our Rights and Obligations

(a)               You grant to us (and our Personnel) a non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use User Data to the extent reasonably required to provide the Software, and for our internal business purposes, including to improve the Software and our other products and services, and including to apply machine learning and other analytics processes to the User Data, to gain commercial insights and other associated learnings, and to improve the Software, our business and our other products and services.

(b)               We reserve the right to remove any User Data at any time, for any reason, including where we deem User Data to be inappropriate, offensive, illicit, illegal, pornographic, sexist, homophobic or racist.

Your Obligations and Grant of Licence to Us

(c)                You are responsible for ensuring that:

(i)                 you share User Data only with intended recipients; and

(ii)                all User Data is appropriate and not in contravention of these Terms. 

(d)               You:

(i)                 warrant that our use of User Data will not infringe any third-party Intellectual Property Rights; and 

(ii)                indemnify us from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of such infringement.

9           CONFIDENTIALITY

(a)               Except as contemplated by these Terms, a party must not, and must not permit any of its Personnel, use or disclose to any person any Confidential Information disclosed to it by the other party without the disclosing party’s prior written consent. 

(b)               Each party must promptly notify the other party if it learns of any potential, actual or suspected loss, misappropriation or unauthorised access to, or disclosure or use of Confidential Information or other compromise of the security, confidentiality, or integrity of Confidential Information.

(c)                The notifying party will investigate each potential, actual or suspected breach of confidentiality and assist the other party in connection with any related investigation. 

10        PRIVACY 

(a)               We collect personal information about you in the course of providing you with the Software, to contact and communicate with you, to respond to your enquiries and for other purposes set out in our Privacy Policy which can be found at  https://www.activechef.ai/legal-pages/privacy-policy. 

(b)               Our Privacy Policy contains more information about how we use, disclose and store your personal information and details how you can access and correct your personal information. 

(c)                By agreeing to these Terms, you agree to our handling of personal information in accordance with our Privacy Policy.

11        LIABILITY

11.1            WARRANTIES AND LIMITATIONS

(a)               (Warranties) We warrant that:

(i)                 during the Subscription Period, the Software will perform substantially in accordance with the Documentation;

(ii)                during the Subscription Period, the Software will be provided as described to you in, and subject to, these Terms; and

(iii)               to our knowledge, the use of the Software in accordance with these Terms will not infringe the Intellectual Property Rights of any third party.

(b)               (Errors) We will correct any errors, bugs or defects in the Software which arise during your Subscription and which are notified to us by you, unless the errors, bugs or defects:

(i)                 result from the interaction of the Software with any other Software or computer hardware, software or services not approved in writing by us;

(ii)                result from any misuse of the Software; or

(iii)               result from the use of the Software by you other than in accordance with these Terms or the Documentation.

(c)                (Service Limitations) While we will use our best endeavours to ensure the Software is working for its intended purpose, you acknowledge and agree that from time to time, you may encounter the following issues:

(i)                 the Software may have errors or defects;

(ii)                the Software may not be accessible at times;

(iii)               messages sent through the Software may not be delivered promptly, or delivered at all;

(iv)               information you receive or supply through the Software may not be secure or confidential; or

(v)                any information provided through the Software may not be accurate or true.

(d)               (Exclusion) To the maximum extent permitted by applicable law, all express or implied representations and warranties not expressly stated in these Terms are excluded.

(e)               (Consumer law) Nothing in these Terms is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, the Client may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services provided.

11.2            LIABILITY

(a)               To the maximum extent permitted by law and subject to clause 11.2(b), the total liability of each party in respect of loss or damage sustained by the other party in connection with these Terms or the Software is limited to the total Fees paid to us by you in the 3 months preceding the date of the event giving rise to the relevant liability.

(b)               Clause 11.2(a) does not apply to your liability in respect of loss or damage sustained by us arising from your breach of third party intellectual property rights.

11.3            CONSEQUENTIAL LOSS

To the maximum extent permitted by law, neither party will be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue in connection with these Terms or any goods or services provided by us, except:

(a)               in relation to a party’s liability for fraud, personal injury, death or loss or damage to tangible property; or

(b)               to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth).

12        AI GENERATED CONTENT

(a)          The Software uses artificial intelligence and machine learning technologies to generate personalised recipes, meal plans, ingredient suggestions, nutritional information and other content ("AI Content") based on information you provide through the Software. 

(b)          You acknowledge and agree that:

(i)           AI Content is generated automatically and may vary in quality, accuracy, completeness or suitability;

(ii)           we do not review or verify AI Content before it is presented to you;

(iii)          you are solely responsible for reviewing and assessing all AI Content before relying or acting on it; and

(iv)          your use of any AI Content is at your own risk, subject to your rights under applicable law. 

(e)          To generate AI Content and improve the Software, we may process the information, prompts and other content you submit through the Software in accordance with these Terms and our Privacy Policy. 

(f)           Subject to applicable law, we do not accept responsibility for any loss, damage, injury, illness, allergic reaction or other consequence arising from your reliance on AI Content, except to the extent caused by our failure to comply with a non-excludable guarantee under applicable law.

13        UPGRADE AND DOWNGRADES

(a)               You may upgrade or downgrade your Subscription Tier through the applicable App Store.

(b)               If you choose to downgrade your Subscription, access to the new Subscription Tier and the new Subscription Fees will kick in at the start of the next Renewal Period

(c)                If you choose to downgrade your Subscription, you acknowledge and agree we are not liable, and you release us from all claims in relation to, any loss of content, features, or capacity, including any User Data.

14        CANCELLATION

14.1            CANCELLATION AT ANY TIME

Subject to clause 3, you may cancel your Subscription at any time through your applicable App Store account settings. Cancellation will take effect at the end of your current Subscription Period. 

14.2            CANCELLATION FOR BREACH

(a)               Either party may cancel your Subscription immediately by written notice if there has been a Breach of these Terms.

(b)               A “Breach” of these Terms means:

(i)                 a party (Notifying Party) considers the other party is in breach of these Terms and notifies the other party;

(ii)                the other party is given 14 Business Days to rectify the breach; and

(iii)               the breach has not been rectified within 14 Business Days or another period agreed between the parties in writing.

14.3            DATA BACKUP

(a)               Upon termination of the agreement, you will have 30 days to access and export your data. After this period, we will securely delete all personal data, except where retention is required by applicable law or expressly instructed by you. Backup data will be rendered inaccessible and deleted within 60 days. 

(b)               While we disclaim liability for indirect, incidental, or consequential losses arising from termination, we acknowledge our obligation to ensure that Client Data is handled in accordance with this Agreement, the Privacy Act 1988 (Cth) and any other relevant legislation or regulation applicable in your jurisdiction. 

(c)                We shall not be liable for any loss of Client Data resulting from your failure to export or request return of such data within the agreed timeframe following termination, provided that we have made such options reasonably available.

15        DISPUTE RESOLUTION

(a)               A party claiming that a dispute has arisen under or in connection with this agreement must not commence court proceedings arising from or relating to the dispute, other than a claim for urgent interlocutory relief, unless that party has complied with the requirements of this clause.

(b)               A party that requires resolution of a dispute which arises under or in connection with this agreement must give the other party or parties to the dispute written notice containing reasonable details of the dispute and requiring its resolution under this clause.

(c)                Once the dispute notice has been given, each party to the dispute must then use its best efforts to resolve the dispute in good faith. If the dispute is not resolved within a period of 14 days (or such other period as agreed by the parties in writing) after the date of the notice, any party to the dispute may take legal proceedings to resolve the dispute.

16        FORCE MAJEURE

(a)               We will not be liable for any delay or failure to perform its obligations under this agreement if such delay or failure arises out of a Force Majeure Event. 

(b)               If a Force Majeure Event occurs, we must use reasonable endeavours to notify you of:

(i)                 reasonable details of the Force Majeure Event; and

(ii)                so far as is known, the extent to which We will be unable to perform or be delayed in performing our obligations under this agreement.

(c)                Subject to compliance with clause 16(b), our relevant obligation will be suspended during the Force Majeure Event to the extent that it is affected by the Force Majeure Event.

(d)               For the purposes of this agreement, a ‘Force Majeure Event’ means any:

(i)                 act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;

(ii)                strikes or other industrial action outside of the control of us; 

(iii)               war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic; or

(iv)               any decision of a government authority in relation to COVID-19, or any threat of COVID-19 beyond the reasonable control of us, to the extent it affects our ability to perform our obligations.

17        NOTICES

(a)               A notice or other communication to a party under these Terms must be:

(i)                 in writing and in English; and

(ii)                delivered via email to the other party, to the email address specified in the Order, or if no email address is specified in the Order, then the email address most regularly used by the parties to correspond regarding the subject matter of this agreement as at the date of this agreement (Email Address). The parties may update their Email Address by notice to the other party.

(b)               Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party’s Email Address, notice will be taken to be given:

(i)                 24 hours after the email was sent, unless that falls on a Saturday, Sunday or a public holiday in the state or territory whose laws govern this agreement, in which case the notice will be taken to be given on the next occurring business day in that state or territory; or

(ii)                when replied to by the other party,

whichever is earlier.

18        GENERAL

18.1            GOVERNING LAW AND JURISDICTION

This agreement is governed by the law applying in Western Australia, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of Western Australia, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.

18.2            WAIVER

No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.

18.3            SEVERANCE

Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.

18.4            JOINT AND SEVERAL LIABILITY

An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.

18.5            ASSIGNMENT

A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.

18.6            ENTIRE AGREEMENT

This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.

18.7            INTERPRETATION

(a)               (singular and plural) words in the singular includes the plural (and vice versa);

(b)               (currency) a reference to $; or “dollar” is to Australian currency;

(c)                (gender) words indicating a gender includes the corresponding words of any other gender;

(d)               (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;

(e)               (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;

(f)                 (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;

(g)               (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;

(h)               (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;

(i)                 (headings) headings and words in bold type are for convenience only and do not affect interpretation;

(j)                 (includes) the word “includes” and similar words in any form is not a word of limitation; and

(k)                (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision.

DEFINITIONS