Terms of service

Smrt.ly is a product of Carcloud Pty Ltd (Carcloud). By using Smrt.ly and the Smrt.ly website, you agree that you have understood and accept the terms and conditions below, our privacy policy and our refund policy. You may not use the Smrt.ly website and services if you do not agree with these full terms and conditions.

 

A SOLUTION AND AGREEMENT

1. Smrt.ly is a cloud-based communications and marketing solution (Solution).

2. The Solution sends booking confirmations and notifications on behalf of the Customer; it delivers them to mobile phones and hosts rich mobile web content, providing the Customer with a platform for promotions. The Solution provides analytics and event tracking allowing end-user activity to be tracked for the Customer.

3. The Customer agrees to use the Solution for its own business purposes in accordance with the terms of this Agreement.

 

B PRICING AND PAYMENT

Customer will be charged according to the plan they have selected. Refunds will be issued according to the Smrt.ly refund policy.

 

C RESTRICTIONS AND LIMITATIONS ON USE

The customer may only use Smrt.ly as specified in the details of their chosen plan.

 

D MOBILE COMMUNICATIONS

1. Latency of messaging

Smrt.ly uses leading mobile gateways in multiple geographic regions to accelerate delivery times. While Carcloud continually monitors gateway performance, Carcloud will not be responsible for any delays due to external communications. Where these delays are on-going, Carcloud will work with alternate messaging gateways.

2. Accuracy of information

The Customer is responsible for providing accurate information to Carcloud, including mobile phone number details. If incorrect phone number information is sent to Carcloud but the Smrt.ly is successfully delivered to the number provided, the Customer will still be charged for the Smrt.ly at the normal rate.

 

E CONFIDENTIAL INFORMATION

1. Confidential Information (Clause 15.1)

Carcloud shall keep all information in the Solution regarding the Customer and its business confidential.

The Customer shall keep all knowledge of Carcloud’s business, pricing and details of other customers confidential.

Any information given to a party is in confidence.

 

F GENERAL

1. Governing Law (Clause 23.6)

Victoria, Australia

2. Reference City (Clause 2.1(c))

Melbourne, Australia


GENERAL CONDITIONS

1 RECITALS

1.1 The Customer wishes to access the Solution provided by Carcloud.

1.2 The terms and conditions in this Agreement govern the provision of the Solution to the Customer by Carcloud.

2 INTERPRETATION

2.1 The following definitions apply in this Agreement:

(a) ABN means Australian Business Number.

(b) ACN means Australian Company Number.

(c) Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in the Reference State set out in item F1 of the Particulars.

(d) Commencement Date means the date set out in this Agreement.

(e) Confidential Information means all information (whether or not it is described as confidential) in any form or medium concerning any past, present or future business, operations or affairs of either party, including, without limitation:

i all technical or non-technical data, formulae, patterns, programs, devices, methods, techniques, plans, drawings, models and processes, source and object code, software and computer records;

ii all business and marketing plans and projections, details of agreements and arrangements with third parties, and Customer and supplier information and lists;

iii all financial information, pricing schedules and structures, product margins, remuneration details and investment outlays;

iv all information concerning any employee, Customer, contractor, supplier or agent of the relevant party;

v the party’s policies and procedures;

vi all notes, data, reports and other records (whether or not in tangible form) based on, incorporating or derived from information referred to in paragraphs i, ii, iii, iv, v, and vi of this definition;

vii all information contained in this Agreement; and

viii all copies (whether or not in tangible form) of the information, notes, reports and records referred to in paragraphs i, ii, iii, iv, v, vi and vii of this definition,

but excludes information that the other party can establish:

ix is known by or is in the other party’s possession or control other than through a breach of this Agreement and is not subject to any other obligations of confidence; or

x is in the public domain other than by a breach of this Agreement or any other obligations of confidence.

(f) Corporations Act means the Corporations Act 2001 (Cth).

(g) Customer Data means data that is entered into the Customer’s account in the Solution, whether by the Customer, its customers or through automation or integrations with third-party services.

(h) Fees & Charges means the fees and charges as set out in item B of the Particulars.

(i) Force Majeure means an event or cause beyond the reasonable control of the party claiming force majeure. It includes each of the following, to the extent it is beyond the reasonable control of that party:

i acts of God, lightning, storm, flood, fire, earthquake or explosion cyclone, tidal wave, landslide, adverse weather conditions;

ii act of public enemy, war (declared or undeclared), terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic;

iii the effect of any change in applicable laws, orders, rules or regulations of any government or other competent authority; and

iv embargo, inability to obtain necessary materials, equipment or facilities, or power or water shortage.

(j) General Conditions means the terms and conditions set out in the section of this Agreement entitled “General Conditions”.

(k) GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

(l) Intellectual Property includes, without limitation all rights (present and future) conferred by common law, equity or statute (and all moral rights) connected with business names, computer software, confidential information, copyright, designs, domain names, formulas, inventions, knowhow, patents, trade marks, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic field, the benefit of any application to register such a right and the benefit of any renewal or extension of such a right.

(m) Particulars means this Agreement’s details and variables set out in the section of this Agreement entitled “Particulars”.

(n) Pricing means the pricing set out in the plan selected by the Customer or as notified to the Customer in writing by Carcloud from time-to-time.

(o) Privacy Act means the Privacy Act 1989 (Cth).

(p) Privacy Policy means the Smrt.ly privacy policy.

(q) Solution means the solution in item A of the Particulars.

(r) Special Conditions means the terms and conditions set out in the section of this Agreement entitled “Special Conditions”.

(s) Tax Invoice has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

2.2 Headings are only for convenience and do not affect interpretation. The following rules apply unless the context requires otherwise:

(a) The singular includes the plural and the opposite also applies.

(b) If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.

(c) A reference to a clause refers to clauses in this Agreement.

(d) A reference to legislation is to that legislation as amended, re‑enacted or replaced, and includes any subordinate legislation issued under it.

(e) Mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included.

(f) A reference to a party to this Agreement or another Agreement or document includes that party’s successors and permitted substitutes and assigns (and, where applicable, the party’s legal personal representatives).

(g) A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.

(h) A reference to information includes information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets.

(i) A rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this agreement or any part of it.

(j) If a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day.

(k) A reference to dollars or $ is to an amount in US Dollar (USD) currency.

3 APPLICATION

3.1 This Agreement applies to use of and access to the Solution.

3.2 Where the Customer does not or no longer accepts the terms and conditions of this Agreement, the Customer must immediately cease using the Solution.

3.3 This Agreement may be updated by Carcloud at its absolute discretion from time-to-time, and unless stated otherwise by Carcloud in writing, such updates shall come into effect for use of the Solution, at the commencement of the following Term after the Customer receives notice of the update(s). Where the Customer does not accept such changes it must immediately notify Carcloud and cease to use the Solution.

4 SOLUTION

4.1 The Customer wishes to access the Solution and Carcloud agrees to grant the Customer access to the Solution on the terms of this Agreement.

4.2 The Solution is only accessible to the Customer for the term specified in their selected Smrt.ly plan.

4.3 The Solution may be available in various modules, packages and combinations, which the Customer may upgrade, downgrade or otherwise access or subscribe separately or together from time-to-time as indicated by Carcloud in its absolute discretion.

4.4 The Customer agrees and accepts that the Solution is:

(a) hosted by Carcloud and shall only be installed, accessed and maintained by the Carcloud, accessed using the internet or other connection to Carcloud‘s servers and is not available ‘locally’ from the Customer’s systems; and

(b) managed and supported exclusively by Carcloud from Carcloud’s third party server hosting the Solution and that no ‘back-end’ access to the Solution is available to the Customer unless expressly agreed in writing.

4.5 As a hosted and managed service, Carcloud reserves the right to upgrade, maintain, tune, backup, amend, add or remove features, redesign, improve or otherwise alter the Solution in its absolute discretion.

4.6 Carcloud shall not exercise its rights under clause 4.5 in a manner that would intentionally cause the Customer to lose access to Customer Data, other than in accordance with the terms of this Agreement.

5 LICENSE

5.1 By accepting the terms of this Agreement, the Customer is granted a limited, non-exclusive and revocable license to access the Solution for the Term, in accordance with the terms and conditions of this Agreement.

5.2 Carcloud may issue the license to the Customer on the further terms or limitations set out in item C of the Particulars (including the number of users) as it sees fit.

5.3 Carcloud may revoke or suspend the Customer’s license(s) in its absolute discretion for any reason that it sees fit, including for breach of the terms and conditions in this Agreement by the Customer’s users. Carcloud will ordinarily advise the Customer of any suspension or revocation however it is under no obligation to do so.

6 USE

6.1 The Customer agrees and warrants that:

(a) it shall only use the Solution for legal purposes and shall not use it to engage any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by Carcloud in its discretion; and

(b) all information it provides to Carcloud and/or in connection with the Solution will be accurate, truthful and compliant in all respects.

6.2 Carcloud may contact the Customer by physical or electronic means with respect to the Customer’s use or access to the Solution. The Customer may specifically request that Carcloud refrain from making certain types or use certain mediums of communication with the Customer.

7 AUTHORISED USERS

7.1 The Customer shall authorise users to access the Solution in its absolute discretion. Carcloud accepts no liability for access to Customer Data by users authorised by the Customer or that uses login details of users authorised by the Customer.

7.2 The Customer is solely responsible for the security of its usernames and passwords which provide access to the Solution including the restriction of access due to a change in the Customer’s staff.

7.3 The Customer is responsible for ensuring that its users comply with this Agreement in full and are liable for any breach by any of them.

8 CUSTOMER DATA

8.1 Carcloud obtains no right, title or interest in Customer Data including any Intellectual Property found within it. Carcloud accepts no liability for the content of Customer Data.

8.2 The Customer is responsible for the accuracy, quality and legality of Customer Data and the Customer’s acquisition of it, and the users that create, access and/or use Customer Data.

8.3 Despite clause 8.1 Carcloud shall be authorised to permanently delete Customer Data where outstanding Fees & Charges remain unpaid in accordance with clauses 10 and 11.

8.4 Carcloud shall not access, use, modify or otherwise deal with Customer Data except where required by compulsion of law or upon the Customer’s implied or express authority (such as to provide support for the Solution).

8.5 Carcloud bears no responsibility for Customer Data and it is the Customer’s sole responsibility to ensure that it has backups and/or redundant access to the Customer Data stored in the Solution.

8.6 Whenever mobile phone numbers are stored within the Solution, such Customer Data will only be used by Carcloud to perform the intended activity for the Customer; it remains the property of the Customer and will be deleted at the Customer’s request.

8.7 Whenever Carcloud receives personal details on behalf of the Customer outside Customer Data described in clause 8.6, such details will only be used by Carcloud to perform the intended activity for the Customer; they will not be permanently stored by Carcloud and remain the property of the Customer.

9 PRIVACY

9.1 Carcloud maintains a Privacy Policy in compliance with the provisions of the Privacy Act for data that it collects about the Customer and other agencies. Carcloud warrants that it will abide by the Privacy Act.

9.2 The Privacy Policy does not apply to how the Customer handles Customer Data. It is the Customer’s responsibility to meet the obligations of the Privacy Act by implementing a Privacy Policy in accordance with law.

9.3 Carcloud makes no warranty as to the suitability of the Solution in regards to the Customer’s privacy obligations at law or contract, and it is the Customer’s responsibility to determine whether the Solution is appropriate for the Customer’s circumstances.

10 FEES & CHARGES

10.1 The Customer agrees to pay all Fees & Charges as and when they fall due in accordance with their chosen plan and to the extent permissible by law Fees & Charges are non-cancellable or refundable once ordered or paid.

10.2 The Customer agrees to pay Carcloud the Fees & Charges set out in their chosen plan.

10.3 Carcloud may introduce new services and/or Fees & Charges by giving the Customer written notice of their availability and applicability.

10.4 Carcloud shall notify the Customer of any changes to existing Fees & Charges no less than 30. Carcloud reserves the right to change the Fees & Charges of the Customer’s at any time at its absolute discretion.

10.5 If the Customer does not accept a change to Fees & Charges, the Customer must notify Carcloud before the commencement of the next billing period.

10.6 Fees & Charges for calendar periods shall be adjusted pro-rata for initial charges, and then charged for the full calendar period.

10.7 Carcloud may revoke or suspend the Customer’s license to access the Solution for unpaid Fees & Charges without liability.

10.8 Where Carcloud:

(a) is required to perform any services for the Customer outside of what is set out in this Agreement or otherwise in writing; and

(b) is subject to delays caused by changes or complexities outside of its control (and not caused by its breach of this Agreement), then

the Customer agrees that Carcloud shall be entitled to charge the Customer an additional amount that is reasonable for the service performed.

11 INVOICING & PAYMENTS

11.1 Carcloud shall issue the Customer a Tax Invoice for all Fees & Charges. The terms of payment set out in the Customer’s chosen plan shall apply.

11.2 Where Fees & Charges are payable:

(a) in advance, no services shall be commenced or provided unless a Tax Invoice has been issued and paid in full; and

(b) in arrears, Carcloud reserves the right to suspend the Customer’s services until the Tax Invoice for those Fees & Charges has been paid in full.

11.3 Should the Customer dispute a Tax Invoice, the Customer must notify Carcloud of the disputed item within 5 Business Days of the date of the Tax Invoice. The Customer must pay the amount of the Tax Invoice not in dispute within the prescribed payment period.

11.4 Overdue Tax Invoices shall accrue interest at the rate of 1.5% per month, or in default, the maximum rate of penalty interest prescribed under law.

11.5 The Customer authorises Carcloud to use the Customer’s information for the purposes of obtaining a credit assessment or to otherwise make investigations as to the Customer’s payment history.

11.6 Refunds are only available as outlined in the Smrt.ly refund policy.

12 DATA

12.1 Security. Carcloud takes the security of the Solution and the privacy of its users very seriously, and shall take reasonable steps to ensure that the Solution is secure from unauthorised access consistent with commercially-available ongoing online security practices. The Customer agrees that:

(a) the Customer shall not do anything to prejudice the security or privacy of Carcloud’s systems or the information on them; and

(b) Carcloud is in no way liable for any breach of its systems that results in unauthorised access to or corruption of Customer Data, including but not limited to viruses.

12.2 Transmission. Carcloud shall do all things reasonable to ensure that the transmission of data occurs according to accepted industry standards. It is up to the Customer to ensure that any transmission standards meet the Customer’s operating and legal requirements.

12.3 Storage. Carcloud may limit the amount of data that the Customer stores in the Solution, and shall advise the Customer of such. Data that is stored with Carcloud shall be stored according to accepted industry standards.

12.4 Backup. Carcloud shall perform backups of its entire system in as reasonable manner and at such times and intervals as is reasonable for its business purposes. Carcloud does not warrant that it is able to backup or recover specific Customer Data from any period of time unless so stated in writing by Carcloud.

12.5 Transfer & Return. Upon request, Carcloud shall export all the Customer Data and return same to the Customer by way of physical media or download, as is appropriate, and the Customer shall pay Fees & Charges and reimburse Carcloud for any reasonable expenses incurred in doing so (such as freight and insurance).

13 ACCESS

13.1 Solution. By accepting the terms of this Agreement the Customer agrees that Carcloud shall provide access to the solution to the best of its abilities, however it accepts no responsibility for ongoing, uninterrupted or fault-free access to the Solution for any reason whatsoever.

13.2 Scheduled Maintenance. Carcloud will provide prior written notice of any scheduled maintenance which will result in access being unavailable for a period of time. Carcloud provides a warranty that access will be available for a minimum period of 99% per month, excluding:

(a) scheduled maintenance in relation to which the Customer has received written notice;

(b) access problems caused by client or network connectivity; and

(c) problems caused by disruption to services required by Carcloud and operated by the Customer or by a third party on behalf of the Customer.

14 INTELLECTUAL PROPERTY

14.1 Trademarks. Carcloud has moral & registered rights in its trademarks and the Customer shall not copy, alter, use or otherwise deal in the marks without the prior written consent of Carcloud.

14.2 Proprietary Information. The Solution may use software and other proprietary systems and Intellectual Property. Carcloud warrants that it owns or has appropriate authority to use the Intellectual Property embodied in the Solution. The Customer acknowledges that the Solution is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally, and warrants that it shall not breach or exceed the terms of this Agreement so as to infringe on any such rights through the use of the Solution.

14.3 Solution. The Customer agrees and accepts that the Solution is the Intellectual Property of Carcloud and the Customer further warrants that by using the Solution the Customer will not:

(a) copy the Solution or the services that it provides for the Customer’s own commercial purposes; and

(b) directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in the Solution or any documentation associated with it.

14.4 Content. All content (with the exception of Customer Data) remains the Intellectual Property of Carcloud, including (without limitation) any source code, analytical and statistical information, ideas, enhancements, feature requests, suggestions or other information provided by the Customer or any other party with respect to the Solution.

15 CONFIDENTIALITY

15.1 The information and classes of information in item E1 of the Particulars are Confidential Information for the purposes of this Agreement.

15.2 Each party acknowledges and agrees that:

(a) the Confidential Information is secret, confidential and valuable to the disclosing party (Discloser);

(b) it owes an obligation of confidence to the Discloser concerning the Confidential Information;

(c) it must not disclose the Confidential Information to a third party except as permitted in this Agreement;

(d) all Intellectual Property rights remain vested in the Discloser but disclosure of Confidential Information does not in any way transfer or assign any rights or interests in the Intellectual Property to the receiving party; and

(e) any breach or threatened breach by the receiving party of an obligation under this Agreement may cause the Discloser immediate and irreparable harm for which damages alone may not be an adequate remedy. Consequently the Discloser has the right, in addition to other remedies available at law or in equity, to seek injunctive relief against the receiving party (and its agents, assigns, employees, officers and directors, personally) or to compel specific performance of this clause.

15.3 A party must notify the Discloser in writing, giving full details known to it immediately, when it becomes aware of:

(a) any actual, suspected, likely or threatened breach by it of clause 15.1;

(b) any actual, suspected, likely or threatened breach by any person of any obligation in relation to the Confidential Information; or

(c) any actual, suspected, likely or threatened theft, loss, damage, or unauthorised access, use or disclosure of or to any Confidential Information.

15.4 The receiving party must promptly take all steps that the Discloser may reasonably require and must co-operate with any investigation, litigation or other action of the Discloser or of a related body corporate if there is:

(a) any actual, suspected, likely or threatened breach of a term of this Agreement; or

(b) any theft, loss, damage or unauthorised access, use or disclosure of or to any Confidential Information that is or was in its possession or control.

16 LIABILITY & INDEMNITY

16.1 The Customer agrees that it uses the Solution at its own risk. Carcloud’s maximum liability related in any way to this Agreement is limited to the lesser of the amount paid to it for the preceding 12 months or $100,000.

16.2 The Customer acknowledges that Carcloud is not responsible for the conduct or activities of any user and that Carcloud is not liable for such conduct or activities under any circumstances.

16.3 The Customer agrees to indemnify Carcloud for any loss, damage, cost or expense that Carcloud may suffer or incur as a result of or in connection with the Customer’s use of or conduct in connection with the Solution, including any breach by the Customer of this Agreement.

16.4 Carcloud shall defend the Customer against any claim, demand, suit, or proceeding (Claim) made or brought against the Customer by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the Intellectual Property rights of a third party, and shall indemnify the Customer for any damages finally awarded against, and for reasonable legal fees incurred by the Customer in connection with any such Claim; provided, that the Customer (a) promptly gives Carcloud written notice of the Claim; (b) gives Carcloud sole control of the defence and settlement of the Claim (provided that Carcloud may not settle any Claim unless the settlement unconditionally releases the Customer of all liability); and (c) provides to Carcloud all reasonable assistance.

16.5 In no circumstances will either party be liable for any direct, incidental, consequential or indirect damages, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the Customer’s access to, or use of, or inability to use the Solution or any content, or in any way relating to an experience itself (or the provision or non-provision of an experience), whether based on warranty, contract, tort, negligence, in equity or any other law, and whether or not the other party knew or should have known of the possibility of such damage to business interruption of any type, whether in tort, contract or otherwise.

16.6 Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted or modified. Apart from those that cannot be excluded, Carcloud and Carcloud’s related entities exclude all conditions and warranties that may be implied by law. To the extent permitted by law, Carcloud’s liability for breach of any implied warranty or condition that cannot be excluded is restricted, at Carcloud’s option to:

(a) the re-supply of services or payment of the cost of re-supply of services; or

(b) the replacement or repair of goods or payment of the cost of replacement or repair.

17 BREACH

17.1 Where a party is in breach of this Agreement, the other party may issue a written notice (Breach Notice) requiring the party in breach that must set out:

(a) the nature of the breach;

(b) the provisions of the Agreement that are alleged to have been breached;

(c) a reasonable timeframe to remedy the breach in not less than 10 Business Days; and

(d) the action required to remedy the breach.

17.2 Where a party issues a compliant Breach Notice in accordance with clause 17.1, the receiving party shall be required to respond and/or remedy the breach as so set out in the Breach Notice. Failure to respond in writing setting out:

(a) the steps taken to remedy the breach; or

(b) why the party believes it is not in breach as put forward in the Breach Notice,

shall not in itself confirm the alleged breach but shall be in itself a breach of this Agreement.

17.3 Failure to remedy a breach set out in a Breach Notice within the reasonable timeframe set out under clause 17.1(c) shall be a material breach of this Agreement (Material Breach).

18 TERMINATION

18.1 Breach. Where a party is in Material Breach of this Agreement, the other party may terminate this Agreement by giving written notice of termination, which shall become effective 5 Business Days after the date of the written notice of termination.

18.2 Cancellation or Non-Renewal. The Customer and Carcloud may terminate this Agreement with no less than the period of notice set out in item C.6 of the Particulars.

18.3 Insolvency. Either party may terminate this Agreement immediately by notice, if the other party:

(a) stops or suspends or threatens to stop or suspend payment of all or a class of its debts;

(b) is insolvent within the meaning of section 95A of the Corporations Act;

(c) fails to comply with a statutory demand (within the meaning of section 459F(1) of the Corporations Act) unless:

i the debt to which the statutory demand relates is discharged within 15 Business Days of the date of the failure; or

ii the party demonstrates to the satisfaction of the other party (acting reasonably) that it is able to pay all its debts as and when they become due and payable;

(d) has an administrator appointed in respect of it;

(e) has a controller within the meaning of section 9 of the Corporations Act or similar officer appointed to the whole or a substantial part of its assets or undertaking and that controller or similar officer is not removed within 15 Business Days of the appointment;

(f) has an order made or a resolution passed for its winding up or dissolution or it enters into an arrangement, compromise or composition with or assignment for the benefit of its creditors or a class of them;

(g) has any security enforced over, or a distress, execution or other similar process levied or served against, the whole or a substantial part of its assets or undertaking; or

(h) is subject to any event which, under the law of any relevant jurisdiction, has an analogous or equivalent effect to any of the events listed above.

18.4 Expiry or termination of this Agreement is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of this Agreement up to the date of expiry or termination.

18.5 The rights and obligations under the relevant provisions of clauses 7, 8, 9, 10, 11, 14, 15, 16, 17, 18, 19, 20, 21 and 22 survive termination of this Agreement.

19 DISPUTES

19.1 Negotiation. If there is a dispute between the parties relating to or arising out of this Agreement, then within 5 Business Days of a party notifying the other party of a dispute, senior representatives from each party must meet and use all reasonable endeavours acting in good faith to resolve the dispute by joint discussions.

19.2 Mediation. If the dispute between the parties relating to or arising out of this Agreement is not resolved within 5 Business Days of notification of the dispute under Clause 19.1, the parties must agree to submit the dispute to mediation, administered by lawyers engaged in alternative dispute resolution.

19.3 Arbitration. If the dispute between the parties relating to or arising out of this Agreement is not settled by mediation under Clause 19.2 within 21 Business Days, either party may by written notice to the other refer the dispute to arbitration administered by the Institute of Arbitrators Australia. The arbitrator will be agreed between the parties from a panel suggested by the President of the Institute of Arbitrators Australia or failing Agreement, an arbitrator will be appointed by the President of the Institute of Arbitrators Australia.

19.4 Court proceedings. A party may not commence court proceedings in relation to a dispute relating to or arising out of this Agreement until it has exhausted the procedures in this clause 19 unless the party seeks appropriate injunctive or other interlocutory relief to preserve property or rights or to avoid losses that are not compensable in damages.

20 FORCE MAJEURE

20.1 If a party is prevented in whole or in part from carrying out its obligations under this Agreement as a result of Force Majeure, it will promptly notify the other party accordingly. The notice must:

(a) specify the obligations and the extent to which it cannot perform those obligations;

(b) fully describe the event of Force Majeure;

(c) estimate the time during which the Force Majeure will continue; and

(d) specify the measures proposed to be adopted to remedy or abate the Force Majeure.

20.2 Following a notice of Force Majeure in accordance with clause 20.1 and while the Force Majeure continues, the obligations which cannot be performed because of the Force Majeure will be suspended, other than obligations to pay money that is due and payable.

20.3 The party that is prevented from carrying out its obligations under this Agreement as a result of Force Majeure must remedy the Force Majeure to the extent reasonably practicable and resume performance of its obligations as soon as reasonably possible.

20.4 The party that is prevented from carrying out its obligations under this Agreement as a result of Force Majeure must take all action reasonably practicable to mitigate any loss suffered by the other party as a result of the party’s failure to carry out its obligations under this Agreement.

20.5 The term of this Agreement will not be extended by the period of Force Majeure.

21 ELECTRONIC Execution, COMMUNICATION & Amendment

21.1 The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.

21.2 The parties agree that this Agreement may be executed electronically and that any signature required directly or incidental to this Agreement may be made electronically except where required to be physically made under law.

21.3 The Customer can direct notices, enquiries, complaints and so forth to Carcloud as set out in this Agreement. Carcloud will notify the Customer of a change of details from time-to-time.

21.4 Carcloud will send the Customer notices and other correspondence to the details that the Customer submits to Carcloud, or that the Customer notifies Carcloud of from time-to-time. It is the Customer’s responsibility to update its contact details as they change.

21.5 A consent, notice or communication under this Agreement is effective if it is sent as an electronic communication unless required to be physically delivered under law.

21.6 Notices must be sent to the parties’ contact details as specified in their Smrt.ly account.

22 assignment

22.1 A party must obtain the written approval of the other party before assigning this Agreement to any third-party, which approval shall not be unreasonably withheld.

23 general

23.1 Priority. To the extent that any terms of the Particulars are inconsistent with the terms of the General Conditions, the terms of the General Conditions shall prevail. To the extent that the Special Conditions are inconsistent with any other terms of this Agreement, the Special Conditions shall prevail.

23.2 Disclaimer. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Agreement.

23.3 Relationship. The relationship of the parties to this Agreement does not form a joint venture or partnership. The Customer warrants that Carcloud has no relationship with the Customer’s tenants, clients, suppliers and team, nor any other party, in respect of the Customer’s use of the Solution.

23.4 Waiver. No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.

23.5 Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to this Agreement and the transaction facilitated by it.

23.6 Governing Law. This Agreement is governed by the laws of the state set out in item F1 of the Particulars. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.

23.7 Liability for Expenses. Each party must pay its own expenses incurred in negotiating, executing, stamping and registering this Agreement.

23.8 Inconsistency. If this Agreement is inconsistent with any other previous document or Agreement between the parties, this Agreement prevails to the extent of the inconsistency.

23.9 Counterparts. This Agreement may be executed in any number of counterparts. All counterparts together will be taken to constitute one instrument.

23.10 Time. Time is of the essence in this Agreement.

23.11 Severability. Any clause of this Agreement, which is invalid or unenforceable is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Agreement.

 

END GENERAL CONDITIONS