Kradle Expand & Earn Program (KEEP)
Terms of Use

Welcome to KEEP. Please read these Terms of Use carefully. All contracts that we may offer from time to time for the provision of KEEP shall be governed by these Terms of Use.

By joining KEEP and becoming a Partner, you acknowledge that you have read, understood and you agree to the Terms of Use.


1  Definitions

1.1  Except to the extent expressly provided otherwise, in these Terms of Use:

  • Account means an account enabling a person to access KEEP;
  • Affiliate means an entity that Controls, is Controlled by, or is under common Control with the relevant entity;
  • Agreement means a contract between the parties incorporating these Terms of Use and any amendments to that contract from time to time;
  • Business Day means any weekday (Monday to Friday) other than a public holiday in Queensland, Australia;
  • Business Hours means the hours of 09:00 to 17:00 on a Business Day;
  • Change means any change to the scope of the Services OR any change to the Agreement;
  • Confidential Information means the Provider Confidential Information and the Partner Confidential Information;
  • Control means the legal power to control (directly or indirectly) the management of an entity (and "Controlled" should be construed accordingly);
  • Data Protection Laws means all applicable laws relating to the processing of Personal Data including, while it is in force and applicable to Partner Personal Data by the General Data Protection Regulation;
  • Documentation means the documentation for KEEP produced by the Provider and delivered or made available by the Provider to the Partner;
  • Effective Date means the date when the Partner completes and submits the online application (Your Details) for KEEP published by the Provider on the KEEP website;
  • Force Majeure Event means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
  • General Data Protection Regulation (GDPR) (Regulation (EU) 2016/679) is a regulation by which the European Parliament, the Council of the European Union and the European Commission intend to strengthen and unify data protection for all individuals, as of 25 May 2018.(https://www.eugdpr.org/).
  • KEEP means the program specified in the KEEP Specification, which will be made available by the Provider to the Partner via the internet in accordance with these Terms of Use;
  • KEEP Defect means a defect, error or bug in the Platform having an adverse effect on the appearance, operation, functionality or performance of KEEP, but excluding any defect, error or bug caused by or arising from:
    • (a)  any act or omission of the Partner or any person authorized by the Partner to use the Platform or KEEP;
    • (b)  any use of the Platform or KEEP contrary to the Documentation, whether by the Partner or by any person authorized by the Partner;
    • (c)  a failure of the Partner to perform or observe any of its obligations in the Agreement; and/or
    • (d)  an incompatibility between the Platform or KEEP and any other system, network, application, program, hardware or software not specified as compatible in the KEEP Specification;
  • KEEP Specification means the specification for the Platform and KEEP as set out below:
    • (a)  Platform – Microsoft Azure, SQL Database;
    • (b)  KEEP – Partner Program operation on the Platform;
  • Intellectual Property Rights means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, and rights in designs);
  • Minimum Term means, in respect of the Agreement, the period of thirty (30) days beginning on the Effective Date;
  • Partner means the person or entity identified when completing the online application (Your Details);
  • Partner Administrator(s) means the person(s) or entity identified as the system administrator(s) when completing the online application (Your Details);
  • Partner Confidential Information means:
    • (a)  any information disclosed by or on behalf of the Partner to the Provider during the Term that at the time of disclosure:
      • (i)  was marked or described as "confidential"; or
      • (ii)  should have been reasonably understood by the Provider to be confidential; and
    • (c)  the Partner Data;
  • Partner Data means all data uploaded to or stored on the Platform by the Partner; transmitted by the Platform at the instigation of the Partner; supplied by the Partner to the Provider for uploading to, transmission by or storage on the Platform; or generated by the Platform from the use of KEEP by the Partner;
  • Partner Fees has the meaning given to it in Clause 7;
  • Partner Indemnity Event has the meaning given to it in Clause 13.3;
  • Partner Personal Data means any Personal Data that is processed by the Provider on behalf of the Partner in relation to the Agreement;
  • Partner Representatives means the person or persons identified as such when completing the online application (Your Details), and any additional or replacement persons that may be appointed by the Partner;
  • Partner Systems means the hardware and software systems of the Partner that interact with, or may reasonably be expected to interact with KEEP;
  • Personal Data has the meaning given to it in the General Data Protection Regulation;
  • Platform means the platform managed by the Provider and used by the Provider to provide KEEP, including the application and database software for KEEP, the system and server software used to provide KEEP, and the computer hardware on which that application, database, system and server software is installed;
  • Provider means Kradle Software Pty Ltd, a company registered in Australia, having its registered office and principal place of business at Level 1, 139 Coronation Drive, Milton, Queensland, 4064, Australia;
  • Provider Confidential Information means:
    • (a)  any information disclosed by or on behalf of the Provider to the Partner during the Term or at any time before the termination of the Agreement (whether disclosed in writing, orally or otherwise) that at the time of disclosure was marked or described as "confidential" or should have been understood by the Partner (acting reasonably) to be confidential; and
    • (b)  the terms of the Agreement;
  • Provider Indemnity Event has the meaning given to it in Clause 13.1;
  • Services means any services that the Provider provides to the Partner, or has an obligation to provide to the Partner, under these Terms of Use;
  • Your Details means an online order form published by the Provider and completed and submitted by the Partner incorporating these Terms of Use by reference;
  • Supported Web Browser means the current release from time to time of Mozilla Firefox, Google Chrome, or any other web browser that the Provider agrees in writing shall be supported;
  • Term means the term of the Agreement, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;
  • Terms of Use means all the documentation containing the provisions of the Agreement, namely the main body of these Terms of Use, including any amendments to that documentation from time to time;
  • Update means a hot fix, patch or minor version update to any Platform software;
  • Upgrade means a major version upgrade of any Platform software.

2  Term

2.1  The Agreement shall come into force upon the Effective Date.

2.2  The Agreement shall continue in force indefinitely, subject to termination in accordance with Clause 16.

3  KEEP

  3.1 The Provider shall ensure that the Platform will, on the Effective Date, automatically generate an Account for the Partner and provide to the Partner login details for that Account.

  3.2 The Provider hereby grants to the Partner a non-exclusive license to access KEEP by means of a Supported Web Browser for the purposes of the Partner in accordance with the Documentation during the Term.

3.3  The license granted by the Provider to the Partner under Clause 3.2 is subject to the following limitations:

  • (a)  KEEP may only be accessed by the officers, employees, agents, clients and subcontractors of either the Partner or an Affiliate of the Partner;
  • (b)  KEEP may only be accessed by the registered users as identified and managed by the Partner Administrator(s), providing that the Partner may change, add or remove a designated named user in accordance with the procedure set out therein;

3.4  Except to the extent expressly permitted in these Terms of Use or required by law on a non-excludable basis, the license granted by the Provider to the Partner under Clause 3.2 is subject to the following prohibitions:

  • (a)  the Partner must not sub-license its right to access KEEP;
  • (b)  the Partner must not permit any unauthorized person to access KEEP;
  • (c)  the Partner must not republish or redistribute any content or material from KEEP; and
  • (d)  the Partner must not make any alteration to the Platform, except as permitted by the Documentation;

3.5The Partner shall use reasonable endeavours, including reasonable security measures relating to Account access details, to ensure that no unauthorised person may gain access to KEEP.

3.6  The Partner must not use KEEP in any way that causes, or may cause, damage to KEEP or Platform or impairment of the availability or accessibility of KEEP.

3.7  The Partner must not use KEEP:

  • (a)  in any way that is unlawful, illegal, fraudulent or harmful; or
  • (b)  if related to unlawful, illegal, fraudulent or harmful purpose or activity.

3.10  For the avoidance of doubt, the Partner has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.

4  Partner Obligations

4.1  Unless the parties have agreed otherwise in writing, the Partner must provide to the Provider, or procure for the Provider, such:

  • (a)  co-operation, support and advice;
  • (b)  information and documentation; and
  • (c)  governmental, legal and regulatory licenses, consents and permits, as are reasonably necessary to enable the Provider to perform its obligations under the Agreement.

5  No assignment of Intellectual Property Rights

5.1  Nothing in these Terms of Use shall assign or transfer any Intellectual Property Rights from the Provider to the Partner, or from the Partner to the Provider.

6  Representatives

6.1  The Provider shall ensure that all instructions given by the Provider in relation to the matters contemplated in the Agreement will be given to a Partner Representative, and the Partner:

  • (a)  may treat all such instructions as the fully authorised instructions of the Provider; and
  • (b)  must not comply with any instructions other than from the Provider in relation to that subject matter.

6.2  The Partner shall ensure that all instructions given by the Partner in relation to the matters contemplated in the Agreement will be given by a Partner Representative to the Provider, and the Provider:

  • (a)  may treat all such instructions as the fully authorised instructions of the Partner; and
  • (b)  must not comply with any instructions other than from the Partner in relation to that subject matter.

7  Payments

7.1 The Provider shall pay the Partner Fees to the Partner in accordance with these Terms of Use.

7.2 All amounts stated in or in relation to these Terms of Use are, unless otherwise stated, are exclusive of any taxes due and payable by the Partner.

7.3 The Provider may elect to vary any element of the Payment Fees by giving to the Partner not less than thirty (30) days' written notice of the variation after the expiry of the Minimum Term.

7.4 The Provider shall pay the Partner Fees annually on the anniversary of the Effective Date.

8  Confidentiality Obligations

8.1  The Provider must:

  • (a)  keep the Partner Confidential Information strictly confidential;
  • (b)  not disclose the Partner Confidential Information to any person without the Partner's prior written consent, and then only under conditions of confidentiality no less onerous than those contained in these Terms of Use;
  • (c)  use the same degree of care to protect the confidentiality of the Partner Confidential Information as the Provider uses to protect the Provider's own confidential information of a similar nature, being at least a reasonable degree of care;
  • (d)  act in good faith at all time in relation to the Partner Confidential Information; and
  • (e)  not use any of the Partner Confidential Information for any purpose other than providing KEEP to the Partner.

8.2  The Partner must:

  • (a)  keep the Provider Confidential Information strictly confidential;
  • (b)  not disclose the Provider Confidential Information to any person without the Provider's prior written consent, and then only under conditions of confidentiality no less onerous than those contained in these Terms of Use;
  • (c)  use the same degree of care to protect the confidentiality of the Provider Confidential Information as the Partner uses to protect the Partner's own confidential information of a similar nature, being at least a reasonable degree of care;
  • (d)  act in good faith at all time in relation to the Provider Confidential Information; and
  • (e)  not use any of the Provider Confidential Information for any purpose other than using KEEP from the Provider.

8.3  Notwithstanding Clauses 8.1 and 8.2, a party's Confidential Information may be disclosed by the other party to that other party's officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Confidential Information for the performance of their work with respect to the Agreement and who are bound by a written agreement or professional obligation to protect the confidentiality of the Confidential Information.

8.4  No obligations are imposed by this Clause 8 with respect to a party's Confidential Information if that Confidential Information: (a)  is known to the other party before disclosure under these Terms of Use and is not subject to any other obligation of confidentiality; (b)  is or becomes publicly known through no act of the other party; or (c)  is obtained by the other party from a third party in circumstances where the other party has no reason to believe that there has been a breach of an obligation of confidentiality.

8.5  The restrictions in this Clause 8 do not apply if any Confidential Information is requested by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of either party on any recognised stock exchange.

8.6  Upon termination of the Agreement, each party must immediately cease to access the other party's Confidential Information.

8.7  Following termination of the Agreement, and within 5 Business Days following the date of termination of the Agreement, the relevant party must destroy or return to the other party (at the other party's option) all media containing the other party's Confidential Information and must irrevocably delete the other party's Confidential Information from its computer systems.

8.8  The provisions of this Clause 8 shall remain in force indefinitely following the termination of the Agreement.

9  Publicity

9.1  Neither party may make any public disclosures relating to the Agreement or the subject matter of the Agreement (including disclosures in press releases, public announcements and marketing materials) without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed.

9.2  Nothing in this Clause 9 shall be construed as limiting the obligations of the parties under Clause 8.

10  Data Protection

10.1  Each party shall comply with the Data Protection Laws with respect to the processing of the Partner Personal Data.

10.2  The Partner warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under the Agreement.

10.3  The Provider shall only process the Partner Personal Data during the Term and for not more than 30 days following the end of the Term, subject to the other provisions of this Clause 10.

10.4  The Provider shall only process the Partner Personal Data on the documented instructions of the Partner.

10.5  Notwithstanding any other provision of these Terms of Use, the Provider may process the Partner Personal Data if and to the extent that the Provider is required to do so by applicable law. In such a case, the Provider shall inform the Partner of the legal requirement before processing, unless that law prohibits such information on grounds of public interest.

10.6  The Provider shall ensure that persons authorised to process the Partner Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

10.7  The Provider and the Partner shall each implement appropriate technical and organisational measures to ensure an appropriate level of security for the Partner Personal Data.

10.8  The Provider must not engage any third party to process the Partner Personal Data without authorization from the Partner.

10.9  The Provider shall assist the Partner in ensuring compliance with the obligations relating to the security of processing of personal data.

10.10  If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under these Terms of Use, then the parties shall use their best endeavours promptly to agree such variations to these Terms of Use as may be necessary to remedy such non-compliance.

11  Warranties

11.1  The Provider warrants to the Partner that:

  • (a)  the Provider has the legal right and authority to enter into the Agreement and to perform its obligations under these Terms of Use;
  • (b)  the Provider will comply with all applicable legal and regulatory requirements applying to the exercise of the Provider's rights and the fulfilment of the Provider's obligations under these Terms of Use; and
  • (c)  the Provider has or has access to all necessary know-how, expertise and experience to perform its obligations under these Terms of Use.

11.2  The Provider warrants to the Partner that:

  • (a)  the Platform and KEEP will conform in all respects with KEEP Specification;
  • (b)  the application of Updates and Upgrades to the Platform by the Provider will be conducted with a reasonable degree of care reflecting good industry practice;
  • (c)  the Platform will be free from viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious software programs; and
  • (e)  the Platform will incorporate security features reflecting the requirements of good industry practice.

11.3  The Provider warrants to the Partner that KEEP, when used by the Partner in accordance with these Terms of Use, will not breach any laws, statutes or regulations applicable under any applicable international law.

11.4  The Provider warrants to the Partner that KEEP, when used by the Partner in accordance with these Terms of Use, will not infringe the Intellectual Property Rights of any person in any jurisdiction and under any applicable law.

11.5  If the Provider reasonably determines, or any third party alleges, that the use of KEEP by the Partner in accordance with these Terms of Use infringes any person's Intellectual Property Rights, the Provider may at its own cost and expense:

  • (a)  modify KEEP in such a way that they no longer infringe the relevant Intellectual Property Rights; or
  • (b)  procure for the Partner the right to access KEEP in accordance with these Terms of Use.

11.6  The Partner warrants to the Provider that it has the legal right and authority to enter into the Agreement and to perform its obligations under these Terms of Use.

11.7  All warranties and representations in respect of the subject matter of the Agreement are expressly set out in these Terms of Use. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.

12  Acknowledgements and warranty limitations

12.1  The Partner acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the provisions of these Terms of Use, the Provider gives no warranty or representation that KEEP will be wholly free from defects, errors and bugs.

12.2  The Partner acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the provisions of these Terms of Use, the Provider gives no warranty or representation that KEEP will be entirely secure.

12.3  The Partner acknowledges that KEEP is designed to be compatible only with the software and those systems specified as compatible in the KEEP Specification; and the Provider does not warrant or represent that KEEP will be compatible with any other software or systems.

12.4  The Partner acknowledges that the Provider will not provide any legal, financial, accountancy or taxation advice under these Terms of Use or in relation to KEEP; and, except to the extent expressly provided otherwise in these Terms of Use, the Provider does not warrant or represent that KEEP or the use of KEEP by the Partner will not give rise to any legal liability on the part of the Partner or any other person.

13  Indemnities

13.1  The Provider shall indemnify and shall keep indemnified the Partner against any liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) arising directly or indirectly from any breach by the Provider of these Terms of Use.

13.2  The Partner must:

  • (a)  upon becoming aware of an actual or potential Provider Indemnity Event, notify the Provider;
  • (b)  provide to the Provider all such assistance as may be reasonably requested by the Provider in relation to the Provider Indemnity Event;
  • (c)  allow the Provider the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Provider Indemnity Event; and
  • (d)  not admit liability to any third party regarding the Provider Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Provider Indemnity Event without the prior written consent of the Provider, without prejudice to the Provider's obligations under Clause 13.1.

13.3  The Partner shall indemnify and shall keep indemnified the Provider against liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) arising directly or indirectly from any breach by the Partner of these Terms of Use.

13.4  The Provider must:

  • (a)  upon becoming aware of an actual or potential Partner Indemnity Event, notify the Partner;
  • (b)  provide to the Partner all such assistance as may be reasonably requested by the Partner in relation to the Partner Indemnity Event;
  • (c)  allow the Partner the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Partner Indemnity Event; and
  • (d)  not admit liability to any third party regarding the Partner Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Partner Indemnity Event without the prior written consent of the Partner, without prejudice to the Partner's obligations under Clause 13.3.

13.5  The indemnity protection set out in this Clause 13 shall be subject to the limitations and exclusions of liability set out in the Agreement.

14  Limitations and exclusions of liability

14.1  Nothing in these Terms of Use will:

  • (a)  limit or exclude any liability for death or personal injury resulting from negligence;
  • (b)  limit or exclude any liability for fraud or fraudulent misrepresentation;
  • (c)  limit any liabilities in any way that is not permitted under applicable law; or
  • (d)  exclude any liabilities that may not be excluded under applicable law.

14.2  The limitations and exclusions of liability set out in this Clause 14 and elsewhere in these Terms of Use:

  • (a)  are subject to Clause 14.1; and
  • (b)  govern all liabilities arising under these Terms of Use or relating to the subject matter of these Terms of Use, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in these Terms of Use.

14.3  Neither party shall be liable to the other party in respect of any losses arising out of a Force Majeure Event.

14.4  Neither party shall be liable to the other party in respect of any loss of profits or anticipated savings.

14.5  Neither party shall be liable to the other party in respect of any loss of revenue or income.

14.6  Neither party shall be liable to the other party in respect of any loss of use or production.

14.7  Neither party shall be liable to the other party in respect of any loss of business, contracts or opportunities.

14.8  Neither party shall be liable to the other party in respect of any loss or corruption of any data, database or software;

14.9  Neither party shall be liable to the other party in respect of any special, indirect or consequential loss or damage.

15  Force Majeure Event

15.1  If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.

15.2  A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under the Agreement, must:

  • (a)  promptly notify the other; and
  • (b)  inform the other of the period for which it is estimated that such failure or delay will continue.

15.3  A party whose performance of its obligations under the Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.

16  Termination

16.1  Either party may terminate the Agreement by giving to the other party not less than 30 days' written notice of termination after the end of the Minimum Term.

16.2  Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:

  • (a)  the other party commits any breach of the Agreement, and the breach cannot be remedied;
  • (b)  the other party commits a breach of the Agreement, and the breach can be remedied but the other party fails to remedy the breach within the period of 30 days following the giving of a written notice to the other party requiring the breach to be remedied; or
  • (c)  the other party persistently breaches the Agreement.

16.3  Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:

  • (a)  the other party:
    • (i)  is dissolved;
    • (ii)  is or becomes insolvent or is declared insolvent; or
    • (iii)  convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
  • (b)  an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
  • (c)  an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than a solvent company re-organization where the resulting entity will assume all the obligations of the other party under the Agreement); or
  • (d)  if that other party is an individual:
    • (i)  that other party dies;
    • (ii)  due to illness or incapacity, that other party becomes incapable of managing his or her own affairs; or
    • (iii)  that other party is the subject of a bankruptcy petition or order.

17  Effects of termination

17.1  Upon the termination of the Agreement, all of the provisions of these Terms of Use shall cease to have effect, save that the following provisions of these Terms of Use shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 3.10, 8, 9, 10.1, 10.3, 10.4, 10.5, 10.6, 10.7, 10.8, 10.9, 10.10, 13, 14, 17, 19, 20, 21, 22, 23, 24, 25 and 26.

17.2  Except to the extent that these Terms of Use expressly provides otherwise, the termination of the Agreement shall not affect the rights of either party.

18  Notices

18.1  Any notice given under these Terms of Use must be in writing, whether or not described as "written notice" in these Terms of Use.

18.2  Any notice given by the Partner to the Provider under these Terms of Use must be:

  • (a)  delivered personally; or
  • (b)  sent by courier; or
  • (c)  sent by post by recorded signed-for delivery; or
  • (d)  sent by fax; or
  • (e)  sent by email; or
  • (f)  submitted using the Provider's online contact facility.

18.3  Any notice given by the Provider to the Partner under these Terms of Use must be:

  • (a)  delivered personally; or
  • (b)  sent by courier; or
  • (c)  sent by post by recorded signed-for delivery; or
  • (d)  sent by fax; or
  • (e)  sent by email.

18.4  The addressee and contact details set out in the Agreement may be updated online from time to time by a party or by giving written notice of the update to the other party in accordance with this Clause 18.

18.5  A party receiving from the other party a notice by email must acknowledge receipt by email promptly, and in any event within 2 Business Days following receipt of the notice.

18.6  A notice will be deemed to have been received at the relevant time set out below or, where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below:

  • (a)  in the case of notices delivered personally, upon delivery;
  • (b)  in the case of notices sent by courier, upon delivery;
  • (c)  in the case of notices sent by post, 7 days after posting;
  • (d)  in the case of notices sent by fax, at the time of the transmission of the fax (providing the sending party retains written evidence of the transmission);
  • (e)  in the case of notices sent by email, at the time of the sending of an acknowledgement of receipt by the receiving party; and
  • (f)  in the case of notices submitted using an online contact facility, upon the submission of the contact form.

19  Assignment

19.1  The Partner must not assign, transfer or otherwise deal with the Partner's contractual rights and/or obligations under these Terms of Use without the prior written consent of the Provider, such consent not to be unreasonably withheld or delayed, providing that the Partner may assign the entirety of its rights and obligations under these Terms of Use to any Affiliate of the Partner or to any successor to all or a substantial part of the business of the Partner from time to time.

20  No waivers

20.1  No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.

20.2  No waiver of any breach of any provision of the Agreement shall be construed as a further or continuing waiver of any other breach of that provision or any breach of any other provision of the Agreement.

21  Severability

21.1  If a provision of these Terms of Use is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.

21.2  If any unlawful and/or unenforceable provision of these Terms of Use would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.

22  Third party rights

22.1  The Agreement is for the benefit of the parties and is not intended to benefit or be enforceable by any third party.

22.2  The exercise of the parties' rights under the Agreement is not subject to the consent of any third party.

23  Variation

23.1  The Agreement may not be varied except by means of a written document agreed by both parties.

24  Entire agreement

24.1  Your Details and the main body of these Terms of Use shall constitute the entire agreement between the parties in relation to the subject matter of the Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.

24.2  Neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Agreement.

24.3  The provisions of this Clause 24 are subject to Clause 14.1.

25  Law and jurisdiction

25.1  These Terms of Use shall be governed by and construed in accordance with Australian law.

25.2  Any disputes relating to the Agreement shall be subject to the courts of Australia.

26  Interpretation

26.1  In these Terms of Use, a reference to a statute or statutory provision includes a reference to:

  • (a)  that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
  • (b)  any subordinate legislation made under that statute or statutory provision.

26.2  The clause headings do not affect the interpretation of these Terms of Use.

26.3  References in these Terms of Use to "calendar months" are to the twelve (12) named periods (January, February and so on) into which a year is divided.

26.4  In these Terms of Use, general words shall not be given a restrictive interpretation by being preceded or followed by words indicating a particular class of acts, matters or things.







1.0.0