Permission to access and use this Platform is conditional upon you, (the licensee), agreeing to the terms set out below. This Platform and the services thereon (together the Platform) is only offered to you on condition that you read and accept all the terms of this Agreement and wish to become a licensee of the Platform. Acceptance will bind you and all of your employees and contractors to the terms of the licence with CyberChamber (QLD) Pty Ltd (ACN 655 972 277) (CyberChamber). By clicking “I Accept”, you will be deemed to have accepted the following terms. If you do not wish to accept the terms, you must not click “I Accept” and you may not use the Platform.
1 LICENCE
1.1 Pursuant to this Agreement, the licensee acquires a non-exclusive and non-transferable right to access and use the Platform subject to the terms and conditions set out below.
1.2 This Agreement extends to any accompanying documentation (Documentation). The documentation may not be copied, modified or used in any way not contemplated or expressly authorised by this Agreement.
2 LICENSEE’S OBLIGATIONS
2.1 The licensee undertakes the following obligations:
(a) to not copy, reproduce, translate, adapt, reverse engineer, decompile, vary or modify the Platform without the express consent of CyberChamber, except as expressly authorised by this Agreement or part III division 4A of the Copyright Act 1968 (Cth);
(b) to supervise and control the use of the Platform in accordance with the terms of this Agreement;
(c) to ensure its employees, sub-contractors and other agents who have authorised access to the Platform are made aware of the terms of this Agreement and will fully comply with the terms of this Agreement;
(d) to not provide or otherwise make available the Platform in any form to any person other than those referred to in paragraph 2.1(c) without the written consent of CyberChamber;
(e) to not give access to, lease, assign, licence or sub-licence the Platform in any form to any other person or attempt to do any of these acts; and
(f) to not use the Platform for or in connection with a service bureau operation.
2.2 The licensee is responsible for providing and maintaining its own user access facilities.
2.3 CyberChamber may, without liability to the licensee, immediately suspend all or any part of the Platform and or remove or disable access to the Platform where the licensee is in breach of this Agreement.
3 PLATFORM
3.1 Subject to the terms of this Agreement, CyberChamber will use commercially reasonable efforts to ensure the Platform is functional and available 24 hours a day, seven days a week, except for:
(a) scheduled downtime, or
(b) any unavailability caused by circumstances beyond the reasonable control of CyberChamber, including without limitation, Force Majeure events.
3.2 CyberChamber may configure the Platform and determine the nature and manner of its internal technical support in its discretion.
3.3 The licensee acknowledges that CyberChamber may, with no liability to the licensee, have to perform urgent maintenance in business hours in cases where early symptoms or major faults are detected and urgent preventive maintenance action is required to limit the impact or occurrence of the fault.
3.4 CyberChamber does not warrant that the Platform will be free of defects, run without interruption, be error free, meet the licensee’s expectations, function in combination with the hardware or software products of third parties, or that all program errors will be corrected. In order for a defect in the Platform to be sufficiently material so as to violate this Agreement the defect must cause the Platform – while being used in the manner permitted in this Agreement – to function in a way so divergent from the Documentation that it is unsuitable for the purpose of the Platform.
3.5 You acknowledge that CyberChamber may access and monitor usage of the Platform for the purposes of maintenance of the Platform, including analysis of errors and installation of patches or upgrades and/or to verifying compliance with this Agreement.
3.6 CyberChamber will not be liable for any indirect or consequential loss or damage arising out of a breach of this Agreement or arising out of the supply of a defective Platform.
3.7 Nothing in this Agreement excludes, restricts or modifies any condition, warranty, right or liability implied in this Agreement or protected by law to the extent that such exclusion, restriction or modification would render this Agreement or any provision of this Agreement void, illegal or unenforceable. Subject to the previously mentioned exclusion, restriction and modification, any condition, warranty, right or liability which would otherwise be implied in this Agreement or protected by law is excluded.
3.8 The licensee acknowledges that:
(a) prior to entering into the monthly subscription licence, a reasonable opportunity has been provided, to assess the suitability of the Platform;
(b) at no time prior to entering into this Agreement has it relied on any representation by CyberChamber regarding the Platform which the licensee has not been able to verify, or had the opportunity to verify, independently; and
(c) prior to entering into the monthly subscription licence, it has been given a reasonable opportunity:
(i) to satisfy itself that the Platform corresponds with any representation made by CyberChamber; and
(ii) to examine Platform for any apparent defects,
and that it has availed itself of that opportunity.
3.9 The application of the United Nations Convention on Contracts for the International Sale of Goods (the Vienna Convention) to this Agreement (by virtue of any law relevant to this Agreement) is excluded.
3.10 The parties agree that the Platform is not a service ordinarily acquired for personal, household or domestic purposes.
3.11 Pursuant to section 64A of the Australian Consumer Law:
(a) liability for breach of a guarantee conferred by the Australian Consumer Law other than those conferred by sections 51-53 of that law, is limited to:
(i) in the case of goods, to any one of the following as determined by CyberChamber, the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods or the payment of the cost of having the goods repaired; and
(ii) in the case of services, to any one of the following as determined by CyberChamber, the supplying of the services again or the payment of the cost of having the services supplied again.
4 CLIENT DATA
4.1 Nothing in this Agreement should be construed as a transfer of ownership of the data entered onto the Platform by the licensee (Client Data).
4.2 The licensee agrees that it has sole responsibility for the accuracy, quality, integrity, legal compliance, input, reliability, appropriateness, and rights of use in all Client Data.
4.3 The licensee accepts sole responsibility and liability for:
(a) the Client Data;
(b) placing the Client Data into a format which can be uploaded onto the Platform;
(c) any errors, faults or service disruptions caused (in whole or in part) by the Client Data;
(d) compliance with applicable privacy laws in respect of the Client Data; and
(e) the suitability of purpose of the Client Data;
4.4 The licensee warrants to CyberChamber that:
(a) the licensee owns the Client Data or has the right to upload or otherwise use the Client Data in association with the Platform;
(b) the Client Data is accurate and correct in all respects and does not breach applicable privacy laws; and
(c) the Client Data does not infringe the intellectual property rights of any third party including any copyright, patents, designs or trade marks of any third party.
4.5 The licensee agrees and accepts that any breach of this clause may result in CyberChamber charging fees to correct any defect, or make suitable the Client Data for upload to the Platform.
5 CONFIDENTIALITY
5.1 Neither party will, without the prior written approval of the other party, disclose the other party’s confidential information.
5.2 A party shall not be in breach of clause 5.1 for any uses or disclosures of confidential information which:
(a) are required by law;
(b) are to related companies, advisers, contractors, auditors or insurers; or
(c) the disclosing party can establish, have become public knowledge other than through its wrongful act or omission.
5.3 Each party must implement and maintain effective security measures to prevent unauthorised use and disclosure of the other party’s confidential information whilst it is in the receiving party’s possession or control.
5.4 This clause 5 survives the expiry or termination of this Agreement for any reason.
6 FUNCTIONALITY
6.1 The licensee must fully comply with its legal obligations in respect of use of the Platform including any obligations under the Uniform Civil Procedure Rules, Legal Profession Act 2007, or the Commercial Arbitration Act 2013, or the Federal Court Rules 2021 or any like laws or regulations.
6.2 The licensee accepts and acknowledges that:
(a) the Platform can be used to produce reports (Cost Reports); and
(b) the Platform:
(i) supplements the services of the Licensee;
(ii) does not provide legal services;
(iii) is not a substitute for legal advice;
(iv) should not be relied upon for legal advice; and
(c) the Cost Reports are not a substitute for the services of legal professional or cost assessors.
6.3 The licensee is fully responsible and liable for any reports generated by the Platform and the contents thereof.
6.4 It is agreed that you are responsible for:
(a) the accuracy, validity, legality and quality of any Cost Report that you generate; and
(b) ensuring that before you deliver any Cost Report to any party (including a court or tribunal or other body) you first are satisfied that (as a matter of professional experience, judgement, and opinion) the Cost Report complies with all applicable rules, directions, or similar requirements.
7 COPYRIGHT AND TRADE MARKS
7.1 The licensee acknowledges that the Platform and Documentation are the subject of copyright. The licensee will not during or any time after the expiry or termination of this Agreement permit any act which infringes that copyright and, without limiting the generality of the previously mentioned copyright, the licensee specifically acknowledges that it may not copy the Platform except as otherwise expressly authorised or acknowledged by this Agreement.
7.2 The licensee must not during or at any time after the expiry or termination of this Agreement permit any act which infringes CyberChamber’s trade marks used in connection with the Platform.
7.3 The licensee will indemnify CyberChamber fully against all liabilities, costs and expenses which CyberChamber may incur to a third party as a result of the licensee’s breach of the copyright provisions of this Agreement.
8 LIABILITY
8.1 Without limiting any other provisions of this Agreement, the licensee fully indemnifies CyberChamber and keeps CyberChamber fully indemnified from and against any direct loss, cost or liability (including a claim made by a third party) that has been reasonably incurred by CyberChamber to the extent to which this is directly caused by or contributed to by:
(a) a breach of this Agreement (including without limitation a breach of any warranty contained in it) by the licensee or its employees, sub-contractors and other agents;
(b) misuse of the Platform by its employees, sub-contractors and other agents;
(c) the extent the licensee or its employees, sub-contractors and other agents access to or use of any Platform is contrary to any obligations, including those owed under contract, code of practice or any laws including any privacy laws or regulations;
(d) any infringement by the licensee or its employees, sub-contractors and other agents of the intellectual property rights or a third party; and
(e) any wilful, unlawful or negligent act or omission of the licensee or its employees, sub-contractors and other agents.
8.2 CyberChamber is not liable under this Agreement for circumstances for which it is not responsible, including, without limitation:
(a) force majeure events;
(b) unauthorised modifications to or interference with the Platform, by the licensee, its employees, sub-contractors and other agents or any third parties;
(c) errors in the operation of the Platform by the licensee, employees, sub-contractors and other agents or third parties; or
(d) any virus, malware or other material which may interfere with or disrupt the integrity or performance of the Platform or the system or network from which the Platform is provided.
8.3 To the full extent permitted by law CyberChamber disclaims any and all warranties, express or implied, regarding:
(a) the accuracy, reliability, timeliness or otherwise of any information contained, produced by or referred to on the Platform; and
(b) merchantability or fitness for any particular purpose for any service, feature or product provided, contained, produced by or referred to on the Platform.
9 TERM OF LICENCE
9.1 This Agreement commences upon the licensee’s acceptance of these terms and conditions.
9.2 This Agreement may be terminated in the following circumstances:
(a) with one month’s written notice by CyberChamber to the licensee;
(b) if the licensee is in breach of any term of this Agreement, regardless of whether that breach is cured;
(c) if the licensee, being a corporation, becomes the subject of insolvency proceedings; or
(d) if the licensee, being a firm or partnership, is dissolved.
9.3 Termination pursuant to this clause will not affect any rights or remedies which CyberChamber may have otherwise under this Agreement or at law.
10 OBLIGATIONS ON TERMINATION
10.1 If the licensee requests, and subject to the licensee having discharged all of its obligations under this Agreement, CyberChamber will, at its standard fees at the time, within one (1) month after termination or expiry of this Agreement, provide the licensee with a file containing the most recent backup of the Client Data.
10.2 With the exclusion of material required to be retained by law, the licensee agrees and acknowledges that CyberChamber has no obligation to retain or provide access to any information under this Agreement (including Client Data) and that all such information may be irretrievably deleted by CyberChamber after one (1) month from the date of any suspension, termination or expiry of this Agreement.
11 FORCE MAJEURE
11.1 CyberChamber shall not be liable for any delay or failure to perform its obligations under this Agreement if such delay is due to force majeure. If a delay or failure is caused or anticipated due to force majeure, CyberChamber’ obligations will be suspended. If a delay or failure by CyberChamber to perform its obligations due to Force Majeure exceeds sixty (60) days, CyberChamber may immediately terminate the Agreement on providing notice in writing to the licensee.
11.2 If this Agreement is terminated pursuant to clause 11.1, CyberChamber is not liable to refund any moneys paid by the licensee pursuant to this Agreement.
12 ENTIRE AGREEMENT
12.1 This Agreement constitutes the entire Agreement between the parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing.
13 ASSIGNMENT AND NOVATION
13.1 The benefit of this Agreement shall not be assigned by the licensee without CyberChamber’ written consent. A change in control of or affecting the licensee shall be deemed to be an assignment, with “control” referring to the power to materially influence the licensee decision making or policies.
14 WAIVER AND VARIATION
14.1 No right under this Agreement shall be deemed to be waived except by notice in writing signed by each party. A waiver by CyberChamber will not prejudice its rights in respect of any subsequent breach of the Agreement by the licensee. Any failure by CyberChamber to enforce any clause of this Agreement, or any forbearance, delay or indulgence granted by CyberChamber to the licensee, will not be construed as a waiver of CyberChamber’ rights under this Agreement.
14.2 The provisions of this Agreement will not be varied, except by agreement in writing signed by the parties.
15 DISPUTES
15.1 Any dispute arising in connection with this Agreement which cannot be settled by negotiation between the parties or their representatives shall be submitted to arbitration in accordance with the Arbitration Rules for the time being of the Chartered Institute of Arbitrators. During such arbitration, both parties may be legally represented.
15.2 Nothing in this clause shall prevent a party from seeking urgent equitable relief before an appropriate court.
16 SEVERABILITY
16.1 If any provision of this Agreement is held invalid, unenforceable or illegal for any reason, the Agreement shall remain otherwise in full force apart from such provisions which shall be deemed read down to the extent reasonably appropriate to remove the invalidity, unenforceability or illegality.
17 COSTS
17.1 Each party must pay its own costs and expenses in respect of negotiating, preparing, signing, delivering and performing this Agreement and any other agreement or document entered into or signed under this Agreement.
18 EXECUTION
18.1 Each party represents and warrants to the other that:
(a) it has the power and authority to enter into this Agreement and to perform its obligations under this Agreement, and that the execution of this Agreement has been properly authorised;
(b) the signatory for each party to this Agreement has the ability to create a legal, valid and binding obligation on that party;
(c) this Agreement constitutes a legal, valid and binding obligation on it, enforceable in accordance with its terms by appropriate legal remedy;
(d) it will not represent that it is authorised to act on behalf of the other party, except where expressly authorised to do so in writing; and
(e) it has and will maintain all licences, authorisations, consents, approvals and permits required by applicable laws and regulatory requirements in order to meet its obligations under this Agreement.
19 GOVERNING LAW
19.1 This Agreement will be governed by and construed according to the law of the Queensland, Australia.
