RECITALS

Microbe owns all rights in the Product.
The Client wishes to obtain a licence from Microbe for the Authorised Users to use the Product and to obtain web-based access to the Product through a Server hosted by Microbe.
Microbe has agreed to provide the Client with the following in accordance with the terms and conditions of this agreement:
1. a non-transferable, non-exclusive licence to use the Product;
2. web-based access to the Product located on the Server; and
3. various other services incidental to the above,

during the Licence Period and any Renewal Period.

1. AGREEMENT

1.1 This Agreement is made between Microbe Pty Limited ABN 64 108 836 577 (‘Microbe’) and the Client on the date on which the Client’s Microbe Account is created.
1.2 The terms contained in the Client’s Microbe Account and in this agreement form the Agreement between Microbe and the Client.

2. DEFINITIONS AND INTERPRETATION

2.1 Definitions

In this agreement, including the Recitals, the following terms will have the following meanings unless the contrary intention appears:
‘Agreement’ means the agreement comprising the Client Microbe Account details and this agreement.
‘Microbe Account’ means the Microbe online account for the Client containing the Client’s business details.
‘Microbe Service’ means the service provided by Microbe pursuant to which access is provided to the Product via a Server hosted by Microbe.
‘Authorised Users’ means the employees or contractors of the Client as nominated by the Client in their Microbe Account.
‘Business Hours’ means the hours of 9.00am to 5.00pm Monday to Friday local time in Sydney, NSW, Australia, excluding public holidays.
‘Client’ means the party named as such in the Microbe Account.
‘Commencement Date’ means the date the Client creates its Microbe Account online.
‘Documentation’ means the documentation provided online as part of the Service.
‘Fees’ means the fees specified in the Client’s Microbe Account.
‘GST’ has the meaning given in the GST Act. any goods or services tax,
‘GST Act’ means the A New Tax System (Goods and Services Tax) Act 1999.
‘Licence Period’ means one calendar month from the Commencement Date and each month thereafter until termination pursuant to these Terms and Conditions.
‘Location’ means from any computer or mobile device.
‘Maintenance Services’ means the services described in Clause 10.1.
‘party’ or ‘parties’ means a party or the parties to this agreement.
‘Product’ means QuestX as improved or developed from time to time.
‘Product Updates’ means the updates described in Clause 9.1 of this agreement.
‘QuestX’ means the software product developed by Microbe that includes the following functional areas: Participant and Employee Profiles, Quotation, Scheduling, Billing, Claims, Notes, Forms, Documents, Incident Management and Mobile phone applications;
‘Renewal Period’ means each monthly renewal.
‘Server’ means the server or servers located at Microbe’s premises or such other location as is nominated by Microbe from time to time and includes the serving computers, hardware and operating systems necessary to operate and support the Microbe Service.
‘Technical Support’ means the support described in Clause 11.1 of this agreement.

2.2 Interpretation

In this Agreement unless the contrary intention appears:

clause headings have been inserted for convenience only and will not be taken into account in interpreting the Agreement;
words importing the singular will include the plural and vice versa;
words importing natural persons will include firms and corporate bodies or other legal persons and vice versa;
reference to a party to this Agreement includes reference to that party’s successors and assigns; and
references to currency are references to Australian dollars (AUD$).

3. LICENCE & ACCESS SERVICES

3.1 In consideration of the payment of the Fees and any agreed additional fees, Microbe will provide the Client with:

a non-exclusive licence to use the Product and the Documentation;
web-based login access to the Microbe Service;
the uploading of all Product Updates from time to time;
the Maintenance Services; and
the Technical Support,

during the Licence Period and any Renewal Period in accordance with the terms and conditions of this agreement.

4. GRANT OF LICENCE

4.1 Subject to the payment of the Fees, Microbe grants to the Client a non-transferable, non- exclusive licence for the Authorised Users to use the Product and the Documentation during the Licence Period and any Renewal Period in accordance with the terms and conditions of this agreement.

4.2 The Client will:

only allow the Product and the Documentation to be used by the Authorised Users for the purpose of the Client’s business and for no other purpose;
ensure that the Product and the Documentation are protected at all times from misuse, destruction or any forms of unauthorised use;
not allow the Product or the Documentation to be used or accessed by any third party;
not sell, sub-licence, assign or in any other way transfer the Product or the Documentation to any third party nor provide any of the reports, labels or other output of the Product to any third party,

unless specifically authorised by Microbe in writing and any such use will be subject to this agreement and such other terms as may be specified by Microbe in writing.

4.3 Where documentation is provided to the Client, the Client may make such additional copies of the Documentation as the Client reasonably requires for use by the Authorised Users at the Location, provided that such copies will be owned by Microbe and bear notices of Microbe’s ownership of copyright.

4.4 The Client will:

follow all reasonable instructions given by Microbe from time to time with regard to the use of the Product and the Documentation by the Authorised Users; and
permit Microbe, or its agent, at all reasonable times and at Microbe’s expense, to verify that the use of the Product and the Documentation by the Client and the Authorised Users is in accordance with the terms of this agreement.

5. MICROBE SERVICE

5.1 In consideration of the payment of the Fees, Microbe will provide the Microbe Service to the Client during the Licence Period and any Renewal Period in accordance with the terms of this agreement.

5.2 Microbe will provide the Client with the following information and assistance on the Commencement Date or at such other time as agreed between the parties in writing:

all technical specifications required for access to the Microbe Service and use of the Product by the Authorised Users during the Licence Period and any Renewal Period including supported platforms, connectivity and security;
all technical advice and assistance as is reasonably required by the Client to enable the Client to establish its connection to the Microbe Service; and
all usernames and passwords required by the Client to enable access to the Microbe Service by the Authorised Users.

5.3 Microbe reserves the right to make such amendments or modifications to the Microbe Service as required by law or which Microbe, in its sole discretion, decides are in the interest of quality, efficiency and security of the Microbe Service as a whole.

6. USE OF MICROBE SERVICE

6.1 The Client is responsible for obtaining and maintaining all equipment, computer hardware and software and all telecommunications services required by the Client to access and use the Microbe Service and will ensure that all such equipment and services comply with the technical specifications provided by Microbe.

6.2 Microbe reserves the right to give such instructions or directions to the Client concerning access to, and use of, the Microbe Service by the Authorised Users as required by law or which Microbe, in its sole discretion, decides are in the interest of quality, efficient and security of the Microbe Service as a whole.

6.3 The Client must:

comply with all reasonable directions regarding access to, and use of, the Microbe Service provided to the Client from time to time by Microbe including any procedures imposed by Microbe to prevent unauthorised access to the Microbe Service; and
permit Microbe, or its agent, at all reasonable times, and at Microbe’s expense, to verify that the Client’s use of the Microbe Service is within the terms of this agreement.

6.4 The Client must take all reasonable precautions to ensure the security of access to the Microbe Service at the Location and must not, under any circumstances, allow any third party or any person other than as Authorised User to access or use the Product or the Microbe Service for any purpose without the prior written consent of Microbe.

6.5 The Client agrees to inform Microbe immediately if it becomes aware of any unauthorised use of the Product or the Microbe Service by any person.

6.6 The Client agrees and acknowledges that the Client is responsible for the Microbe plan level selected (if applicable) and all users added to their account and any additional fees that may be payable as a result of their plan level or from adding users to their account.

6.7 The Client agrees and acknowledges that the Client is responsible for the level of system access that is assigned to all users in their account.

7. AVAILABILITY OF MICROBE SERVICE

7.1 Microbe will use its best endeavours to:

maintain the reliability and efficiency of the Microbe Service subject to:
1. scheduled downtime for Maintenance Services or other interruptions to service specified in Clause 8.1; and
2. unscheduled interruptions to the availability of the Microbe Service due to factors beyond the control of Microbe including any actions of the Client or third parties, including telecommunications providers.

7.2 The Client will communicate any difficulties encountered with the Microbe Service to Microbe as soon as is reasonably practicable following detection.

7.3 The Client acknowledges that the speed of response from the Microbe Service is dependent on the Client’s internal connection and performance of the Microbe Service may be affected by such external factors as speed of connection and infrastructure bandwidth from the Client’s equipment to the Server and the number of users on the connection.

7.4 Microbe takes no responsibility for any delay, malfunction, non-performance or other degradation of the Microbe Service caused by or resulting from any alteration, modifications or amendments to the Microbe Service requested by the Client.

7.5 In the event of total systems failure resulting in the disruption of service to the Internet from the Server, Microbe will endeavour to repair and reinstate the Microbe Service within twenty four (24) hours of detection depending on the severity of the failure.

8. SUSPENSION OF ACCESS

8.1 Subject to Clause 8.2, Microbe may suspend access to the Microbe Service:

to carry out the Maintenance Services;
to carry out modifications or updates to the Microbe Service, including the uploading of Product Updates;
to preserve data and integrity;
in the event of a security breach; or
if the Server malfunctions.

8.2 Microbe also reserves the right to terminate or suspend access to the Microbe Service to the Client indefinitely and without refund or compensation in the event that the Client uses the Microbe Service, or appears to Microbe to be intending to use the Microbe Service, in a manner reasonably deemed inappropriate by Microbe or which breaches the terms of this agreement.

8.3 Suspension of access to the Microbe Service will continue until the Maintenance Services, modifications or updates are carried out, the problem or breach is rectified, or until otherwise agreed in writing between the parties.

8.4 Microbe will not be liable to the Client, its officers, employees, contractors or agents or any third party whatsoever as a result of taking the action referred to in this Clause 8 where such action is taken on a view which is formed on a reasonable basis by Microbe.

9. PRODUCT UPDATES

9.1 Microbe may, in its sole discretion, make enhancements, updates or new releases of the Product available through the Microbe Service from time to time in order to, among other things, enhance or improve the functionality or operation of the Product or comply with legislative requirements (‘Product Updates’).

9.2 Microbe will upload any Product Updates onto the Server for access and use by the Client through the Microbe Service as soon as reasonably practicable following the creation and general release of such Product Updates by Microbe.

9.3 The Client acknowledges that additional downtime for the Microbe Service over and above the levels specified in Clauses 7 and 8 of this agreement may apply in the event that Microbe is required to upload Product Updates.

9.4 The Product Updates will be provided to the Client through the Microbe Service free of charge subject to all Fees having been fully paid by the Client for the Licence Period or current Renewal Period as the case may be.

9.5 Use of the Product Updates by the Client through the Microbe Service will be subject to the same terms and conditions as use of the Product under this agreement.

10. MAINTENANCE SERVICES

10.1 Microbe will perform such routine maintenance services as it considers necessary to ensure the proper functioning of the Microbe Service during the Licence Period and any Renewal Period including:

the operation and general maintenance of the Server;
reviewing the Product and the Microbe Service on a regular basis and applying Product Updates where appropriate; and
performing regular security and maintenance checks for evidence of security breaches, software malfunction and resource limit warnings.

10.2 The Client acknowledges that it is solely responsible for the support and maintenance of any computer hardware and non-Microbe software operated by the Client.

11. SUPPORT

11.1 Microbe will provide the Authorised Users with basic technical support in relation to the Product and the Microbe Service during the Licence Period and any Renewal Period (‘Technical Support’).

11.2 The Technical Support is available to the Authorised Users by:

telephoning Microbe during Business Hours; or
logging enquiries through the Microbe website located at questx.com.au or e-mailing support@microbe.com.au upon receipt of which, Microbe will use its best endeavours to provide a response to the Client within two (2) Business Days.

11.3 When reporting faults to Microbe, the Authorised Users must provide an accurate description of the problems encountered including error messages and an accurate impact of the problem in order to facilitate the necessary corrective action by Microbe.

12. ADDITIONAL SERVICES

12.1 The Client may, from time to time, request in writing that Microbe provide the Client with other services in relation to the Product or the Microbe Service which may be offered by Microbe including, without limitation, auditing, data entry, training in the use of the Product or general IT services in relation to the Product or the Microbe Service (‘Additional Services’).

12.2 Any provision of Additional Services by Microbe to the Client will be at Microbe’s sole discretion and subject to a separate written agreement being entered into between the parties in relation to the provision of the Additional Services and the fees payable by the Client to Microbe.

12.3 Microbe reserves the right to take payment for any Additional Services by way of the credit card details provided by the client for use with their Microbe account.

13. PAYMENT OF FEES

13.1 The Client will pay the Fees and any other fees due and payable to Microbe under this agreement in the manner specified or as otherwise invoiced to the Client by Microbe from time to time.

13.2 The Client acknowledges and agrees that:

the Fees are payable in respect of the use of the Product and the Microbe Service by the Client;
the Fees apply only in respect of the Licence Period; and
in the event that the Licence Period is renewed in accordance with Clause 19.2, Microbe reserves the right to increase the Fees for any Renewal Period and will invoice the Client for payment of the new Fees prior to the commencement of each Renewal Period or as otherwise agreed between the parties in writing.

13.3 Where applicable, GST and any other taxes, duties or levies will be paid by the Client at the then prevailing rate.

13.4 Where payment of any part or the whole of the Fees is to be made before the Client may access the Microbe Service, Microbe may withhold access to the Client until such payments have been made in full.

13.5 If any sum payable under this agreement is in arrears for more than thirty (30) days, Microbe reserves the right to charge interest at the rate of 10% per annum on such overdue sum calculated on a daily basis from the original due date until paid in full.

14. CONFIDENTIAL INFORMATION

14.1 A party shall treat all Confidential Information as confidential and shall not, without the prior written consent of the disclosing party:

disclose or permit the same to be disclosed to any third party (except to the extent required by law, a stock exchange or in connection with legal proceedings relating to this agreement, but only after first notifying the other party to give it an opportunity to protect the Confidential Information) and agree to take all reasonable steps to maintain the confidentiality of the Confidential Information; or
use the Confidential Information for any purpose other than that for which it is given.

14.2 It shall be the responsibility of each party to ensure that:

Confidential Information is only disclosed to those of its officers, employees or contractors in their capacities as such on a strictly need to know basis and have such officers, employees and contractors comply with the obligations of confidentiality imposed upon them by this Clause 14 as if personally bound by such obligations as though parties to this agreement; and
the officers, employees or contractors referred to in Clause 14.2(a) execute such documentation as required by the owner of the Confidential Information acknowledging their obligations of confidentiality, which shall provide that the obligations of confidentiality survive notwithstanding that any of the above mentioned officers, employees or contractors cease to be employed or engaged by the respective parties.

14.3 The confidentiality obligations under this Clause 14 shall survive the expiry or termination of this agreement.

14.4 In this clause 14, ‘Confidential Information’ means the terms of this agreement and any written or oral information of a technical, business or financial nature or which is taken by any provision of this agreement to be Confidential Information, or which the disclosing party makes the receiving party aware is considered by the disclosing party to be confidential and proprietary.

15. INTELLECTUAL PROPERTY RIGHTS

15.1 ‘Intellectual Property Rights’ means:

patents, copyright, circuit layout rights, designs, trade marks and confidential know-how; and
any application or right to apply for any of the rights referred to in paragraph 15.1(a).

15.2 Microbe owns and retains, and the Client acknowledges that Microbe owns and retains all Intellectual Property Rights in:

the Product, the Microbe Service and the Product Updates and any copies thereof including, without limitation, any modifications or improvements to, or customisation of, the Product or the Microbe Service carried out by Microbe, the Client or any third party pursuant to this agreement excluding any third party materials used in the Product; and
the Documentation and any copies thereof.

15.3 Except as otherwise permitted by the Copyright Act 1968 (Cth) or agreed to in writing by Microbe, the Client must not reverse compile, disassemble, remove, release, disclose, reveal, copy, extract, modify or otherwise reverse engineer all or any part of the Product or the Microbe Service in any way for itself or for others or permit such act to be done.

15.4 The Client warrants that it will:

follow all reasonable instructions given by Microbe from time to time regarding Microbe’s Intellectual Property Rights; and
not do anything to diminish the value of, or contest in any way, Microbe’s Intellectual Property Rights.

15.5 The Client agrees that it will inform Microbe immediately if the Client becomes aware that any Intellectual Property Rights of Microbe are being infringed, or may be infringed, by any third party.

15.6 Microbe need not initiate action against infringers and may settle any dispute by means it determines to be effective and in the best interests of Microbe, but where Microbe, in its sole discretion, determines to initiate action against an infringer, the Client will cooperate with Microbe to the greatest extent possible at Microbe’s expense.

16. PRODUCT OPERATION

16.1 While all due care has been taken, Microbe does not warrant that the operation of the Product will be uninterrupted or error free or that any third party components of the Product, will be accurate or error free or that the Product will be compatible with any application, program or software not specifically identified as compatible by Microbe.

16.2 Microbe’s obligation and the Client’s exclusive remedy during the Licence Period and any Renewal Period are limited, in Microbe’s absolute discretion, to:

Microbe, at its own expense, using all reasonable endeavours to rectify any non- conformance of the Product by repair (by way of a patch, work around, correction or otherwise) within a reasonable period of time; or
a refund of the Fees paid if, in Microbe’s reasonable opinion, it is unable to rectify such non-conformance within a reasonable timescale or at an economic cost, whereupon this agreement will terminate.

16.3 The Client acknowledges and accepts that it is the Client’s sole responsibility to ensure that:

the facilities and functions of the Product and the Microbe Service meet the Client’s requirements; and
the Product accessed via the Microbe Service is an appropriate means to assist the Client with its legislative compliance in the Client’s jurisdiction,

and Microbe does not purport to provide any legal, taxation or accountancy advice by providing the Service under this agreement.

16.4 Microbe will not be liable for any failure of the Product accessed via the Microbe Service to provide any function not described in the Documentation or any failure attributable to:

any modification to the Product or the Equipment other than by Microbe;
accident, abuse or misapplication of the Product or the Microbe Service by the Client;
use of the Product or the Microbe Service with other software or equipment without Microbe’s written consent;
use of other than the latest, unaltered current release of the Product as provided by Microbe through the Microbe Service; or
use other than in accordance with this Agreement.

16.5 If, upon investigation, a problem with the Product or the Client’s access to the Microbe Service is determined not to be Microbe’s responsibility, Microbe may invoice the Client immediately for all reasonable costs and expenses incurred by Microbe in the course of or in consequence of such investigation.

17. IMPLIED TERMS

17.1 Subject to Clause 17.2, any condition or warranty which would otherwise be implied in this agreement by law is hereby excluded.

17.2 Where legislation implies into this agreement any condition or warranty which cannot be excluded at law, Microbe’s liability for any breach of such condition or warranty will be limited, at Microbe’s sole discretion to one or more of the following:

if the breach relates to goods:
1. the replacement of the goods or the supply of equivalent goods;
2. the repair of such goods;
3. the payment of the cost of replacing such goods or of acquiring equivalent goods; or
4. the payment of the cost of having the goods repaired, and
if the breach relates to services:
1. the supplying of the services again; or
2. the payment of the cost of having the services supplied again.

18. LIMITATION OF LIABILITY

18.1 The Client acknowledges and agrees that:

the Product and the Microbe Service do not of themselves constitute, and are no substitute for, the Client’s own identification of, and compliance with, applicable laws and regulations in the Client’s jurisdiction;
Microbe cannot and does not provide any warranty regarding the ability of the Product or the Microbe Service to ensure the Client’s compliance with all applicable laws and regulations in the Client’s jurisdiction; and
the Client is entirely responsible for:

its access to, and use of, the Product and the Microbe Service in accordance with the terms of this agreement;
its use of the Product accessed through the Microbe Service including:
1. input of parameters, data or information into the Product;
2. back-up of all data and information used in relation to the Product; and
3. interpretation or use of, or reliance on, any data, information, reports, labels or any other output of the Product,
its identification of, and compliance with, all applicable laws and regulations in the Client’s jurisdiction; and
the consequences of any use of the Product and the Microbe Service by the Client.

18.2 Except in relation to liability which is not excludable at law, Microbe is under no liability to the Client in respect of any loss or damage (including consequential loss or damage) which may be suffered or incurred or which may arise directly or indirectly in respect of the Client’s access to, or use of, the Product and the Microbe Service or any other goods or services supplied pursuant to this agreement including (without limitation) loss of production, loss of or corruption to data, loss of profits or of contracts, loss of operation time and loss of goodwill, or in respect of a failure or omission on the part of Microbe to comply with its obligations under this agreement.

18.3 Without limiting the generality of any other provision of this agreement, Microbe will not be liable to the Client in respect of any loss or damage (including consequential loss or damage) which may be suffered or incurred by the Client or any third party or which may arise directly or indirectly in respect of:

access to, or use of, the Product and the Microbe Service by the Client;
any defect, malfunction, error, loss, delay or breakdown in the transmission, reception, use or storage of information or records obtained by the Client from the Product and the Microbe Service;
any suspension of access to the Product or the Microbe Service by Microbe pursuant to this agreement;
delays in transmission, communications failures or internet access difficulties caused by third party service providers beyond Microbe’s control;
introduction of viruses affecting the functioning of the Microbe Service;
malfunction of third party equipment or software; or
any other act or omission by any third party which affects the ability of the Client to access, or use, the Product or the Microbe Service.

18.4 Subject to Clause 18.5, the Client warrants that it has not relied on any representation made by Microbe which has not been expressly stated in this agreement, or upon any descriptions or specifications contained in any document including catalogues or publicity material produced by Microbe.

18.5 The Client acknowledges that to the extent that Microbe has made any representation which is not otherwise expressly stated in this agreement, the Client has been provided with an opportunity to independently verify the accuracy of that representation.

18.6 The Client will at all times indemnify and hold harmless Microbe and its officers, employees and agents in respect of any third party claim for any injury, loss, damage or expense occasioned by or arising directly or arising directly or indirectly from:

a breach by the Client of its obligations under this agreement; or
any wilful, unlawful or negligent act or omission of the Client.

19. LICENCE PERIOD

19.1 This Agreement will commence on the Commencement Date and roll over on a monthly basis until termination in accordance with this agreement.

20. TERMINATION

20.1 Either party may terminate this Agreement with immediate effect by giving notice to the other party if:

the other party breaches any of its obligations under this agreement capable of remedy and fails to remedy that breach within fourteen (14) days after receiving notice requiring it to do so; or
the other party breaches any of its obligations under this Agreement incapable of remedy; or
any event referred to in Clause 20.2 occurs in relation to the other party.

20.2 Each party will notify the other immediately if:

it ceases to carry on business;
it disposes of the whole or any part of its assets, operations or business other than in the ordinary course of business;
any step is taken to enter into any arrangement between that party and its creditors;
any step is taken by a mortgagee to enter into possession or dispose of the whole or any part of its assets or business; or
any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a liquidator, a provisional liquidator of the whole or any part of its assets or business.

20.3 If for a continuous period of 90 days there are no active Authorised Users of the Client who can be assigned scheduled work under the Product then Microbe may elect to terminate this agreement and delete any data associated with the Client.

20.4 If the Client fails to pay its monthly Fees for two (2) months or more then Microbe may terminate this agreement forthwith.

20.5 Where custom development work has been undertaken for the Client (for avoidance of doubt this includes any adjustments or alterations to the Microbe website or applications) and the Client cancels their Microbe contract within 12 months from the initial invoice date, a termination fee shall apply based on the total implementation time spent multiplied by Microbe’s current hourly rates for development work and such fee shall be due immediately on termination of this agreement.

20.6 Either party may terminate this agreement by giving at least 30 days’ notice to the other party. On termination of this agreement the Client shall be liable to pay all relevant fees incurred up to the final date determined by date of termination plus 30 days.

21. ACTION ON TERMINATION

21.1 Upon the expiry or termination of this Agreement:

the non-exclusive licence granted to the Client to use the Product and the Documentation will immediately terminate;
Microbe may immediately terminate the Client’s connection to the Microbe Service and cease providing all services to the Client under this agreement including without limitation the Product Updates, the Maintenance Services, the Technical Support and the Emergency Support; and
the Client will immediately:
1. cease to access and use the Product and the Microbe Service;
2. return the Documentation and any copies of the Documentation to Microbe or otherwise deal with same in the manner specified by Microbe in writing;
3. cease to use all Intellectual Property Rights of Microbe; and
4. pay all sums owing to Microbe pursuant to this agreement, including, without limitation, the total Fees owing for the current Licence Period or Renewal Period as the case may be and all additional fees agreed to be payable.
Microbe may, at any time after 90 days from termination, delete the Client’s data from the Service.

21.2 Termination of this agreement for any reason will not affect the accrued rights or remedies of either party.

22. CLIENT DATA

22.1 ‘Client Data’ means all electronic data or information that the Client or any Authorised User loads or enters into the Microbe Services and all results from processing such data, including compilations and derivative works of such data or information.

22.2 The Client owns all the Client Data and is solely responsible for the accuracy, integrity, quality, legality, reliability, appropriateness of and copyright permissions of any the Client Data and for adopting procedures to identify and correct errors and omissions in the Client Data. Microbe has no obligation to review the Client Data for accuracy. The Client warrants to Microbe that the Client Data has been collected, processed and provided to Microbe in accordance with applicable laws on the protection of data subjects with regard to the processing of personal data and on the free movement of such data (“ Data Protection Laws” ), and also including laws or regulations that will apply to the transfer of the Client Data by Microbe to any of its affiliates, employees, contractors and business partners located anywhere in the world. The Client consents to Microbe’ s use of the Client Data, including consent for Microbe to move the Client Data from one environment to another located anywhere in the world, as required to provide Services, Support , and that the Client will comply with the Data Protection Laws. The terms “ personal data” and “process” have the meanings (if any) given to them in the applicable Data Protection Laws.

22.3 The Client further acknowledges and warrants the following:

For the purposes of the Agreement, the Client is the data controller;
The Client will collect, use, transfer and otherwise process any personal data collected by or through the Microbe Services in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments, including but not limited to the Data Protection Laws. In addition, the Client acknowledges and warrants that the use of the Microbe Services is in compliance with any laws, enactments, regulations, collective labour agreements, orders, standards and other similar instruments that might be applicable to the Client and that the Client has obtained all necessary approvals, authorizations or other consents, and have performed any registrations, requirements, mandatory procedures, or similar obligations that may be applicable to the Client. In particular, the Client is responsible for providing appropriate information and obtaining any required consent from Authorised Users including notice and consent allowing the Client to own and control all the Client Data that is provided by Authorised Users; and
The Client has provided such information and obtained such consent to any processing of personal data by and through the Microbe Services in accordance with applicable Data Protection Laws.

22.4 Microbe will handle the Client Data only in accordance with this agreement. Microbe may remove or modify the Client Data to comply with the law or this agreement. Each party will exercise reasonable and appropriate measures in the protection of the Client Data and in the prevention of any unauthorized person or entity from gaining access thereto in compliance with this agreement and that party’s reasonable privacy policy. The Client is responsible for verifying that all Authorised Users accessing any the Client Data are eligible to gain access to that the Client Data. Except as stated herein, Microbe has no responsibility for unauthorized access to the Microbe Services. Each party will promptly notify the other if that party has actual knowledge of unauthorized access to and/or use of the Client Data or passwords and use reasonable efforts to take prompt remedial measures to rectify such unauthorized access. The Client is responsible for responding to all access requests, inquiries, or requests to correct the Client Data from Authorised Users or any other party. The Client is responsible for addressing any privacy breach and providing required notifications as required by law or regulation, provided, however, that the Client will not, without Microbe’s prior consent, make any public statement which directly or indirectly refers to Microbe in connection with any privacy breach, access request or correction request. The Client shall obtain all permissions and consents necessary to provide any the Client Data to Microbe in connection with the Microbe Services or Consulting Services.

22.5 The Client hereby agrees that Microbe is reliant on the Client for direction as to the extent to which Microbe is entitled to use and process the personal data through the Microbe Services or Consulting Services. Consequently, Microbe, in its capacity as data processor, will not be liable for any claim brought by a data subject (including Authorised Users) arising from any action or omission by Microbe, to the extent that such action or omission resulted directly from the data controller’ s instructions. As between Microbe and the Client, the Client is solely responsible and liable for any and all the Client Data that the Client or any Authorised User stores, transmits, displays, or otherwise uses in connection with the Microbe Services. Microbe has no responsibility to the Client or to any third party in connection with such the Client Data and, as between Microbe and the Client, the Client is solely responsible for any losses or damage suffered by Microbe in connection with the Client Data. The Client hereby represents and warrants that neither the Client nor any Authorised User will store or otherwise use any the Client Data in connection with the Microbe Services that: (i) violates this agreement; (ii) is defamatory, obscene, abusive, invasive of privacy, illegal or otherwise objectionable; (iii) violates any third party’ s trade secrets, Intellectual Property Rights or other personal or proprietary right; (iv) invades or interferes with the rights of privacy or publicity of any person; or (v) contains a virus, malicious code or any other harmful component.

22.6 Microbe reserves the right, at any time and without notice to the Client, to review, monitor, flag, filter, modify, refuse or remove any or all the Client Data from the Microbe Services which violate the terms of this agreement, but Microbe has no obligation to do so. The Client agrees to immediately remove or modify any the Client Data that violates this agreement or any applicable laws, rules, or regulations, including pursuant to a removal or modification request from Microbe; if the Client does not do so, Microbe may take down, delete or modify such the Client Data. Microbe assumes no liability or responsibility arising from the Client’s or any Authorised User’s activities in connection with the Microbe Services, including, without limitation, any arising from the Client Data that the Client or any Authorised User stores or otherwise uses in connection with the Microbe Services.

22.7 Microbe respects the intellectual property and other proprietary rights of others and has a policy of removing content from the Microbe Services that infringes third party copyrights or other intellectual property rights and suspending the user ID of any user who uses the Microbe Services in violation of copyright law or other laws governing intellectual property rights, and where appropriate, blocking such user’s access to the Microbe Services.

22.8 Without limiting the Client’ s ownership rights in the Client Data, the Client acknowledges and agrees that Microbe shall have the right to utilize data capture, syndication and analysis tools and other similar tools to extract, compile, synthesize and analyse any non-personally and non-Client identifiable data or information resulting from the Client’s use of the Microbe Services (“Statistical Data”). Statistical Data may be collected by Microbe for any lawful business purpose without a duty of accounting to the Client, provided that the Statistical Data is used only in an aggregated form without specifically identifying the source of the Statistical Data.

23. FORCE MAJEURE

23.1 Neither party will be liable to the other for delay or failure to perform its obligations under this agreement if such delay or failure is caused by declaration of war, strikes, acts of God or the public enemy, riots, interference by military authorities, compliance with Government laws and regulations, delays in transit, inability to secure necessary governmental priorities or any fault beyond its reasonable control or without its fault or negligence.

24. DISPUTE RESOLUTION

24.1 In the event of a serious dispute arising between the parties out of or in connection with this agreement (‘Dispute’), either party may issue a ‘Dispute Notice’ to the other party and, if it does so then the parties must use their best endeavours to try to settle such dispute amicably by negotiation within 14 days of the issuance of the Dispute Notice or within any agreed extended period (‘Negotiation Period’).

24.2 If the Dispute cannot be settled within the Negotiation Period, then either party may notify the other within 7 days after the end of the Negotiation Period that it requires that the parties attempt to settle the Dispute by mediation and the parties must proceed to such mediation as soon as reasonably possible. Such mediation will be conducted in Sydney, New South Wales in accordance with The Institute of Arbitrators & Mediators Australia Mediation and Conciliation Rules published by the Institute of Arbitrators and Mediators Australia or any replacement rules from time to time and will be conducted by a mediator independent of the parties or, failing agreement between the parties on such a mediator, by a person appointed by the Chair of LEADR or his or her nominee.

24.3 If the Dispute is not resolved through the procedures set out above the parties will thereafter be free to agree to arbitration within 7 days following mediation or, if they do not so agree, then either party may proceed to litigate the matter.

25. ASSIGNMENT

25.1 The Client may not sub-licence, transfer or assign any of its rights or obligations under this agreement without the prior written consent of Microbe.

26. SUB-CONTRACTING

26.1 Microbe may sub-contract the performance of any or all of its obligations under this agreement.

27. GENERAL

27.1 Severance

If any part of this agreement is deemed unenforceable, then if the provision would not be illegal or unenforceable if a word or words were omitted, that word or those words are severed or in any other case the provision is severed and the rest of this agreement will continue to be legal and enforceable.

27.2 Waiver

The failure of a party at any time to insist on performance of any obligation under this agreement of the other party is not a waiver of its right:

to insist on performance of, or claim damages for breach of, that obligation unless that party acknowledges in writing that the failure is a waiver; and
at any other time to insist on performance of that or any other obligation of the other party under this agreement.

27.3 Notices

Each party notifying or giving notice under this agreement will do so in writing;
1. addressed to the address of the recipient specified in the Client’s Microbe Account, as altered by notice given in accordance with this clause; and
2. hand delivered or sent by prepaid post to that address or sent by email to the other party’s email address as specified in the Client’s Microbe Account.
A notice given in accordance with Clause 26.3(a) is deemed received:
1. if hand delivered, on the date of delivery;
2. if sent by prepaid post, three (3) days after the date of posting if posted within Australia and ten (10) days after the date of posting if posted internationally.

27.4 Variation

Except as otherwise permitted by this agreement, no variation to its terms will be effective unless in writing and signed by both Microbe and the Client.

28. ENTIRE AGREEMENT

28.1 This Agreement is the entire agreement between the parties in relation to the subject matter of this agreement and supersedes any prior agreement, oral or written and any other communications between the parties in relation to the subject matter of this agreement.

29. LEGAL COSTS & STAMP DUTY

29.1 Microbe will pay the costs of preparation of this agreement and stamp duty, if any, payable on this agreement.

30. GOVERNING LAW

30.1 This Agreement shall be governed by the laws of the State of New South Wales and each party agrees to submit to the non-exclusive jurisdiction of the courts of New South Wales.