ASENDIUM PLATFORM – USER AGREEMENT
1. FORMING A BINDING AGREEMENT

(a) This agreement is between you (“Client” or “you”) and ASENDIUM PTY LTD (ABN 58 633 808 027) (“Asendium”) and sets out the terms of the licence that Asendium is granting to enable you to use the Asendium software platform to manage your regulatory obligations by generating Financial Advice Documents.

(b) In order to use the and accept this Agreement by clicking on the “I have read and accept” checkbox.

(c) If you are registering for an Asendium client account in order to use the behalf of a company or another organisation, then you are agreeing to this Agreement for that company or organisation and promising to Asendium that you have the authority to bind that company or organisation to this Agreement (and, in which case, the terms “you” and “your” or “Client” will refer to that company or organisation).

(d) By accepting the Terms of Use you are also promising to Asendium that all of the information that you have provided about yourself and your company or organisation is true and correct. You understand that in giving you access to the Asendium software platform, Asendium is relying on this information.

(e) You agree that your use of the Asendium software platform is subject to this Agreement. If you do not agree to this Agreement, you must not use the Asendium software platform.

(f) Any use of the Asendium software platform will constitute evidence that you have read, understood and agreed to be bound by this Agreement.

(g) Asendium reserves the right to amend, vary, modify and/or replace this Agreement at any time, and from time to time, and such amendment, variation, modification and/or replacement shall be effective immediately upon posting to the Asendium Website. Your continued use of the Asendium software platform shall be deemed to be your acceptance of any amendments to this Agreement.

2. Definitions and Interpretation
2.1 Definitions

In this Agreement, unless the context requires otherwise:

Account Manager” means the person that you designated when you opened or updated your Asendium Client Account as the person who will manage your Asendium Client Account and who will be solely responsible for the level of access to the Asendium software platform granted to your other Users.

Affiliate” means, in relation to any entity, any other entity that:

(a) is a Related Body Corporate of the first mentioned entity; or

(b) Controls, is Controlled by, or is under common Control with the first mentioned entity.

Agreement” means the agreement formed between you and Asendium when you or one of your personnel clicked on the “I have read and accept” checkbox to accept and agree to this Agreement.

Asendium Client Account” means the account that you opened with Asendium to enable you to use the Asendium software platform;

Asendium Software Platform” means the cloud based software platform developed by Asendium which enables you to manage your regulatory obligations by generating Financial Advice Documents and includes without limitation any customised version of that cloud based software platform that Asendium may provide to you.

Asendium Website” means the URL www.asendium.com (or any other domain or sub-domain used by Asendium from time-to-time);

Business Day” means a day that is not a Saturday, Sunday or is the Easter public holiday, Christmas Day, Boxing Day or New Year’s Day.

Claims” includes any claim, notice, demand, costs (including legal costs and expenses), debts, dues, liabilities, damages, losses, action, proceeding, litigation, investigation or judgment, however it arises and whether it is present or future, fixed or unascertained, actual or contingent.

Confidential Information” means all of the Information that is marked as confidential at the time it was provided or is of such a commercial and sensitive nature that the Recipient would understand that at the time that it is provided that it is confidential to the other party (and in your case includes personal information relating to your clients that you or your users enter into the Asendium software platform), other than any part of that Information that:

(a) is or becomes part of the public domain, otherwise than through a breach of confidentiality by the Recipient or any person to whom the Recipient has disclosed that Information; or

(b) the Recipient can prove by written records was developed or created by the Recipient prior to the Recipient receiving the Information from the Disclosing Party and independently of the Disclosing Party; or

(c) was received by the Recipient from a third party legally entitled to possess the Information and provide it to the Recipient.

Content” means any information, guides, assessments and other tools or materials that are provided on the Asendium software platform.

Control” has the meaning given to that term by section 50AA of the Corporations Act and “Controlled” has the same meaning.

Controller” means, in relation to a person’s property a receiver or receiver and manager of that property; or anyone else who (whether or not as agent for the person) is in possession or has control of that property to enforce an Encumbrance.

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

Disclosing Party” means a party that has disclosed Information to the other party or to whom the Information relates.

Documentation” means the documentation contained on the Asendium software platform which describe the specifications for the Asendium software platform.

Encumbrance” means any mortgage, pledge, lien, option, hypothecation, charge (whether fixed or floating) or other form of security interest or interest in the nature of a security interest whatsoever.

Event of Default” means any of the following events:

(a) a party breaching any material provision of this Agreement and failing to remedy the breach within 30 days after receiving notice requiring it to do so; or where that breach is incapable of remedy; or

(b) an Insolvency Event occurring in relation to a party.

Financial Advice Documents” means the financial advice documents that are able to be generated by the Asendium software platform, being file notes, fact finds, strategy papers and statements of advice.

Information” means:

(a) all information regardless of form (including information in relation to Intellectual Property Rights) that relates to the Disclosing Party, its businesses or affairs, and that, either before or after the date of this Agreement is disclosed directly or indirectly by any means to the Recipient by the Disclosing Party or any of its Relevant Persons or suppliers; or otherwise comes to the knowledge of the Recipient;

(b) any notes, reports and documents which contain or refer to the information described in clause (a); and

(c) in respect of Asendium’s information, includes (but is not limited to) any information in respect of the business of Asendium or any of its Relevant Persons, including all information in respect of the Asendium software platform and all associated Intellectual Property Rights.

Insolvency Event” means the occurrence of any of the following events in relation to any person:

(a) the person becomes insolvent as defined in the Corporations Act, states that it is insolvent or is presumed to be insolvent under an applicable law;

(b) the person is wound up, dissolved or declared bankrupt;

(c) a liquidator, provisional liquidator, Controller, administrator, trustee for creditors, trustee in bankruptcy or other similar person is appointed to, or takes possession or control of, any or all of the person’s assets or undertaking;

(d) the person enters into or becomes subject to any arrangement or composition with one or more of its creditors or any assignment for the benefit of one or more of its creditors; or

(e) anything occurs under the law of any jurisdiction which has a substantially similar effect to any of the other paragraphs of this definition,

unless the event occurs as part of a solvent reconstruction, amalgamation, merger or consolidation that has been approved in writing by the other party to this Agreement.

Intellectual Property Rights” means all intellectual and industrial property rights of whatever nature (whether or not registered or registrable) including, but not limited to:

(a) patents, copyrights, designs, trademarks, trade secrets, drawings, inventions, discoveries, research developments;

(b) any application or right to apply for registration of any of the rights in paragraph (a) and all renewals and extensions of those rights; and

(c) the right to have Confidential Information kept confidential.

Loss” means any debt or other monetary liability or penalty, fine or payment or any damages, losses, costs, charges, outgoings or expenses of whatever description.

Market Information” means statistical and market trend information gathered from the Asendium software platform in an aggregated and anonymised format.

Platform Fees” means the fees specified on the Asendium software platform which you are required to pay to access the Asendium software platform, being the fees that you committed to pay to Asendium when you registered for or updated your Asendium Client Account.

Purpose” means to enable you to manage your regulatory obligations by generating Financial Advice Documents.

Recipient” means a party that has received information from another party or that otherwise comes into possession of information relating to another party.

Related Body Corporate” has the meaning given to that term by section 9 of the Corporations Act.

Relevant Person” means:

(a) in the case of you – each of your Affiliates and each of your or your Affiliates’ officers, directors, employees, contractors, consultants, agents, representatives and includes each User and any party that provides you with Content; and

(b) in the case of Asendium – each Affiliate of Asendium and each of Asendium’s and its Affiliates’ officers, directors, employees, contractors, consultants, agents and representatives.

Service Fees” means the Platform Fees and any Support Fees that you committed to pay to Asendium when you registered for or updated your Asendium Client Account.

Support Fees” means any fees that you committed to pay when you registered for or updated your Asendium Client Account in order to receive support from Asendium such as in customising certain aspects of the presentation of the Financial Advice Documents.

Term” means the period in respect of which you have paid the Platform Fees when you registered for or updated your Asendium Client Account.

Terms of Use” means the terms and conditions governing the use by each of your Users of the Asendium software platform.

Third Party Products” means services, products and/or Content provided by third parties.

User” means a member of your staff to whom you give access to the Asendium software platform pursuant to this Agreement.

2.2 Words and expressions

In this Agreement, unless the context requires otherwise:

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

(b) where a word or phrase is defined, its other grammatical forms have a corresponding meaning

(c) a reference to a party, clause, paragraph, schedule or annexure is a reference to a party, clause, paragraph, schedule or annexure to or of this Agreement;

(d) a reference to this Agreement includes any schedules or annexures;

(e) headings are for convenience and do not affect interpretation;

(f) a reference to any document or agreement includes a reference to that document or agreement as amended, novated, supplemented, varied or replaced from time to time;

(g) a reference to a party includes its executors, administrators, successors, substitutes (including persons taking by novation) and permitted assigns;

(h) words and expressions denoting natural persons include bodies corporate, partnerships, associations, firms, governments and governmental authorities and agencies and vice versa;

(i) a reference to any legislation or to any provision of any legislation includes:

(i) any modification or re-enactment of the legislation;

(ii) any legislative provision substituted for, and all legislation, statutory instruments and regulations issued under, the legislation or provision; and

(iii) where relevant, corresponding legislation in any Australian State or Territory;

(j) no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this document or any part of it; and

(k) the words “including”, “for example”, “such as” or other similar expressions (in any form) are not words of limitation.

2.3 Other rules of interpretation

In this Agreement, unless expressly provided otherwise:

(a) (Business Days) if the day on or by which any act, matter or thing is to be done is a day other than a Business Day, the act, matter or thing will be done on the next Business Day; and any money falls due for payment on a date other than a Business Day, that money will be paid on the next Business Day (without interest or any other amount being payable in respect of the intervening period); and

(b) (Inconsistency within document) if a clause of this Agreement is inconsistent with any other agreement, schedule or annexure, this Agreement prevails to the extent of the inconsistency.

3. Access
3.1 Access Rights

(a) In consideration for you paying the Platform Fees in respect of each Term, Asendium grants to you non-exclusive and non-transferable access rights for you to use Asendium software platform in accordance with clause 2 solely for the Purpose and solely for that Term, and on the terms and conditions set out in this Agreement.

(b) You understand and agree that your Account Manager will be solely responsible for the level of access to the Asendium software platform granted to your other Users (within the Account Manager’s scoped remit) and as a result for the extent to which any Financial Advice Documents reports generated by the Asendium software platform are available to be accessed or reviewed by your other Users.

3.2 Suspension of Access

(a) Notwithstanding any other term of this Agreement, Asendium may (and hereby reserves the right to) suspend your access to the Asendium software platform if you or any of your Users commits a material breach of the terms of this Agreement.

(b) Asendium may suspend or limit access to the Asendium software platform from time to time for modification, upgrading or maintenance of the Asendium software platform, by providing you with reasonable notice.

3.3 Your obligations

(a) You hereby unconditionally and irrevocably agree to procure that each User accepts and agrees to comply with the Terms of Use of the Asendium software platform prior to accessing or using the Asendium software platform.

(b) You acknowledge and agree that you will:

(i) be responsible for the accuracy and completion of the payment and contact details that you provide to Asendium;

(ii) ensure that the configuration and outcomes of the Asendium software platform and the Financial Advice Documents that the Asendium software platform is capable of producing meet your requirements;

(iii) ensure that the Asendium software platform is used strictly in accordance with the terms of this Agreement and strictly in compliance with all applicable laws and regulations;

(iv) be liable for any breach of this Agreement or the Terms of Use of the Asendium software platform by any of your Users;

(v) make every reasonable effort to prevent unauthorised access to the Asendium software platform;

(vi) ensure that your network and systems (including the email, web browser and other IT systems available to your Users) comply with the specifications Asendium provides from time to time; and

(vii) comply with and procure that each of your Relevant Persons complies with, any request by Asendium in connection with the Asendium software platform (including your use and access), or otherwise in relation to this Agreement.

3.4 Control of Asendium software platform

You acknowledge and agree that you will not:

(a) use the Asendium software platform for any purpose other than the Purpose;

(b) use the Asendium software platform other than as provided in this Agreement;

(c) make the Asendium software platform available to any person other than to a User;

(d) access or attempt to access the source code of and data (other than your Content) on the Asendium software platform;

(e) copy, reverse engineer, adapt, decompile, vary or modify the Asendium software platform;

(f) use the Asendium software platform to create, train, or improve (directly or indirectly) a substantially similar product or service, including, without limitation, any other content delivery or financial document platform or service;

(g) use the Asendium software platform to undertake any activities in relation to any information or materials which breach any laws or regulations, infringe a third party’s rights, or are contrary to any relevant standard or code;

(h) knowingly transmit to the Asendium software platform or use the Asendium software platform to transmit, any virus or other disabling feature;

(i) dispute Asendium’s right to refuse a User access to the Asendium software platform and will comply with any request given by Asendium in that regard; and

(j) attempt any of the above acts or permit another person to do any of the above acts.

3.5 Availability of Asendium software platform

(a) You understand and acknowledge that the Asendium software platform is provided on an “as is” and “as available” basis. While Asendium will use reasonable endeavours to provide the Asendium software platform to you and your Users, you acknowledge that it may not be continuous or fault-free and may not be available at all times.  Events which are outside Asendium’s reasonable control may also affect the Asendium software platform.  The Asendium software platform may contain bugs, errors or inaccuracies that could cause failures, corruption or loss of data and/or information from your device, any of your User’s devices and from peripherals (including without limitation, servers, computers, tablets and smart phones) connected to your device or to any of your User’s devices.

(b) You assume all risks and costs associated with your use and the use by your Users of the Asendium software platform and any internet access fees, including all data and roaming changes. In addition, Asendium is not obliged to, and may not provide you with any maintenance, technical or other support for the Asendium software platform.

4. Content
4.1 Third Party Products

(a) You acknowledge and agree that the ongoing operation of the Asendium software platform is dependent on third-party services, such as:

(i) database and hosting services;

(ii) email services; and

(iii) analytics services.

(b) You understand that certain components or features of the Asendium software platform may include Third Party Products.

(c) You acknowledge and agree that Asendium:

(i) is not responsible for the availability of any Third Party Products;

(ii) does not endorse or warrant the accuracy of any Third Party Products; and

(iii) shall in no way be liable for any loss or damage you incur or suffer, or allege to have incurred or suffered, either directly or indirectly, as a result of your use and/or reliance upon any Third Party Products.

4.2 Your use of the Asendium software platform

(a) You understand and agree that the Financial Advice Documents generated by the Asendium software platform are prepared based on the manner in which you and your Users choose to respond or fail to respond to the Asendium software platform . You acknowledge and agree that, to the extent permitted by law, Asendium is not liable for the manner in which your Users respond or fail to respond to the Asendium software platform or to the manner in which you or your Users or clients choose to use the Financial Advice Documents generated by the Asendium software platform.

(b) You understand and agree that any data that the Asendium software platform derives from the manner in which you and your Users use the Asendium software platform will be available to Asendium to provide you and your Users with access rights to the Asendium software platform; to use in order to generate Financial Advice Documents; to fix any error in the Asendium software platform; to upgrade, develop or improve the Asendium software platform; or to fix, upgrade, develop or improve Asendium’s other products or services, subject to the applicable provisions of any relevant legislation including, without limitation, privacy legislation.

(c) The Asendium software platform may provide links to other websites or apps. Those links are provided for convenience only and may not remain current or be maintained.  Asendium is not responsible for the content or privacy practices associated with third party service providers, websites or apps.

5. Service fees
5.1 Service fees

(a) You must pay to Asendium the Service Fees as required by the level of access that you designated when opening or updating your Asendium Client Account and for the level of support that you requested from Asendium.

(b) The Service Fees are specified on the Asendium Website and may be changed by Asendium from time to time by specifying the change on the Asendium Website.

(c) You acknowledge and agree that you are not entitled to receive and will not receive any access to the Asendium software platform until all outstanding Platform Fees have been paid.

5.2 Payment terms

Payment of the Service Fees must be made:

(a) by payment by the nominated method to Asendium as agreed with you from time to time; and

(b) in immediately available funds and without set-off, counter claim, condition or, unless required by law, deduction or withholding; and

(c) if not paid by credit card, within 30 days of the date on which you committed to pay those Service Fees.

6. Representations, warranties and liabilities
6.1 Mutual representations and warranties

Each party represents and warrants that:

(a) it is duly incorporated under the laws of the place of its incorporation;

(b) it has full legal capacity and power to own property and carry on its business and enter into and perform its obligations under this Agreement.

(c) it has taken all corporate and other action required and obtained or been granted all consents, approvals, permissions and authorisations, whether internal or external, necessary to enable it to enter into and perform its obligations under this Agreement;

(d) this Agreement constitutes a valid and legally binding obligation of it in accordance with its terms (except to the extent limited by equitable principles and laws affecting creditors’ rights generally); and

(e) the execution, delivery and performance of this Agreement will not contravene any law regulation, order, judgment or decree of any court or government agency which is binding on it or any of its property, any provision of its constitution or equivalent documents, or any agreement, undertaking or instrument which is binding on it or any of its property.

6.2 Asendium warranty

Asendium represents and warrants that the Asendium software platform will operate in accordance with the Documentation and will materially conform to any specifications contained in the Documentation.

6.3 Disclaimer

(a) Except for the express representations and warranties in clauses 1 and 6.2, Asendium disclaims all express or implied representations, warranties, guarantees and conditions with regard to the Asendium software platform, other than any express representations and warranties in the Documentation.

(b) Asendium makes no representations or warranties regarding the suitability, performance, merchantability or fitness for purpose or the results that you (or any of your Relevant Persons) may obtain by using the Asendium software platform other than any express representations and warranties in any Documentation.

(c) You acknowledge and agree that you are solely responsible for the manner in which you respond or fail to respond to the Asendium software platform and for the manner in which you or your Users or clients choose to use the Financial Advice Documents.

(d) You must ensure that the Asendium software platform is suitable and compatible with your technical and operating environment (including any change in such environment).

(e) Asendium will not be liable if you are unable to use the Asendium software platform due to any incompatibility or fault or incorrect configuration of your equipment or an interference, network congestion or outages on the network connecting you with the Asendium software platform.

(f) You acknowledge and agree that Asendium does not control the transfer of data over communications facilities.

6.4 Limitation of liability

(a) To the maximum extent permitted by law, Asendium’s maximum liability to you for any breach of this Agreement is limited to having agreed deficiencies in the Asendium software platform rectified or the payment of the cost of having the agreed deficiencies in the Asendium software platform rectified.

(b) If Asendium is unable to rectify the agreed deficiencies in the Asendium software platform, you are entitled to recover the portion of the Platform Fees paid to Asendium for such agreed deficiencies in the Asendium software platform and such refund shall be Asendium’s total maximum liability.

6.5 Exclusion of liability

To the maximum extent permitted by law, Asendium excludes liability for any consequential or indirect loss or damage (including by way of example, loss of profit, loss of opportunity, loss of goodwill, loss of business, damage to reputation, business interruption, loss or corruption of data and loss of privacy of communications) which may or does arise in connection with the Asendium software platform provided under this Agreement or otherwise in connection with this Agreement or any breach of it, or any fraud or wilful misconduct by or on behalf of Asendium and/or any of its Relevant Persons.

6.6 Indemnity

(a) Each Party (“Indemnifying Party”) irrevocably and unconditionally indemnifies and will keep indemnified and hold harmless the other Party (“Indemnified Party”) and each of its Relevant Persons from and against (and must upon demand pay the Indemnified Party and each of its Relevant Persons (as relevant) an amount equal to) all Loss which the Indemnified Party or any of its Relevant Persons suffers or incurs or in connection with a Claim made by any person against the Indemnified Party or any of its Relevant Persons, of any kind, which arise as a direct or indirect result of or in connection with any breach by the Indemnifying Party or any of its Relevant Persons of this Agreement.

(b) In addition, you irrevocably and unconditionally indemnify and will keep indemnified Asendium and hold harmless Asendium and each of its Relevant Persons from and against (and must upon demand pay Asendium and each of its Relevant Persons (as relevant) an amount equal to) all Loss which Asendium or any of its Relevant Persons suffers or incurs or in connection with a Claim made by any person against Asendium or any of its Relevant Persons, of any kind, which arise as a direct or indirect result of or in connection with your failure to use the Asendium software platform in the manner contemplated by this Agreement (including, without limitation, clause 2) or which arise as a direct or indirect result of or in connection with the manner in which you or your Users respond or fail to respond to the Asendium software platform or to the manner in which you choose to use any Financial Advice Documents generated by the Asendium software platform.

7. Survival of Representations and Indemnities
7.1 Representations and warranties

All representations and warranties in this Agreement will survive the execution and delivery of this Agreement, will remain in full force and effect for the term of this Agreement and, are and will be given with the intent that liability under the representations and warranties will not be confined to breaches discovered prior to the date of this Agreement.

7.2 Indemnities

Each indemnity in this Agreement is a continuing obligation; constitutes a separate and independent obligation of the party giving the indemnity from its other obligations under this Agreement; and will survive termination of this Agreement.

8. Intellectual Property
8.1 Intellectual Property rights

You acknowledge and agree that:

(a) Asendium (or its Relevant Persons) owns or licences all of the Intellectual Property Rights in the Asendium software platform, the systems, processes, content and background technology used to provide the Asendium software platform and any data, information or materials related to or arising from the use of the Asendium software platform;

(b) nothing in this Agreement gives you any proprietary right to the Asendium software platform and its associated Intellectual Property Rights; and

(c) all Intellectual Property Rights created by your use (or the use by any of your Relevant Persons) of the Asendium software platform or otherwise in connection with this Agreement will vest and be owned by Asendium (and you hereby assign to Asendium all such existing and future Intellectual Property Rights).

9. Confidentiality
9.1 Asendium’s use of Confidential Information

(a) Asendium may use any Confidential Information owned by or pertaining to you to provide you with access rights; to fix any error in the Asendium software platform; to upgrade, develop or improve the Asendium software platform; or to fix, upgrade, develop or improve Asendium’s other products or services, and Asendium may disclose any such Confidential Information to any third party engaged by Asendium for one of more of those purposes. Asendium will use its reasonable efforts to ensure that such third party complies with obligations of confidence similar to those required by this clause 9.

(b) Subject to clause 1(a), Asendium must keep your Confidential Information confidential and ensure that any such third parties and advisers keep it confidential and must not disclose this information to any person except:

(i) with your prior written consent;

(ii) to the extent required by law; or

(iii) to any advisers who have a need to know the Confidential Information, but only to the extent they have a need to know; and before disclosure, are directed by Asendium to keep the Confidential Information confidential.

9.2 Your use of Confidential Information

You must keep Asendium’s Confidential Information confidential and ensure that your Relevant Persons and your advisers keep it confidential and must not disclose this information to any person except:

(a) with the prior written consent of Asendium;

(b) to the extent required by law; or

(c) to any of your Relevant Persons or your advisers who have a need to know the Confidential Information, but only to the extent they have a need to know; and before disclosure, are directed by you to keep the Confidential Information confidential.

9.3 Deemed breach

A Recipient will be deemed to have breached its obligations under this clause ‎9 if any of its Relevant Persons or advisers commits any act or omission that, if committed by the Recipient, would be a breach of this Agreement.

9.4 Acknowledgment

Each Recipient acknowledges that:

(a) the Disclosing Party may suffer commercial or other loss and damage if the Confidential Information of the Disclosing Party is used by any third party, or disclosed or made available to any third party by the Recipient other than in accordance with this Agreement;

(b) damages may be an inadequate remedy to protect the interests of the Disclosing Party if the Recipient breaches the provisions of this clause 9; and

(c) the Disclosing Party is entitled to seek and obtain injunctive relief or any other remedy, in any court, against the Recipient for breach of this clause 9.

10. Privacy
10.1 Privacy Policy

(a) Asendium maintains a privacy policy in compliance with the provisions of the Privacy Act 1989 (Cth) for data that it collects about you and other users (“Privacy Policy”).

(b) By using the Asendium software platform:

(i) you confirm that you have obtained all necessary consents and agreements from your Users and clients to the collection, processing and use of personal data about them and information about you and your Users and clients from the data that you input into the Asendium software platform which Asendium will use in accordance with the Privacy Policy, which is incorporated into, and forms an integral part of this Agreement; and

(ii) you acknowledge that you accept and agree to be bound by the terms of the Privacy Policy.

(c) You acknowledge that you have read and understood Privacy Policy and agree that all personal information collected by Asendium is subject to the Privacy Policy.

10.2 Location data and cookies

The Asendium software platform may use cookies to improve your experience while using the Asendium software platform, which also send browsing information back to Asendium software platform.  By continuing to use the Asendium software platform, you consent to the use of cookies.

10.3 Non identifying Market Information

Despite anything to the contrary in this Agreement or elsewhere, Asendium may monitor, analyse and compile Market Information. You agree that Asendium may use that Market Information in any way including by making it publicly available, provided that Asendium:

(a) does not contain identifying information; and

(b) is not compiled using a sample size small enough to make the underlying customer data identifiable.

10.4 Rights in Market Information

Asendium owns all right, title and interest in and to the Market Information and all related software, technology, documentation and content provided in connection with the Market Information, including all Intellectual Property Rights in the foregoing.

11. Publicity

You consent to Asendium listing you as a client on Asendium’s website, blogs, social media accounts and in other marketing materials.

12. Force Majeure

Asendium is not liable for any failure to perform or delay in performing its obligations under this Agreement if that failure is due to anything beyond Asendium’s reasonable control.

13. Notices
13.1 Method

All notices, requests, demands, consents, approvals, offers, agreements or other communications (“notices”) given by a party under or in connection with this Agreement must be:

(a) in writing;

(b) signed by a person duly authorised by the sender or, where transmitted by e mail, sent by a person duly authorised by the sender;

(c) directed to the intended recipient’s address (as specified in clause 3 or as varied by any notice); and

(d) hand delivered, sent by prepaid post or transmitted by e mail to that address.

13.2 Receipt

A notice given in accordance with this clause is taken as having been given and received:

(a) if hand delivered, on delivery;

(b) if sent by prepaid post, either:

(i) on the day on which the relevant postal service estimates delivery will occur; or

(ii) on the first day of the period during which the relevant postal service estimates delivery will occur,

(iii) based on the most recent estimate published by the relevant postal service as at the date on which the notice is sent; or

(c) if transmitted by e mail, on transmission,

but if the delivery or transmission is not on a Business Day or is after 5.00PM (recipient’s time) on a Business Day, the notice is taken to be received at 9.00AM (recipient’s time) on the next Business Day.

13.3 Addresses

Unless varied by notice in accordance with this clause ‎13, Asendium’s address is that set out on the Asendium Website and your address is the address provided by you when you created or updated your Asendium Client Account.

13.4 Requirement for written notice

For the avoidance of doubt, the requirement in clause ‎13.1(a) applies to all notices unless expressly excluded and no implication to the contrary is to be drawn from the use of the expressions “written” or “in writing” in relation to some but not all notices.

13.5 Sales tax

Unless otherwise expressly stated, all amounts payable under this Agreement are expressed to be exclusive of added tax, any similar sales tax, value added tax, goods and services tax or any tax that replaces sales taxes. Any tax payable in relation to any such amounts shall be paid in addition to those amounts, provided that a valid invoice is issued by the supplying party in relation to that supply. If any deductions or withholdings are required by law to be made from any amounts payable (other than in relation to income tax liability), the receiving party must promptly increase the sum it pays to the supplying party by the amount necessary to leave the supplying party with an amount equal to the sum it would have received if no such withholdings or deductions had been made.

14. Program support
14.1 Levels of Program Support

(a) When you create or update your Asendium Client Account you will have the option to choose the level of support that you would like to receive.

(b) A separate quote and invoice will be provided in respect of any additional or adhoc Support Fees that you agree to pay for services required outside your purchase.

15. Termination
15.1 Termination

This Agreement will terminate with immediate effect:

(a) by written agreement between the parties;

(b) by Asendium if you fail to pay any outstanding Service Fees by the date on which such Service Fees are due;

(c) at the end of the then current Term unless you renew your Asendium Client Account and pay the Service Fees for the next Term prior to the end of the then current Term;

(d) by either party providing a written notice to the other party if an Event of Default occurs in respect of the other party.

15.2 Effect of termination

(a) You and each of your Users will immediately cease to have access to the Asendium software platform upon termination of this Agreement.

(b) Termination of this Agreement does not affect any accrued rights or remedies of either party.

(c) Upon the termination of this Agreement, Asendium’s obligation to provide you and your Users with access to the Asendium software platform will terminate and you will cease to use any of Asendium’s Confidential Information in any manner whatsoever and will return all Confidential Information to Asendium and will pay to Asendium all amounts due under this Agreement as at the date of termination.

15.3 Survival

This clause ‎‎15 and clauses ‎1, ‎2, ‎6.3,‎6.4, ‎6.5, ‎7, ‎8, ‎9, ‎10, ‎11, ‎16 and ‎17 survive termination of this Agreement.

16. Dispute resolution

(a) If a dispute arises out of or in relation to this Agreement (“Dispute”) no party to the Dispute (“Disputant”) will start court proceedings (except proceedings seeking interlocutory relief) unless it has complied with this clause 16.

(b) A party claiming that a Dispute has arisen must notify each other Disputant in writing giving details of the Dispute and its proposal for a resolution.

(c) For a 45-day period after a notice is given (“Initial Period”) each Disputant must use all reasonable endeavours to resolve the Dispute and a director of each Disputant will meet within the first seven days of that period with that aim.

17. General
17.1 Entire agreement

This Agreement constitutes the entire agreement between the parties in relation to its subject matter. All prior discussions, undertakings, agreements, representations, warranties and indemnities in relation to that subject matter are replaced by this Agreement and have no further effect.

17.2 Paramountcy of Agreement

If this Agreement conflicts with any other document, agreement or arrangement, this Agreement prevails to the extent of the inconsistency.

17.3 Relationship between parties

This Agreement does not create a relationship of employment or partnership between the parties. Other than as expressly contemplated in this Agreement, no party may act or hold itself out as having the authority for another party or any way bind or commit another party to any obligation.

17.4 No merger

The provisions of this Agreement will not merge on completion of any transaction contemplated in this Agreement and, to the extent any provision has not been fulfilled, will remain in force.

17.5 Amendment

This Agreement may not be amended or varied unless the amendment or variation is in writing signed by all parties.

17.6 Assignment

You must not assign, transfer or otherwise deal with this Agreement or any right under this Agreement without the prior written consent of Asendium.

17.7 Severability

Part or all of any provision of this Agreement that is illegal or unenforceable will be severed from this Agreement and will not affect the continued operation of the remaining provisions of this Agreement.

17.8 Waiver

Waiver of any power or right under this Agreement:

(a) must be in writing signed by the party entitled to the benefit of that power or right; and

(b) is effective only to the extent set out in that written waiver.

17.9 Rights, remedies additional

Any rights and remedies that a person may have under this Agreement are in addition to and do not replace or limit any other rights or remedies that the person may have.

17.10 Further assurances

You must do or cause to be done all things necessary or reasonably desirable to give full effect to this Agreement and the transactions contemplated by it (including, but not limited to, the execution of documents).

17.11 Electronic delivery of document

If a party delivers an executed counterpart of this Agreement or any other document executed in connection with it (“Relevant Document”) by electronic means:

(a) the delivery will be deemed to be an effective delivery of an originally executed counterpart; and

(b) the party will still be obliged to deliver an originally executed counterpart, but the failure to do so will not affect the validity or effectiveness of the Relevant Document.

17.12 Governing law and jurisdiction

This Agreement will be governed by and construed in accordance with the laws in force in the State of New South Wales and each party submits to the exclusive jurisdiction of the courts of that State.