ContinuSys

• LUPARG Pty Ltd ACN 625 479 530 trading as ContinuSys (we/us/our) provides the ContinuSys Solution.
• We have agreed to grant you Access to the ContinuSys Solution and to provide you with the Services on the terms set out in this Agreement.

This Agreement commences on the Acceptance Date and continues until terminated in accordance with clause 11.

3.1 Acceptance

(a) The terms of this Agreement are accepted by you where you:

• Create a ContinuSys account.
• Create an account through any of the applications that we provide that enable you to access all or part of the ContinuSys solution.
• Gain access to the ContinuSys solution after being given a copy of this Agreement.
• Or, otherwise indicate to us, whether directly or indirectly, that you accept this agreement.

(b) Any person that accepts this Agreement on your behalf, represents and warrants to us that:

• They are duly authorised to accept this agreement and to bind you to this agreement.
• To the extent they purport to accept this agreement on your behalf and are not duly authorised to do so, that person will be liable in their personal capacity and will indemnify us against any loss, damage, expense or cost suffered as a result of such purported acceptance.

4.1 Licence

(a) Subject to 4.1(b), we grant you and your Authorised Users with Access to the ContinuSys Solution on a worldwide, revocable, non-exclusive, non-sublicensable and non-transferable basis during the Term (Licence).

(b) The Licence is provided on the following conditions:

• You must, and must also procure that your Authorised Users:
• Only use the ContinuSys solution in accordance with the terms of this Agreement;
• Only use the ContinuSys solution in the manner it was expressly intended;
• Comply with all reasonable and lawful directions that we may give from time to time with respect to your Use of the ContinuSys solution;
• Only use the ContinuSys solution for your own internal business purposes;
• Protect all our Intellectual Property Rights in the ContinuSys solution, the features and the User Documentation from unauthorised access, use or damage;
• Maintain the security of:
• All the ContinuSys Solution login credentials; and
• All Data that is within the ContinuSys Solution and
• Cooperate with us in remediation of any security breach, unauthorised use or misuse of the ContinuSys Solution and promptly report all such matters that you become aware of to us.
• You must, and must also procure that your Authorised Users do not:
• Become involved in any business activity that is unlawful or that we reasonably consider would be likely to adversely impact upon our reputation;
• Upload any Harmful Code to the ContinuSys Solution nor transmit any Harmful Code within it;
• Allow or engage any third party to conduct development work on the ContinuSys Solution or any Features without first obtaining our written consent;
• Interfere or disrupt the operation of the ContinuSys Solution nor attempt to do so;
• Grant Access to the ContinuSys Solution to anyone other than Authorised Users, unless we provide you with our express written consent; and
• Subject to any right under, sections 47B(3), 47C, 47D, 47E or 47F of the Copyright Act, either directly or indirectly, modify, attempt to decompile, cross compile, disassemble, reverse engineer, or use any other means to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the ContinuSys Solution or the Services.

4.2 Services

• We will provide the Services to you in a professional manner with due care, skill and diligence.
• You may at any time request we provide additional services. Any fees associated with the provision of additional or bespoke services will be advised to you following our receipt of your written request. For the avoidance of doubt, we are under no obligation to provide any such services and may agree or refuse to do so at our sole discretion.

4.3 Features

• We will provide you with a list of available Features and an indication of the cost of activating them (if any). If you purchase or install a Feature you are granted a licence to it on the terms contained in sub-clause 4.1.
• From time to time there may be Features that we require you to obtain in order to access the full functionality of the ContinuSys Solution.

4.4 Updates

• We may unilaterally, from time to time:
• Update the ContinuSys Solution or a part of it; and
• Make modifications to the Services, the ContinuSys Solution and the Features (provided such variations do not limit your rights or enjoyment),we will provide Notice of any material changes made, prior to the changes taking effect.
• We will provide you with Notice of New Services created by changes set out in subclause (a). Once the New Services are available, they will be governed by the terms of this Agreement.
• As a consequence of clause 4.4(a) we may need to make reasonable amendments to the provisions of this Agreement. We reserve the right to unilaterally make such changes, along with other minor alterations that do not adversely affect your rights and obligations under this Agreement. Any change made pursuant to this clause will apply immediately upon Notice of the variation being provided to you.

4.5 Receipt of raw data

• The ContinuSys Solution includes a range of Default Connectors that will enable the movement of raw data from various external data sources into the ContinuSys Solution.
• Where you require raw data movement to the ContinuSys Solution from sources that are not compatible with the Default Connectors, you may request that we provide you with assistance to move such raw data. Where it is reasonable and practicable for us to do so, we will provide such assistance. If there are any additional fees associated with us providing assistance, we will notify you prior to providing such assistance.

4.6 Training and User Documentation

• If you or your Authorised Users require training in the operation and Use of the ContinuSys Solution, you may request that we provide you with such training. Training will be provided at our sole discretion and we will notify you of any costs associated with providing any training services.
• Where we have provided User Documentation to assist you regarding your Use of the ContinuSys Solution, you agree that you will comply with the practical and technical information as set out in the User Documentation.

4.7 Support Service levels

• We will use our best endeavours to provide Support Services to you within 10 Business Days of a request being made. Support Services provided under this Agreement do not include any dealing with or responding to issues related to your Systems.
• You may at any time request that we provide additional maintenance and software support services sp (Additional Support Services). The fees for Additional Support Services will be provided by us upon receipt of a written request from you and will be provided pursuant to our then current service level agreement.
• For the avoidance of doubt, we are under no obligation to provide Additional Support Services.

4.8 Back-ups

• It is your responsibility to retain copies of and backup all Data that you upload into the ContinuSys Solution.
• You may request that we provide backup services in addition to the Services that we provide under this Agreement. Any such backup services will be the subject of a separate agreement between us.

4.9 Development

• You may at any time request that we develop New Services, third party integrations or tailored variations to the ContinuSys Solution (Development Request).
• We may in our sole discretion agree to a Development Request. Where we agree to the Development Request, we will provide a scope of work and an indication of fees before commencing.
• You acknowledge that any work that we undertake pursuant to a Development Request will be an additional cost and will be governed by a separate agreement.

5.1 Co-operation

You must provide us with all information and co-operation reasonably necessary to enable us to perform our obligations under this Agreement.

5.2 Account establishment

• You are responsible for ensuring that you and any of your Authorised Users have appropriate in-platform authorisations and that all user accounts are properly created(Account Establishment)
• You acknowledge and agree that the Services provided by us require proper Account Establishment. If this does not occur:
• The Services may not be able to be provided, or if they are provided the Service deliverables may be adversely affected;
• Your Authorised Users may be required to re-establish their accounts before Services are provided; and
• We will not be liable to you for any Loss suffered due to the Services not being provided or the Service deliverables being adversely affected.

5.3 Customisation

• We may provide Authorised Users with the capability to make personalisation’s to their instance of the ContinuSys Solution which may impact upon the Services.
• Where we have provided Authorised Users with the capacity to personalise their instance of the ContinuSys Solution, you acknowledge that you are solely responsible for implementing your own controls and record keeping relating to the changes Authorised Users have made to the ContinuSys Solution and the Services.

5.4 Your Data

• You grant us a licence to use any Data that you provide for any purpose related to our obligations under this Agreement.
• Title to the Data you have provided to us remains with you, and we do not obtain ownership of any Intellectual Property Rights in it. However, you grant to us a perpetual, non- revocable, royalty free license to use any Data that you have provided for the purposes of us fulfilling our obligations under this Agreement, improving and updating our Services, internal research and analytical purposes, as well as any other legitimate business purpose. For the avoidance of doubt, this licence is intended to survive the termination of this Agreement.
• Subject to the other provisions of this clause 5.4, the Data that you have provided that is within the ContinuSys Solution will only be accessible by you and your Authorised Users.

5.5 Systems

You are responsible for obtaining and maintaining all your Systems.

5.6 Experienced Users

You must:

• Ensure enough Experienced Users have been appointed so that an Experienced User will be available for us to contact at all reasonable times;
• Provide your Experienced Users with authority to follow our instructions relating to the delivery of Support Services;
• Require your Experienced Users to:
• Use all reasonable endeavours to troubleshoot and solve problems with the ContinuSys Solution before requesting we provide Support Services; and
• Provide us with cooperation and information that we reasonably require to provide Support Services; and
• Ensure that only Experience Users contact us regarding issues with the ContinuSys Solution.

5.7 Your warranties

You represent, warrant and undertake that:

• You own or have an unrestricted right to use all Data that you provide to us, including the right to grant us the licence to it under clause 5.4;
• All Data that you provide to us and Upload to the ContinuSys Solution is compliant with applicable privacy and data protection laws;
• You have the capacity and authority to enter into and to perform this Agreement; and
• This Agreement is accepted by a duly authorised legal representative of yours and legally binds you.

5.8 Your acknowledgements

You acknowledge and agree that:

• Computer and telecommunications services are not fault free and occasional periods of downtime may occur;
• We may publish your branding and testimonials on any of our promotional material for the purpose of representing that you are a client of ours, provided we comply with our confidentiality obligations contained in clause 9; and
• We may suspend your access to the ContinuSys Solution or any part of it, including that of any Authorised User, without any liability or notice to you immediately where:
• A claim arises alleging that the continued provision of the ContinuSys Solution or any part of it infringes the rights of any person which puts us at risk of exposure to Loss;
• We consider your or an Authorised User has or is likely to breach a provision of this Agreement; or
• Any Fees that are due and payable to us in accordance with the terms of this Agreement have not been paid as and when they fall due.

6.1 General

We will:

• Comply with the Privacy Act 1988 (Cth) and any other applicable privacy Laws in relation to your Data;
• Provide you and your Authorised Users with reasonable notice of scheduled maintenance to the ContinuSys Solution that may impact their Use of the ContinuSys Solution;
• Only access your Systems for purposes approved in advance by you; and
• Ensure that the ContinuSys Solution, the Services and the Features will be provided in accordance with:
• This Agreement; and
• Applicable Laws.

6.2 Data

When processing any Data that you provide, we must:

• Treat your Data as Confidential Information;
• Implement and maintain appropriate and industry best practice technical and organisational measures to protect the Data from any misuse, loss, interference unauthorised access, modification or disclosure;
• If any Data you provide is lost, destroyed, corrupted or altered in connection with the provision of the Services, provide reasonable assistance to you with restoring that Data;
• Notify you as soon as reasonably possible if we become aware of any suspected or actual misuse or loss of, interference with or unauthorised access to, modification of or disclosure of your Data (a Data Breach) or if we are required by Law to disclose any of your Data for any reason;
• Reasonably assist you with respect to remedying or addressing a Data Breach;
• Inform and co-operate with you in the event of any risk regarding the security of your Data; and
• Ensure that our Personnel who have access to your Data comply and agree to comply with this clause 6.2 to the same extent as us.

7.1 General

• Each of us retains all right, title and interest in and to its pre-existing Intellectual Property Rights.
• We own all Intellectual Property Rights in the ContinuSys Solution, the Services and the Features (except to the extent that we use any Features under licence) and nothing in this Agreement affects the Moral Rights in them.
• For the avoidance of doubt nothing in this Agreement prohibits us from using our Intellectual Property Rights to provide the ContinuSys Solution, our Services and the Features to third parties, even if they are the same or substantially the same as those provided to you.

7.2 Improvements

You acknowledge and agree that all Intellectual Property Rights in the variations, additions and alterations (Improvements) to the ContinuSys Solution, its Features and the Services are owned by us, even where suggested or created by you or by any of your Representatives.

8.1 Fees

• In consideration of us granting you a Licence to Access the ContinuSys Solution and delivering the Services, you must pay to us the Fees.
• At the time of creating your ContinuSys Account, we may require you to nominate a payment method that is acceptable to our then current payment processor, for example, we may request:
• A visa, mastercard or american express credit card;
• A bank account we can direct debit from;
• A paypal account we can charge; or
• Any other payment method we publish as acceptable from time to time (altogether Billing Information).
• Your Billing Information will be provided to and retained by the relevant third party payment processor that we are using from time to time.
• Any Fees that are due and owing to us will be charged automatically using the Billing Information linked to your ContinuSys Account.
• You acknowledge and agree that we may reasonably vary the Fees from time to time by providing you with written Notice of the intended Fee revision. Where we vary the Fees, we will provide you with at least thirty (30) days’ Notice of the variation before it takes effect.

8.2 Expenses

Any costs and reasonable out-of-pocket expenses which are necessary to provide Access to the Software or to deliver the Services (Expenses) will be paid or reimbursed (as the case may be) by you where we have received prior written approval from you. We will upon request submit evidence verifying the Expenses that have been incurred.

8.3 Declined Payment

If you fail to make payment of all amounts rightfully due and owing to us in accordance with this Agreement within the time required, we may:

• Immediately suspend both your and your Authorised Users’ Access to the ContinuSys Solution;
• Charge interest on the overdue amount at the Default Rate as from the first day that payment is overdue; and
• Charge you for all costs and expenses that we incur in recovering outstanding Fees from you, including legal fees (on a solicitor and own client basis) and court costs, or Expenses due to be reimbursed, which you must pay upon demand.

We reserve the right to vary this Policy from time to time. Any variations made will be updated on our Website. It is your responsibility to check our Policy periodically to ensure you are aware of any changes made to it.

9.1 Appointment

• You must appoint an Authorised Representative for the Term.
• The Authorised Representative will be responsible for the oversight of this Agreement (Representative’s Purpose).
• You must ensure your Authorised Representative co-operates in a timely manner with any request we make in respect of anything related to this Agreement.

9.2 Authority

You:

• Warrant and agree that the Authorised Representative has full authority to act on your behalf in any way relating to the Representative’s Purpose;
• Acknowledge and agree that we may rely on any written representation, direction or communication made by the Authorised Representative that relates to the Representative’s Purpose, as if the Authorised Representative were you; and
• Must release and hold us harmless from relying upon or following any such direction or representation.

10.1 Recipient must keep Confidential Information confidential

Each party must:

• Keep confidential all Confidential Information;
• Only use Confidential Information for the purpose of providing or receiving (as the case may be) the Services; and
• Procure that its Personnel comply with sub-clauses (a) and (b).

10.2 Disclosure exceptions

The obligations in clause 10.1 do not apply:

• To the extent necessary to enable a party to make any disclosure required by Law;
• To the extent that we are disclosing Confidential Information within our corporate group. However, any recipient entity within our corporate group must comply with the same confidentiality obligations in respect of such information as contained in this Agreement;
• To the extent that we are required to use any Confidential Information in the pursuance of our legitimate business purposes, including evaluating or engaging in any business transaction (for example a sale, merger, restructure or acquisition);
• To the extent necessary to enable a party to perform its obligations under this Agreement;
• Where disclosure is required:
• To the extent necessary to take professional (legal or financial) advice; and
• For any quality assurance or insurance purposes, provided the party receiving the information owes an obligation of confidence at least as strict as the Recipient owes to the Discloser.
• To any disclosure agreed in writing between the parties; or
• In respect of any portion of the Confidential Information which has entered the public domain other than as a result of a breach of this Agreement.

10.3 Restrictions

The parties to one another to not during this Agreement or for a period of 12 months after it is terminated or expires:

• Solicit, canvass, induce or encourage any person who was at any time during the term of this Agreement an employee, a director, contractor or agent of the other party to leave the other party’s engagement, employment or agency; or
• Do anything that would or would be likely to interfere with the relationship between the other party’s clients, customers, contractors, employees, partners or suppliers.

10.4 Acknowledgement of injunctive relief

Each party acknowledges that a breach of this clause 10 may cause the other party irreparable damage for which monetary compensation may not be an adequate remedy. Accordingly, in addition to other remedies that may be available, each party may seek and obtain injunctive relief against such a breach or threatened breach.

11.1 Termination by Notice

• Either party may terminate this Agreement by providing thirty (30) days’ Notice of its intention to terminate to the other party.
• If a party provides Notice in accordance with clause 11.1(a), the Agreement will terminate upon the expiry of the then current billing period.

11.2 Termination for breach

Either party may, without prejudice to its other rights or remedies, terminate this Agreement with immediate effect by written notice to the other party, in the event of:

• Any material breach of the Agreement by the other party which is not remedied within 30 days after the service on the party in default of a written Notice specifying the nature of the breach and requiring that the same be remedied; or
• The other party becoming Insolvent.

11.3 Effect of Agreement ending

Upon termination or expiry of this Agreement:

• You must pay all outstanding Fees, Expenses and other charges due to us under this Agreement up to the date of termination;
• Each party must, subject to clause 10.2, destroy the other party’s Confidential Information received under this Agreement and certify such destruction in writing. However, for the avoidance of doubt, this does not include any Data that we are entitled or required to retain pursuant to the terms of this Agreement; and
• Any accrued rights or liabilities of either party or any provision of this Agreement which is expressly or by implication intended to come into or continue in force on or after such termination will not be affected.

12.1 Your indemnity

• Any breach or default by you or your Authorised Users of this Agreement (including any breach of warranty);
• A negligent act or omission by you or your Authorised Users;
• Your or your Authorised Users’ breach of a third party contract or infringement of a third party’s rights;
• Your failure or the failure of any of your Authorised Users to comply with any Law;
• Our reliance upon or following any direction from, or representation made by, your Authorised Representative; or
• Any Claim made against us by any third party because of an act or omission by you or resulting in any way from the uploading of your Data to the ContinuSys Solution, or the obtaining of Data by the ContinuSys Solution at your direction.

12.2 Our indemnity

• Subject to sub clause 12.2(b) we will indemnify you with respect to any Loss suffered because of any Claim made against you by a third party alleging that the ContinuSys Solution or the Services infringe the Intellectual Property Rights of that third party.
• We will not be liable to you under sub clause 12.2(a) if:
• You do not notify us of the other person’s Claim within 10 Business Days after becoming aware of it;
• Our ability to defend the Claim has been prejudiced by your non-compliance with any of your obligations under this Agreement;
• You do not give us reasonable assistance (based on the circumstances) in defending the Claim; or
• You do not permit us to have control of the defence of the Claim and all related settlement negotiations.

12.3 Exclusion of consequential loss

To the maximum extent permitted by Law, we will not be liable for any Consequential Loss arising in connection with this Agreement, the delivery of our Services or the use of the ContinuSys Solution even if we were appraised of the likelihood of such loss or damage occurring.

12.4 Limit of liability

• Except as expressly provided by this Agreement, the ContinuSys Solution is provided on an “as is” basis without any representation, warranty or guarantee as to quality, condition or fitness for purpose and we do not warrant that the ContinuSys Solution will be free of defect, uninterrupted, accurate, complete, current, stable, bug free, error free or available at any time in respect of its operation.
• Except in relation to liability for an infringement of confidentiality or Intellectual Property Rights, our liability in damages in respect of any act or omission of us in connection with our obligations under this Agreement will not exceed the net payment received by us from you in the immediately preceding 12 months from when the cause of action arose.
• Our liability for any Loss caused by our negligence will be reduced proportionately to the extent that your acts or omissions have contributed to such Loss or damage.
• We have no responsibility or liability whatsoever where you have suffered Loss as result of:
• Any Data being lost, destroyed or damaged by the ContinuSys Solution or the Host;
• Your reliance on any Data as accurate and correct; or
• A failure in the ContinuSys Solution or in the delivery of our Services caused as a result of any third-party hardware or software issue.

12.5 Exclusion of other Terms

• Subject to clause 12.5(b), to the maximum extent permitted by Law, any statutory condition, guarantee or warranty which would otherwise apply to or be implied in this Agreement is hereby excluded.
• Liability for breach of a guarantee conferred by the Australian Consumer Law (other than those conferred by ss 51 to 53 of the Australian Consumer Law) is limited (at our election) to us providing the Services again or the payment of the cost of having the Services supplied again.

Any notices given under or in connection with this Agreement:

• Must be in legible writing and in English;
• Must be either:
• Addressed to a party’s contact address as specified in this Agreement or as otherwise notified by a party to the other party from time to time; or
• In our case, sent to you or your Authorised Representative by internal mail or notification within the ContinuSys Solution;
• Must be:
• Delivered to that party’s address;
• Sent by trackable post to that party’s address;
• Issued via the ContinuSys Solution to the Authorised Representative; or
• Sent by email to that party’s email address;
• Will be deemed to be received by the addressee:
• If delivered by hand, at the time of delivery;
• If sent by post, on the day of delivery;
• If sent via the ContinuSys Solution, at the time the message was sent; or
• If sent by email, at the time that would be the time of receipt under the Electronic Transactions Act 1999 (Cth).

• If a dispute arises out of or relates to this Agreement (Dispute), except to the extent it relates to your obligation to make payment to us of any Fees or Expenses, a party to the Agreement may not commence any court or arbitration proceedings relating to the Dispute unless it has complied with this clause, except where the party seeks urgent interlocutory relief.
• A party claiming that a Dispute has arisen must give a Notice (Dispute Notice) to the other party or parties to this Agreement specifying the nature of the Dispute. The parties must then negotiate in good faith to resolve the Dispute expeditiously using informal dispute resolution techniques such as mediation, expert evaluation or determination or similar techniques agreed to by them.
• If the parties do not resolve the Dispute within fourteen (14) days of receipt of the Dispute Notice (or such further period as agreed in writing by them) any party to the Dispute may refer the Dispute to mediation by a mediator nominated by the President or the nominee of the President for the time being of the Queensland Law Society Incorporated.
• Each party must bear its own costs in connection with resolving the Dispute and the Parties must bear equally the costs of any mediator engaged.
• Any information or documents disclosed by a party under this clause must be kept confidential and may not be used except to attempt to resolve the dispute.

15.1 Essential terms

Clauses 4.1, 5, 7, 8, 10 and 12are essential terms of this Agreement.

15.2 Amendments

Unless otherwise provided in this Agreement, this Agreement may only be varied by a further written agreement accepted by or on behalf of each of the parties.

15.3 Essential terms

Neither party will be liable for any delay or failure to perform its obligations pursuant to this Agreement, except for an obligation to make a payment, if such delay is due to Force Majeure. If a delay or failure of a party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that party’s obligations will be suspended. If a delay or failure by a party to perform its obligations due to Force Majeure exceeds thirty (30) days, either party may immediately terminate this Agreement on providing Notice to the other party.

15.4 Assignment

• We may, upon Notice in writing to you, assign or otherwise transfer the benefit of all or any part of this Agreement to any other person or entity.
• Neither any rights, benefits or liabilities relating to this Agreement may be assigned by you without our prior consent, which will not be unreasonably withheld.

15.5 Consents

Clauses 4.1, 5, 7, 8, 10 and 12are essential terms of this Agreement.

15.2 Amendments

Unless this Agreement expressly states otherwise, a party may in its absolute discretion, give conditionally or unconditionally or withhold, any consent under this Agreement. To be effective any consent under this Agreement must be in writing.

15.6 Costs

Each party will pay their respective costs and expenses of in connection with the negotiation, preparation, execution, and performance of this Agreement.

15.7 Entire Agreement

This Agreement contains the entire agreement between the parties about its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this Agreement and has no further effect. You warrant that you have not relied on any representation made by us which has not been stated expressly in this Agreement.

15.8 Further acts

Each party must promptly do all further acts and execute and deliver all further documents required by law or reasonably requested by another party to give effect to this Agreement.

15.9 Jurisdiction

This Agreement is governed by the law in force in the State of Queensland Australia and each party submits to the non-exclusive jurisdiction of the courts of Queensland and the courts competent to determine appeals from those courts, in relation to any proceedings that may be brought at any time relating to this Agreement.

15.10 No Merger

No right or obligation of any party will merge on completion of any transaction contemplated by this Agreement.

15.11 Severability

Any provision of this Agreement that is illegal, void or unenforceable will be severed without prejudice to the balance of the provisions of this Agreement which shall remain in force.

15.12 Waiver

• Failure to exercise or enforce or a delay in exercising or enforcing or the partial exercise or enforcement of any right, power or remedy provided by law or under this Agreement by any party will not in any way preclude, or operate as a waiver of, any exercise or enforcement, or further exercise or enforcement of that or any other right, power or remedy provided by law or under this Agreement.
• Any waiver or consent given by any party under this Agreement will only be effective and binding on that party if it is given or confirmed in writing by that party and no waiver of a breach of any term of this Agreement will operate as a waiver of another breach of that term or of a breach of any other term of this Agreement.

16.1 Definitions

In this Agreement:

Acceptance Date means the date that acceptance occurs under clause 3.1.

Access means to make a fully functioning version available for Use.

Account Establishment has the meaning given in sub clause 5.2(a).

Account Data means information and material captured as part of Account Establishment on each of your Authorised Users.

Activity Data means all data that relates to Authorised Users including restriction and access rights, user details (personal information) and communication data.

Agreement means this document and includes any annexures, schedules and appendixes to it.

Applications mean the individual software applications that are offered as part of the ContinuSys Solution, which include C-IBMS, GAT, C-PEOPLE , C-ASSET, C-FINANCE, C-TIME, C-WORK, C-EFSS, C-BACK, C-GRC, C-BCM, C-AUDIT, C-ASK, C-BPM, C-DASH, C-LOYAL, C-MAKE and any other additional application that we make available from time to time.

Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).

Authorised Users means any user of the ContinuSys Solution that you have provided with authority to Use the ContinuSys Solution in accordance with this Agreement.

Authorised Representative means the person that you nominate to us that has the authority referred to in clause 9.2 or, if no person has been nominated, the individual that accepts and agrees to be bound by the terms of this Agreement.

Claim includes a demand, claim, action, dispute or proceeding made or brought by or against the person, however arising and whether present, unascertained, immediate, future or contingent.

Consequential Loss means indirect economic loss, loss of income or profit, loss or damages resulting from wasted management time, damage to goodwill or business reputation, loss of contract, loss of data, liability under other agreements or to third parties, loss of opportunity or any other special, indirect, remote or punitive loss or damage

ContinuSys Account means the user account that you create in order to enable you to access the ContinuSys Solution.

ContinuSys Solution means the software solution that we provide including our cloud-based platform and each of the Applications that interact with our platform.

Customer Data means all data that relates to your existing or prospective customers.

Confidential Information means information that is by its nature confidential and is designated by a party as confidential or a party knows or ought to know is confidential, other than information which is or becomes public knowledge otherwise than by breach of this Agreement or any other confidentiality obligation.

Corporations Act means the Corporations Act 2001 (Cth).

Copyright Act means the Copyright Act 1968 (Cth).

Data means Account Data, Customer Data, Activity Data, Input Data and Derived Data collectively, jointly or singularly as the context requires.

Data Breach has the meaning set out in 6.2

Defect means an error in the ContinuSys Solution or a Feature due to a fundamental issue with the underlying code.

Default Connectors mean data connectors native to the ContinuSys Solution that enables raw data movement from data sources outside the ContinuSys Solution into the ContinuSys Solution. ContinuSys Solution Services means the services and functions delivered to you or accessible by you through the ContinuSys Solution.

Derived Data means new data that is generated by the ContinuSys Solution.

Development has the meaning given in sub-clause 4.9.

Experienced User means an Authorised User that is:

• Knowledgeable about your Systems; and
• Familiar with and competent in the Use of the ContinuSys Solution.

Features mean software add-ins and 3rd party integrations (API’s), as offered by us from time to time, that are additional to the Services and the ContinuSys Solution.

Fees mean the fees payable to us for our provision of Access and our rendering of Services, which as at the Agreement Date are published on our Website or otherwise notified to you directly.

Force Majeure means any cause beyond the reasonable control of a party and which that party is unable to overcome by the exercise of reasonable diligence and at a reasonable cost, including an act of God, fire, earthquake, storm or flood, pandemic, epidemic, order of government or regulatory authority, and the failure of third-party equipment, software, technology or other services necessary for the performance of a party’s obligations under this Agreement.

GST means a goods and services tax, or a similar value added tax, levied or imposed under the GST Law.

GST Law has the meaning given to it in the A New Tax System (Goods and Development Services Tax) Act 1999 (Cth).

Harmful Code means computer program virus, drop dead device, trojan horse, time bomb, back door device or other code that is harmful, destructive or disabling or which assists in or enables unauthorised access to, or use or modification of any of your or our Systems.

Host means Amazon Web Services, or any other cloud server host that we engage from time to time to store your Data and enable your Authorised Users to Access the ContinuSys Solution.

Insolvent means if a person is insolvent or an insolvent under administration, or has a controller appointed (each as defined in the Corporations Act), are in receivership, in receivership and management, in liquidation, in provisional liquidation, under administration, wound up, subject to any arrangement, assignment or composition, protected from creditors under any statute, dissolved (other than to carry out a reconstruction whilst solvent) or otherwise unable to pay debts when they fall due.

Intellectual Property Rights means all intellectual property rights, including the following rights:

• Copyright, patents, rights in circuit layouts, trademarks, designs, trade secrets, know how, and any right to have confidential information kept confidential;
• Any application or right to apply for registration of any of the rights referred to in paragraph (a); and
• All rights or a similar nature to any of the rights in paragraphs (a) and (b) which may subsist, whether or not such rights are registered or capable of being registered.

Improvement has the meaning given in sub clause 7.2.

Input Data means data that you or your Authorised Users input into the ContinuSys Solution.

Law includes any requirement of any statute, rule, regulation, proclamation, ordinance or by-law, present or future, and whether state, federal or otherwise.

Loss includes any damage, loss, cost, liability or expense of any kind and however arising (including as a result of any Claim) including penalties, fines and interest whether prospective or contingent and any amounts that for the time being are not ascertained or ascertainable.

Moral Right means moral rights as defined in the Copyright Act 1968 (Cth).

New Services means services offered by us in addition to the Services described in this Agreement (including services which extend, alter, improve or add functionality to the Services).

Notice means a notice given under or in connection with this Agreement that adheres to the requirements in clause 13.

Personnel means employees and contractors.

Licence has the meaning given by clause 4.1.

Representative of a person means an officer, employee, contractor, professional adviser or agent of that person.

Services mean the ContinuSys Solution Services and Support Services that we provide, individually, jointly or collectively as the context requires.

Support Services mean services rectifying Defects in the operation and function of the ContinuSys Solution.

System means all computer firmware, middleware, protocols and other computer programs and all computer hardware, peripheral equipment, networks, communications systems and other equipment of whatever nature, used in your receipt of the Services and Access to the ContinuSys Solution.

Term means the period of time from the Acceptance Date continuing until the Agreement is terminated in accordance with clause 11.

Upload means to input, upload or import.

Use means to load, execute, display and perform.

User Documentation means any material we have made available to you containing technical or practical information regarding Use by you and your Authorised Users of the ContinuSys Solution.

Website means the website through which the ContinuSys Solution is available, being www.continusys.com or as updated from time to time.

16.2 Interpretation

In interpreting this Agreement, unless the context provides otherwise:

• The singular includes the plural and vice versa, and a gender includes other genders;
• Another grammatical form of a defined word or expression has a corresponding meaning;
• A reference to a rule, paragraph or schedule is to a rule or paragraph of, or schedule to, this Agreement and a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
• A reference to dollar or $, is to Australian currency;
• A reference to time is to time in Brisbane Queensland, Australia;
• A reference to a person includes a natural person, partnership, body corporate, association, and any Government agency;
• A reference to a party means a party to this Agreement and includes the party’s executors, administrators, successors, substitutes (including by novation) and assigns;
• A reference to a group of persons is to any 2 or more of them taken together and to each of them individually;
• A reference to the whole is to each part of it;
• Reference to a statute, regulation, code or provision of a statute, regulation or code includes any modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it;
• “including” and similar expressions are not words of limitation;
• Costs and expenses include legal costs and expenses on a full indemnity basis;
• Conduct includes an omission, statement or undertaking, whether or not in writing;
• “property” or “asset” includes all property and assets of any nature, including a business, and all rights, revenues and benefits;
• A rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this document or any part of it;
• If a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day;
• Where time is to be calculated by reference to a day or event, that day or the day of that event is excluded;
• A word or expression defined in the Corporations Act has the meaning given to it in the Corporations Act; and
• Headings and table of contents are for ease of reference only and do not affect interpretation.