Terms & Conditions

Key Points

1 Acceptance

 

1.1  SleepFit Solutions Pty Ltd ABN 60 162 880 953 (we, us or our), own the cloud-based software, including all instructions in hard copy or electronic form and any update, modification or release of any part of that software (Software) which is accessible at https://app.fatiguefit.com, and may be available through other addresses and channels (Site).

 

1.2  These terms and conditions (Terms) set out the terms and conditions upon which we agree to grant you a right to use the Services.

 

1.3  In these Terms, you means the person or entity registered with us as our customer. If you create an Account and are agreeing to these Terms on behalf of a company, your employer, an organisation, government or other legal entity (Entity), then you means the Entity and you are binding that Entity to these Terms. If you are accepting these Terms on behalf of an Entity, you as an individual represent and warrant that you are authorised by the Entity to do so.

 

1.4  You accept these Terms by clicking a box indicating your acceptance, by creating an Account or otherwise acknowledging your acceptance of these Terms.

 

1.5  These Terms commence on the date you accept these Terms and continue until your subscription under these Terms has expired or has been terminated (Term).

 

1.6  The Services are purchased as subscriptions for the term stated in the online order form with various inclusions depending on the subscription (Subscription). Your subscription will automatically renew for additional periods equal to the expiring subscription term, unless either Party gives written notice of termination at least 7 days before the end of the relevant subscription term. You will be charged at our then current Fees at the time of the applicable renewal.

 

2 Services

2.1  In consideration of payment of the Fees, we will provide the Services to you in accordance with these Terms, whether ourselves or through our Personnel.

2.2  You agree that we may amend the Services (including any features) or the Fees at any time, by providing written notice to you. If you do not agree to any amendment made to the Services or the Fees, you may terminate these Terms in accordance with clause 20.2(b)(1).

2.3  We warrant and agree that, we will use reasonable effort to ensure all of our obligations under these Terms will be carried out:

(a)  by suitably competent and trained Personnel; and

(b)  in an efficient and professional manner.

 

3 Licence and licence restrictions

 

3.1  Subject to your compliance with these Terms, we grant you (and your Authorised Users) a non-exclusive, non-transferable (except with our written permission), non-sublicensable (except as otherwise permitted under these Terms), personal and revocable licence to access and use the Services for your internal business purposes as contemplated by these Terms, for the Term (Licence).

 

3.2  You agree that the Licence permits you, and up to the number of Authorised Users set out in your Subscription, to access and use the Services.

 

3.3  You may, at any time, request an increase in the number of Authorised Users by submitting this request in writing to us. We may, in our sole discretion, agree to such request subject to you agreeing to any proposed increase in the Fees.

 

3.4  You must not (and must ensure that any Authorised Users do not) access or use the Services except as permitted by the Licence and you must not and must ensure that any other person (including an Authorised User) does not:

(a)  use the Services in any way that breaches any applicable Laws or infringes any person's rights, including Intellectual Property Rights (and privacy rights);

(b)  use the Services in any way that damages, interferes with or interrupts the supply of the Services;

(c)  introduce malicious programs into our hardware and software or Systems, including any viruses or malware through any channel;

(d)  allow others to access or use your/their Account, password or authentication details;

(e)  continue to use the Services after termination of their employment and/or relationship with you;

​​(f)  use the Services to carry out security breaches or disruptions of a network. This includes accessing data where you are not the intended recipient or logging into a server or account that you are not expressly authorised to access or corrupting any data (including network sniffing/monitoring, pinged floods, packet spoofing, denial of service and forged routing information for malicious purposes);

(g)  use any program/script/command, or send messages of any kind, with the intent to interfere with, or disable, any person's use of the Services;

(h)  use the Services to circumvent user authentication or security of any of our networks, accounts or hosts or those of members or suppliers;

(i)  use the Services to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted; and

(j)  if applicable, send any form of harassment via email, or any other form of messaging, whether through language, frequency, or size of messages, or use the Services in breach of any person's privacy (such as by way of identity theft or "phishing").

4 Account and logins

4.1  You will require an Account, and each of your Authorised Users will require a login (which is linked to your Account), in order to use the Services.

4.2  We may create your Account and the logins for Authorised Users. If we do so, you must supply us with the email addresses of your requested Authorised Users to enable us to set up the logins. You may be permitted to create your own Account. You may be permitted to create logins for your Authorised Users.

4.3  You must ensure that any information you provide to us, or we request from you, for any Account or login, is complete and accurate, and you are authorised to provide this information to us.

4.4  You are the Account owner and regardless of any change in any contact details, you will remain responsible for your Account (and all logins), as set out in these Terms. If you wish to change the Account owner, you must provide us with a written request to transfer the ownership of the Account to the incoming party, which must also include the incoming party's written consent to take over full responsibility for the Account, in a form acceptable to us.

4.5  It is your responsibility to keep your Account details confidential and to ensure that all Authorised Users do the same in relation to their login details. You are responsible for all activity on your Account and all activity by any Authorised User, and for ensuring that any activities on your Account comply with these Terms.

4.6  You agree that the maximum number of Authorised Users is set out in your Subscription and you will not allow logins of Authorised Users to be used by more than one individual or reassigned or transferred to another individual.

4.7  We are not responsible for the management or administration of your Account, any logins or your Authorised Users.

5 Access and availability

5.1  We agree to use commercially reasonable endeavours to ensure that the Services will be available and accessible at all times during the Term.

5.2  During the Term, from time to time, we may perform scheduled and emergency maintenance and updates in relation to the Services. You agree that access to, or the functionality of all or part of the Services, may need to be suspended for a time in order for us to do this.

5.3  We will endeavour to provide you with reasonable notice, where possible, of any interruptions to access and availability of the Services.

6 Additional Services
 

Supported Services

6.1  You may also choose to purchase Supported Services.

6.2  Supported Services are subject to the fees and the terms and conditions as set out on the Site or otherwise communicated to you. Payment for any Supported Services must be made in advance of using providing you with the Supported Services. If we express a time within which the Supported Services are to be provided, you agree that such time is an estimate only, and creates no obligation on us to provide the Supported Services by that time. We do not make any representations, warranties or guarantees that any Supported Services will be fit for any particular purpose, will achieve any specified result, or will provide any benefit. In the event of any conflict between any Supported Services terms and conditions and these Terms, the Supported Services terms and conditions will prevail.

Expert Led Services

6.3 You may request Expert Led Services by notifying us by phone, in writing via email, or through the Site.

 

6.4 We may, at our discretion, provide you with written notice in the form of a scope of services, a proposal or a statement of work (as applicable), covering the requested Expert Led Services and any further fee required for us to undertake the Expert Led Services. We will provide you with a separate agreement in relation to the Expert Led Services and such services will not form part of these Terms.

Technical Support Services

7.1 The Technical Support Services are online technical support via email, between the hours of 9am and 5pm on Business Days (Technical Support Services). In order for you to receive the Technical Support Services, you or your Authorised User must place a request by sending an email to support@fatiguefit.com.au. We agree to use our best endeavours to respond to any such request on a timely basis.

Your obligations
  1. You warrant, represent and agree:

  2. (a)  you have the legal capacity to enter into a legally binding agreement;

  3. (b)  there are no legal restrictions preventing you from agreeing to these Terms;

  4. (c)  that you have reviewed and understand these Terms (including our Privacy Policy), and will use the Services in accordance with them, our reasonable requests or requirements, and all applicable Laws;

  5. (d)  you will be responsible for the use of any part of the Services, and you must ensure that no person uses any part of the Services to break any Law or infringe any person’s rights (including Intellectual Property Rights and privacy rights) or in any way that damages, interferes with or interrupts the supply of the Services;

  6. (e)  to cooperate with us and provide all assistance, resources, data, people, information, facilities, access and documentation reasonably necessary to enable us to comply with our obligations under these Terms or at Law, in a timely manner;

  7. (f)  all information and documentation that you provide to us in connection with these Terms is true, correct and complete and that we will rely on such information and documentation in order to provide the Services;

  8. (g)  you have not relied on any representations or warranties made by us in relation to the Services (including as to whether the Services are or will be fit or suitable for your particular purposes) or any Third Party Inputs, unless expressly stipulated in these Terms;

  9. (h)  you have not made any representations or warranties to any third parties that could be construed as being representations or warranties from us in relation to the Services or any other matter;

  10. (i)  you are responsible for all users using the Services, including your Personnel and any Authorised Users;

  11. (j)  the Services and any associated programs and files at are used at your own risk;

  12. (k)  the technical processing and transmission of the Services, including Customer Data, may be transferred unencrypted and involves:

  13. (1)  transmissions over various networks; and

  14. (2)  changes to conform and adapt to technical requirements of connecting networks or devices;

  15. (l)  you are responsible for obtaining, and providing to us in a timely manner, any consents, licences, authorities and permissions from third parties necessary for the Services to be provided in accordance with these Terms, at your cost;

  16. (m)  we are not responsible for the integrity or existence of any data on the Computing Environment, network or any device controlled by you, your Authorised Users or your Personnel; and

  17. (n)  the Services are provided to you solely for your benefit and you will not (or you will not attempt to) disclose, or provide access to, our Services to third parties without our prior written consent;

  18. (o)  you have the authority to act on behalf of any person or entity for whom you are using the Services and you are deemed to have agreed to these Terms on behalf of any entity for whom you use the Services;

  19. (p)  you have all hardware, software and services which are necessary to access and use the Services (other than those required to be provided by us under these Terms); and

  20. (q)  you are not and have not been the subject of an Insolvency Event.

  21. To the extent contemplated, this clause 8 will survive termination or expiry of these Terms.

  22. 8.2

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  25. 9 Fees and payment

  26. 9.1  You agree to pay us the Fees, and any other amounts payable to us under these Terms, without set-off or delay, via direct debit from a credit card or bank account or as otherwise agreed with us in writing.

  27. 9.2  If required, you also agree to complete a direct debit request form and/or direct debit request service agreement, which may be provided by us or the third-party provider.

  28. 9.3  If you provide us with your credit card or bank account direct debit, you authorise us to direct debit your credit card or bank account for all Fees including the Subscription Fee for the initial subscription term and any renewal subscription term(s) and any Supported Services Fees.

  29. 9.4  If we agree that you may pay the Fees by a method other than direct debit, we will invoice you in advance and you must pay the Fees by the date and payment method set out in the invoice and all Fees must be paid in advance of the next billing cycle for Subscription Fees and in advance of us providing the Services for other Fees.

  30. 9.5  The Subscription Fees will be payable in advance either annually or in accordance with any different billing frequency set out in your online order.

  31. 9.6  Where you have upgraded your Subscription, we will debit your credit card or bank account on the day of the upgrade pro-rata for the days left in the current billing cycle.

  32. 9.7  If you have chosen to purchase Supported Services, you must pay the Supported Service Fee at the time of your order. You will not be entitled to receive the benefit of any Supported Services until you pay the applicable Supported Services Fee.

  33. 9.8  You are responsible for reviewing the pricing schedule, features and limits associated the Services, which are available on the Site.

  34. 9.9  You must ensure your chosen payment method has sufficient funds to pay the Fees.

  35. 9.10  If any payment has not been made or is not successful in accordance with these Terms, we may (at our absolute discretion):

  36. (a)  immediately cease or suspend the provision of the Services, and recover as a debt due and immediately payable from you, our additional costs of doing so;

  37. (b)  charge interest at a rate equal to the Reserve Bank of Australia’s cash rate from time to time plus 8% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the due date for payment in accordance with these Terms; and

  38. (c)  engage debt collection services and/or commence legal proceedings in relation to any such amounts.

  39. 9.11  If you rectify such non-payment within a reasonable time after the Services have been suspended, then we may, at our discretion, recommence the provision of the Services as soon as reasonably practicable.

  40. 9.12  You acknowledge that we may set off any amounts you owe us from time to time against any amounts we owe to you.

  41. 10 Communication and privacy

  42. 10.1  You agree that we may contact you via email or text message in relation to the Services. In the future, we may contact you via the platform for the Services using in-account notifications..

  43. 10.2  You further agree that we may also send our marketing and promotional material which may be of interest to you, using your contact details. You may opt out of receiving direct marketing messages at any time. Where you opt-out we will continue to send you functional communications relevant to your use of the Services.

  44. 10.3  You are responsible for the collection, use, storage and otherwise dealing with Personal Information related to your business and all matters relating to the Customer Data.

  45. 10.4  You must, and must ensure that your Personnel and Authorised Users, comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any privacy or anti-spam Laws applicable to you in respect of all Personal Information collected, used, stored or otherwise dealt with under or in connection with these Terms (Privacy Laws).

  46. 10.5  Without limiting this clause 10, you must only disclose Personal Information, if:

  47. (a)  you are authorised by Privacy Laws to collect the Personal Information and to use or disclose it in the manner required by these Terms;

  48. (b)  you have informed the individual to whom the Personal Information relates, that it might be necessary to disclose the Personal Information to third parties; and

  49. (c)  where any Personal Information is Sensitive Information, you have obtained the specific consent to that disclosure from the individual to whom the Sensitive Information relates.

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    10.6 We agree to handle any Personal Information provided to us, solely for the purpose of performing our obligations under these Terms,

  52. and in accordance with any applicable Laws and our Privacy Policy.

  53. 11 Security

  54. 11.1 We are ISO27001 certified and we agree to use reasonable commercial endeavours to implement and maintain industry standard physical, technical and administrative security measures designed to protect Customer Data from unauthorised access, destruction, use, modification, or disclosure.

  55. 12 Confidential Information

  56. 12.1  Each Receiving Party agrees:

  57. (a)  not to disclose the Confidential Information of the Disclosing Party to any third party;

  58. (b)  to use all reasonable endeavours to protect the Confidential Information of the Disclosing Party from any unauthorised disclosure; and

  59. (c)  to only use the Confidential Information of the Disclosing Party for the purposes for which it was disclosed or provided by the Disclosing Party, and not for any other purpose.

  60. 12.2  The obligations in clause 12.1 do not apply to Confidential Information that:

  61. (a)  is required to be disclosed in order for the Parties to comply with their obligations under these Terms;

  62. (b)  is authorised to be disclosed by the Disclosing Party;

  63. (c)  is in the public domain and/or is no longer confidential, except as a result of a breach of these Terms; or

  64. (d)  must be disclosed by Law or by a regulatory authority, including under subpoena.

  65. 12.3  Each Party agrees that monetary damages may not be an adequate remedy for a breach of this clause 11. A Party is entitled to seek an injunction, or any other remedy available at law or in equity, at its discretion, to protect itself from a breach (or continuing breach) of this clause 11.

  66. 12.4  This clause 11 will survive the termination or expiry of these Terms.

  67. 13 Australian Consumer Law

  68. 13.1  Certain legislation, including the ACL, and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of our services which cannot be excluded, restricted or modified (Statutory Rights).

  69. 13.2  If the ACL applies to you as a consumer, nothing in these Terms excludes your Statutory Rights as a consumer under the ACL. You agree that our Liability for the Services provided to an entity defined as a consumer under the ACL is governed solely by the ACL and these Terms.

  70. 13.3  Subject to your Statutory Rights, we exclude all express and implied warranties, and all material, work and services (including the Services) are provided to you without warranties of any kind (including as to fitness for purpose), either express or implied, whether in statute, at Law or any other basis.

  71. 13.4  This clause 13 will survive termination or expiry of these Terms.

  72. 14 Intellectual Property Rights

  73. 14.1  This clause 14 will survive termination or expiry of these Terms.

  74. 14.2  The Parties agree that nothing in these Terms constitutes a transfer or assignment of any Intellectual Property Rights.

  75. Our Intellectual Property Rights

  76. 14.3  You agree that we (or the relevant third party) owns all Intellectual Property Rights in:

  77. (a)  Our Materials;

  78. (b)  New Materials or Improvements; and

  79. (c)  any Feedback,

  80. and these Intellectual Property Rights will at all times vest, or remain vested, in us (or, if applicable, our third-party service providers). To the extent that ownership of these Intellectual Property Rights does not automatically vest in us, you agree to do all acts necessary or desirable to assure our title to such rights.

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  83. 14.4  In the use of any Intellectual Property Rights in connection with these Terms, you agree that you must not (and you must ensure that your Personnel do not) commit any Intellectual Property Breach. Where you reasonably suspect that such a breach may have occurred, you must notify us immediately.

  84. 14.5  You also agree that:

  85. (a)  we may use Feedback in any manner which we see fit (including to develop new features) and no benefit will be due to you as a result of any use by us of any Feedback;

  86. (b)  you must not whether directly or indirectly, without our prior written consent:

  87. (1)  copy, modify, adapt, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble or decompile the Services or otherwise attempt to discover any part of the source code of the Services;

  88. (2)  use any unauthorised, modified version of the Services, including (without limitation) for the purpose of building similar or competitive software or for the purpose of obtaining unauthorised access to the Services;

  89. (3)  unless authorised under these Terms, use the Services in a web-enabled form for the purposes of third-party analysis or view via the internet or other external network access method;

  90. (4)  rent the use of the Services to any third parties;

  91. (5)  take any action that may compromise or jeopardise our Intellectual Property Rights in the Services or otherwise;

  92. (6)  remove or deface any confidentiality, copyright or other proprietary notice placed on the Services; or

  93. (7)  use the Services in any way that involves service bureau use, outsourcing, renting, reselling, sublicensing, concurrent use of a single user login, or time-sharing.

  94. Customer Data

  95. 14.6  As between you and us:

  96. (a)  all Customer Data is and remains your property; and

  97. (b)  you retain any and all rights, title and interest in and to the Customer Data, including all copies, modifications, extensions and derivative works.

  98. 14.7  You grant us a limited licence to copy, transmit, store and back-up or otherwise access the Customer Data during the Term (and for a reasonable period after the Term), to:

  99. (a)  supply the Services to you (including to enable you and your Personnel to access and use the Services);

  100. (b)  diagnose problems with the Services;

  101. (c)  enhance and otherwise modify the Services;

  102. (d)  perform Analytics;

  103. (e)  develop other services, provided we de-identify the Customer Data; and

  104. (f)  as reasonably required to perform our obligations under these Terms.

  105. 14.8  You acknowledge and agree that:

  106. (a)  you must, at all times, ensure the integrity of the Customer Data and that the collection and use of the Customer Data is compliant with all Laws;

  107. (b)  we assume no responsibility or Liability for the Customer Data. You are solely responsible for the Customer Data and the consequences of using, disclosing, storing or transmitting it. It is your responsibility to back up the Customer Data; and

  108. (c)  the operation of the Services is reliant on the accuracy of the Customer Data, and the provision of inaccurate or incomplete Customer Data by you may affect the use, output and operation of the Services.

  109. 14.9  You represent and warrant that:

  110. (a)  you have obtained all necessary rights, releases and permissions to provide or have the Customer Data provided to us and to grant the rights granted to us in these Terms; and

  111. (b)  the Customer Data is accurate and complete;

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  113. 15

  114. 15.1

  115. 15.2

  116. 16

  117. 16.1

  118. 16.2

  119. 16.3

  120. 17

  121. 17.1

  122. 18

  123. 18.1

  124. 18.2

  125. 19

  126. 19.1

  127. (c) the Customer Data (and its transfer to and use by us) as authorised by you, under these Terms does not violate any Laws (including those relating to export control and electronic communications) or rights of any third party, including any Intellectual Property Rights, rights of privacy, or rights of publicity; and

  128. (d) any use, collection and disclosure authorised in these Terms is not inconsistent with the terms of any applicable privacy policies.

  129. Analytics

  130. Despite anything to the contrary, we may monitor, analyse and compile statistical and performance information based on and/or related to your use of the Services, in an aggregated and anonymised format (Analytics). You agree that we may make such Analytics publicly available, provided that it:

  131. (a)  does not contain identifying information; and

  132. (b)  is not compiled using a sample size small enough to make the underlying Customer Data identifiable.

  133. We, and our licensors own all right, title and interest in and to the Analytics and all related software, technology, documentation and content used or provided in connection with the Analytics, including all Intellectual Property Rights in the foregoing.

  134. Downloading materials and assessment results

  135. When downloading materials, templates and documents from the Services, you understand that you are downloading content that is not specific to your requirements and should be not be relied upon in any way. It is your responsibility to modify any documents and templates to suit your own specific requirements. You can purchase Supported Services or Expert Led Services in order to make the documents and templates specific for your intended use.

  136. You acknowledge that any incident assessments, audits or training conducted using the Services are only part of establishing fatigue management policies and procedures and we recommend you undertake additional and comprehensive gap analysis and risk assessments.

  137. Our assessments and surveys which form part of the Services are based on your answers to our questions. If you do not answer in an accurate and complete manner, your results might not be accurate for your circumstances nor give a correct analysis of your situation.

  138. Indemnities

  139. Except to the extent that the Liability arose from our negligent acts or omissions or any of our Personnel, you indemnify us and our Personnel against all Liability that we or any of our Personnel may sustain or incur as a result, whether directly or indirectly, of:

  140. (a)  your or your Personnel’s breach of clauses 9, 10, 11, and 14; and

  141. (b)  your or your Personnel’s negligent, unlawful or wilful acts or omissions in connection with these Terms.

  142. Limitations on Liability

  143. Despite anything to the contrary (except for clause 16) and to the maximum extent permitted by law:

  144. (a)  neither Party will be liable for any Consequential Loss;

  145. (b)  a Party’s liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel); and

  146. (c)  our aggregate liability for any Liability arising from or in connection with these Terms will be limited to us repaying you the amount of the Fees paid by you to us in the immediately preceding 12 months for the supply of the relevant Services to which the Liability relates.

  147. This clause 18 will survive termination or expiry of these Terms.

  148. Exclusions to Liability

  149. Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability, caused or contributed to by, arising from or connected with:

  150. (a)  loss of, or damage to, any property or any injury to or loss to any person;

  151. (b)  the Computing Environment;

  152. (c)  your or your Personnel’s acts or omissions;

  153. (d)  any reliance on or in relation to the Services (including any reports or templates produced) by you, including for the purposes of complying with any obligations on you (including under any Laws);

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  157. (e)  any use or application of the Services by a person or entity other than you, or other than as reasonably contemplated by

  158. these Terms;

  159. (f)  any event outside of our reasonable control (including a Force Majeure Event, and a fault, defect, error or omission in the Computing Environment or Customer Data).

  160. (g)  any work, services, goods, materials or items which do not form part of the Services (as expressed in these Terms), or which have not been provided by us;

  161. (h)  any Third Party Inputs; and/or

  162. (i)  any delay in us providing the Services to you, for whatever reason.

  163. 19.2 This clause 19 will survive termination or expiry of these Terms.

  164. 20 Termination

  165. 20.1  You agree that you can only terminate these Terms in accordance with this clause 20 or with clause 1.6 and that there are no other rights for you to terminate for any other reason (including convenience or change of mind).

  166. 20.2  These Terms, your Account and all Authorised User logins will terminate immediately upon written notice by:

  167. (a) us, if:

  168. (1)

  169. (2) (3) (4) (5)

  170. you (or any of your Personnel) breach any provision of these Terms and that breach has not been remedied within 7 days of being notified by us;

  171. you fail to provide us with clear or timely instructions or information to enable us to provide the Services;

  172. for any other reason outside our control which has the effect of compromising our ability to provide the Services;

  173. you are unable to pay your debts as they fall due; or

  174. do not adjust your usage of our Technical Support Services in line with a request by us that is issued in accordance with these Terms; and

  175. (b) you, if we:

  176. (1) provide you with notice and you choose to terminate these Terms in accordance with clause 23.1

  177. (2) are in breach of a material term of these Terms, and that breach has not been remedied within 7 days of being notified by you; or

  178. (3) are unable to pay our debts as they fall due.

  179. 20.3  Upon expiry or termination of these Terms:

  180. (a)  we will immediately cease providing the Services;

  181. (b)  we will be entitled to permanently delete all Customer Data within 1 month from expiry or termination of these Terms;

  182. (c)  you are to pay for all Services provided prior to termination, including Services which have been provided and have not yet been invoiced to you, and all other amounts due and payable under these Terms;

  183. (d)  to the maximum extent permitted by law, Fees paid are not refundable and there will be not refunds or credits for any unused Licence (or part thereof);

  184. (e)  pursuant to clauses 20.2(a)(1), (2), (4) and (5) you also agree to pay us additional costs arising from, or in connection with, such termination; and

  185. (f)  immediately return (where possible) or delete or destroy (where not possible to return), any of our property (including any of our Confidential Information and Intellectual Property).

  186. 20.4  Termination of these Terms will not affect any rights or liabilities that a party has accrued under it.

  187. 20.5  This clause 20 will survive the termination or expiry of these Terms.

  188. 21 GST

  189. 21.1  Unless specified otherwise, all amounts in these Terms are exclusive of GST.

  190. 21.2  If GST is payable on any supply made under these Terms, the recipient of the supply must pay an amount equal to the GST payable on the supply. That amount must be paid at the same time that the consideration is to be provided under these Terms and must be paid

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    in addition to the consideration expressed elsewhere in these Terms, unless it is expressed to be inclusive of GST. The recipient is not

  193. required to pay any GST until the supplier issues a tax invoice for the supply.

  194. 21.3  If an adjustment event arises in respect of any supply made under these Terms, a corresponding adjustment must be made between the supplier and the recipient in respect of any amount paid by the recipient under this clause, an adjustment note issued (if required), and any payments to give effect to the adjustment must be made.

  195. 21.4  If the recipient is required under these Terms to pay for or reimburse an expense or outgoing of the supplier, or is required to make a payment under an indemnity in respect of an expense or outgoing of the supplier, the amount to be paid by the recipient is to be reduced by the amount of any input tax credit in respect of that expense or outgoing that the supplier is entitled to.

  196. 21.5  The terms “adjustment event”, “consideration”, “GST”, “input tax credit”, “recipient”, “supplier”, “supply”, “taxable supply” and “tax invoice” each has the meaning which it is given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

  197. 22 Disputes

  198. 22.1  A party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, these Terms (including any question regarding its existence, validity or termination) (Dispute) without first meeting with a senior representative of the other party to seek (in good faith) to resolve the Dispute.

  199. 22.2  If the parties cannot agree how to resolve the Dispute at that initial meeting, either party may refer the matter to a mediator. If the parties cannot agree on who the mediator should be, either party may ask the Law Society of New South Wales to appoint a mediator. The mediator will decide the time, place and rules for mediation. The parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the parties.

  200. 22.3  If the parties cannot agree how to resolve the Dispute at mediation, either party may refer the Dispute to arbitration in accordance with the Australian Centre for International Commercial Arbitration (ACICA) rules. Once a Dispute has been referred to the ACICA, the parties agree to be bound by the decision of the ACICA. The seat of arbitration shall be Sydney, Australia. The language of the arbitration shall be English. The number of arbitrators shall be one.

  201. 22.4  Nothing in this clause will operate to prevent a party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.

  202. 22.5  This clause 22 will survive the termination or expiry of these Terms.

  203. 23 General

  204. 23.1  Amendment: You agree that we may update these Terms (including the Fees) at any time, by providing written notice to you. The amended Terms will come into effect 7 days after we notify you of the changes. If you consider the changes have a material adverse effect on you, you may terminate these Terms, your Account and your Subscription, by giving us 7 days’ notice in writing, in which case clause 20.3 will apply.

  205. 23.2  Assignment: A party must not assign or deal with the whole or any of its rights or obligations under these Terms without the prior written consent of the other Party (such consent is not to be unreasonably withheld).

  206. 23.3  Email: You agree that we are able to send electronic mail to you and receive electronic mail from you. You release us from any Liability you may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to your system or any files by a transfer.

  207. 23.4  Entire agreement: These Terms contain the entire understanding between the parties, and supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.

  208. 23.5  Exclusivity: The Services will be provided to you on a non-exclusive basis.

  209. 23.6  Force Majeure: We will not be liable for any delay or failure to perform our obligations under these Terms if such delay is due to any circumstance beyond our reasonable control (including but not limited to epidemics, pandemics, and Government sanctioned restrictions and orders, whether known or unknown at the time of entering into these Terms) (Force Majeure Event).

  210. 23.7  Further assurance: Each party promptly do all things and execute all further instruments necessary to give full force and effect to these Terms and their obligations under it.

  211. 23.8  Governing law: These Terms are governed by the laws of New South Wales. Subject to clause 22, each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.

  212. 23.9  Notices: Any notice given under these Terms must be in writing addressed to the relevant address last notified by the recipient to the parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 3 Business Days

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    in the case of post, or at the time of transmission in the case of transmission by email (or, where the time of transmission is not on a

  215. Business Day, 9am on the next Business Day).

  216. 23.10  Publicity: You agree that we may advertise or publicise the broad nature of our provision of the Services to you, including on our website or in our promotional material, with your prior written consent.

  217. 23.11  Relationship of Parties: These Terms are not intended to create a partnership, joint venture, employment or agency relationship between the Parties.

  218. 23.12  Severance: If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions.

  219. 24 Definitions

  220. In these Terms, unless the context otherwise requires, capitalised terms have the meanings given to them in these Terms, and: Account means an account accessible to you and/or your Authorised Users to use the Services.

  221. ACL or Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time.

  222. Authorised User, if applicable, means a user permitted to access and use the Services under your Account, as further particularised in your Subscription.

  223. Business Day means a day on which banks are open for general bank business in New South Wales, excluding Saturdays, Sundays and public holidays.

  224. Computing Environment means your computing environment including all hardware, software, information technology and telecommunications services and Systems.

  225. Confidential Information includes information which:

  226. (a)  is disclosed to the Receiving Party in connection with these Terms at any time;

  227. (b)  is prepared or produced under or in connection with these Terms at any time;

  228. (c)  relates to the Disclosing Party’s business, assets or affairs; or

  229. (d)  relates to the subject matter of, the terms of and/or any transactions contemplated by these Terms,

  230. whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever the Receiving Party receives that information.

  231. Consequential Loss includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.

  232. Customer Data means the information, materials, logos, documents, qualifications and other Intellectual Property or data inputted by you, your Personnel, Authorised Users and any customers or users of your web platform into the Services or stored by the Services or generated by the Services as a result of your use of the Services.

  233. Disclosing Party means the party disclosing Confidential Information to the Receiving Party.

  234. Expert Led Services means additional services described on the Site which do not form part of these Terms and which require you to enter into a separate agreement setting out the scope, fees and other terms and conditions. Expert Led Services may include expert consulting on templates you generate using the Services and customisation and development of the Services.

  235. Fee or Fees means those fees due and payable by you for the Services, as set out on the Site, including Subscription Fees and Supported Services Fees.

  236. Feedback means any idea, suggestion, recommendation or request by you or any of your Personnel or Authorised Users, your customers, whether made verbally, in writing, directly or indirectly, in connection with the Services.

  237. Insolvency Event means any of the following events or any analogous event:

  238. (a)  a party disposes of the whole or any part of the party’s assets, operations or business other than in the ordinary course of

  239. business;

  240. (b)  a party ceases, or threatens to cease, carrying on business;

  241. (c)  a party is unable to pay the party’s debts as the debts fall due;

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  243. 25

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  245. (d)  any step is taken by a mortgagee to take possession or dispose of the whole or any part of the party’s assets, operations or

  246. business;

  247. (e)  any step is taken for a party to enter into any arrangement or compromise with, or assignment for the benefit of, a party’s creditors or any class of a party’s creditors; or

  248. (f)  any step is taken to appoint an administrator, receiver, receiver and manager, trustee, provisional liquidator or liquidator of the whole or any part of a party’s assets, operations or business.

  249. Intellectual Property means any copyright, registered and unregistered trade marks, designs (whether or not registered or registrable), domain names, know-how, inventions, processes, trade secrets or Confidential Information; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.

  250. Intellectual Property Breach means any breach by you (or any of your Personnel) of any of our Intellectual Property Rights (or any breaches of third-party rights including any Intellectual Property Rights of third parties), including using or exploiting our Intellectual Property for purposes other than as expressly stated in these Terms (including, without limitation, using our Intellectual Property for commercial purposes or on-selling our Intellectual Property to third parties).

  251. Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property.

  252. Laws means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any person with the authority to bind the relevant Party in connection with these Terms or the provision of the Services, and includes the Privacy Act 1988 (Cth) and the Spam Act 2003 (Cth).

  253. Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to these Terms or otherwise.

  254. Personal Information is defined in the Privacy Act 1988 (Cth) and also includes any similar term as defined in any other privacy law applicable to you.

  255. Personnel means, in respect of a party, any of its employees, consultants, suppliers, subcontractors or agents. Privacy Policy means our privacy policy set out on our Site.
    Receiving Party means the party receiving Confidential Information from the Disclosing Party.
    Site is defined in clause 1.1.

  256. Sensitive Information is defined in the Privacy Laws.
    Services means the Software, the Software as a service as described on the Site, the Supported Services and the Technical Support

  257. Services.

  258. Subscription is defined in clause 1.6.

  259. Subscription Fees means the fees for your Subscription as set out on the Site.

  260. Supported Services means the additional services you may purchase from us to assist you to use the Software as a service as described on the Site.

  261. Supported Services Fees means the fees for Supported Services as set out on the Site.
    System means all hardware, software, networks and other IT systems used by a Party from time to time, including a network. Technical Support Services are defined in clause 7.1.

  262. Third Party Inputs means third parties or any goods and services provided by third parties, including customers, end users, suppliers, transportation or logistics providers or other subcontractors which the provision of the Services may be contingent on, or impacted by.

  263. Interpretation

  264. In these Terms, unless the context otherwise requires:

  265. (a) a reference to these Terms or any other document includes the document, all schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time;

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  268. (b)  a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations,

  269. replacements or re-enactments from time to time;

  270. (c)  a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity and vice versa;

  271. (d)  no clause will be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it;

  272. (e)  a reference to a party (including a Party) to a document includes that party’s executors, administrators, successors, permitted assigns and persons substituted by novation from time to time;

  273. (f)  a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally;

  274. (g)  a reference to time is to local time in New South Wales; and

  275. (h)  a reference to $ or dollars refers to the currency of Australia from time to time.

  276. For any questions and notices, please contact us at: SleepFit Solutions Pty Ltd ABN 60 162 880 953 Email: support@fatiguefit.com.au
    Last update: 26 October 2020

  277. © LegalVision ILP Pty Ltd

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