during the Licence Period and any Renewal Period.
1.1 This Agreement is made between AIRE and the Customer on the date on which the Customer’s AIRE Account is created.
1.2 The terms contained in the Customer’s AIRE Account and in these Terms and Conditions form the Agreement between AIRE and the Customer.
- DEFINITIONS AND INTERPRETATION
In this Agreement, including the Recitals, the following terms will have the following meanings unless the contrary intention appears:
‘Agreement’ means this agreement comprising the Customer AIRE Account details and the AIRE Licence and Software as a Service Agreement Terms and Conditions.
‘AIRE Account’ means the AIRE online account for the Customer containing the Customer’s business details.
‘AIRE Service’ means the service provided by AIRE pursuant to which access is provided to the Product via a Server hosted by AIRE.
‘Authorised Users’ means the employees or contractors of the Customer as nominated by the Customer in their AIRE Account.
‘Business Hours’ means the hours of 9.00am to 5.00pm Monday to Friday local time in Brisbane, Queensland, excluding public holidays.
‘Client’ means the tenant, landlord and/or the third party service provider of the Customer.
‘Client Data’ means any content, information or data provided to the Customer by their Client for use in connection with this Agreement and the AIRE Product. AIRE ‘Commencement Date’ means the date the Customer or the Customer’s Account Manager creates its AIRE Account online.
‘Customer’ means the party named as such in the AIRE Account.
‘Documentation’ means the documentation provided online as part of the Service.
‘Fees’ means the fees specified in the Customer’s AIRE Account.
‘GST’ means any goods or services tax, charge, impost or duty payable in respect of this Agreement or the supply of any goods or service made under or in respect of this Agreement.
‘Licence Period’ means 1 month from the Commencement Date and each month thereafter until termination pursuant to these terms and conditions.
‘Location’ means from any computer or mobile device.
‘Maintenance Services’ means the services described in Clause 10.1.
‘party’ or ‘parties’ means a party or the parties to this Agreement.
‘Product’ means AIRE online mobile web based case management system.
‘Product Updates’ means the updates described in Clause 9.1 of this Agreement.
‘Renewal Period’ means each calendar month after the expiration of the Licence Period.
‘Server’ means the server or servers located at AIRE’s premises or such other location as is nominated by AIRE from time to time and includes the serving computers, hardware and operating systems necessary to operate and support the AIRE Service.
‘Technical Support’ means the support described in Clause 11.1 of this Agreement.
In this Agreement unless the contrary intention appears:
(a) clause headings have been inserted for convenience only and will not be taken into account in interpreting the Agreement;
(b) words importing the singular will include the plural and vice versa;
(c) words importing natural persons will include firms and corporate bodies or other legal persons and vice versa;
(d) reference to a party to this Agreement includes reference to that party’s successors and assigns; and
(e) references to currency are references to Australian dollars (AUD$).
- LICENCE & ACCESS SERVICES
3.1 In consideration of the payment of the Fees, AIRE will provide the Customer with:
(a) a non-exclusive licence to use the Product and the Documentation;
(b) web-based login access to the AIRE Service;
(c) the uploading of Product Updates from time to time;
(d) the Maintenance Services; and
(e) the Technical Support,
during the Licence Period and any Renewal Period in accordance with the terms and conditions of this Agreement.
- GRANT OF LICENCE
4.1 Subject to the payment of the Fees, AIRE grants to the Customer a non-transferable, non-exclusive licence for the Authorised Users to use the Product and the Documentation during the Licence Period and any Renewal Period in accordance with the terms and conditions of this Agreement.
4.2 The Customer will:
(a) only allow the Product and the Documentation to be used by the Authorised Users for the purpose of the Customer’s business and for no other purpose;
(b) ensure that the Product and the Documentation are protected at all times from misuse, destruction or any forms of unauthorised use;
(c) not allow the Product or the Documentation to be used or accessed by any third party;
(d) not sell, sub-licence, assign or in any other way transfer the Product or the Documentation to any third party nor provide any of the reports, labels or other output of the Product to any third party, unless specifically authorised by AIRE in writing and any such use will be subject to this Agreement and such other terms as may be specified by AIRE in writing.
4.3 Where documentation is provided to the Customer, the Customer may make such additional copies of the Documentation as the Customer reasonably requires for use by the Authorised Users at the Location, provided that such copies will be owned by AIRE and bear notices of AIRE’s ownership of copyright.
4.4 The Customer will:
(a) follow all reasonable instructions given by AIRE from time to time with regard to the use of the Product and the Documentation by the Authorised Users; and
(b) permit AIRE, or its agent, at all reasonable times and at AIRE’s expense, to verify that the use of the Product and the Documentation by the Customer and the Authorised Users is in accordance with the terms of this Agreement.
- AIRE SERVICE
5.1 In consideration of the payment of the Fees, AIRE will provide the AIRE Service to the Customer during the Licence Period and any Renewal Period in accordance with the terms of this Agreement.
5.2 AIRE will provide the Customer with the following information and assistance on the Commencement Date or at such other time as agreed between the parties in writing:
(a) all technical specifications required for access to the AIRE Service and use of the Product by the Authorised Users during the Licence Period and any Renewal Period including supported platforms, connectivity and security;
(b) all technical advice and assistance as is reasonably required by the Customer to enable the Customer to establish its connection to the AIRE Service; and
(c) all usernames and passwords required by the Customer to enable access to the AIRE Service by the Authorised Users.
5.3 AIRE reserves the right to make such amendments or modifications to the AIRE Service as required by law or which AIRE, in its sole discretion, decides are in the interest of quality, efficiency and security of the AIRE Service as a whole.
- USE OF AIRE SERVICE
6.1 The Customer is responsible for obtaining and maintaining all equipment, computer hardware and software and all telecommunications services required by the Customer to access and use the AIRE Service and will ensure that all such equipment and services comply with the technical specifications provided by AIRE.
6.2 AIRE reserves the right to give such instructions or directions to the Customer concerning access to, and use of, the AIRE Service by the Authorised Users as required by law or which AIRE, in its sole discretion, decides are in the interest of quality, efficient and security of the AIRE Service as a whole.
6.3 The Customer must:
(a) comply with all reasonable directions regarding access to, and use of, the AIRE Service provided to the Customer from time to time by AIRE including any procedures imposed by AIRE to prevent unauthorised access to the AIRE Service;
(b) permit AIRE, or its agent, at all reasonable times, and at AIRE’s expense, to verify that the Customer’s use of the AIRE Service is within the terms of this Agreement; and
(c) ensure that all Client Data uploaded by the Customer is complete and accurate on each day during the Licence Period and thereafter whilst the Agreement remains in place.
6.4 The Customer must take all reasonable precautions to ensure the security of access to the AIRE Service at the Location and must not, under any circumstances, allow any third party or any person other than as Authorised User to access or use the Product or the AIRE Service for any purpose without the prior written consent of AIRE.
6.5 The Customer agrees to inform AIRE immediately if it becomes aware of any unauthorised use of the Product or the AIRE Service by any person.
- AVAILABILITY OF AIRE SERVICE
7.1 AIRE will use its best endeavours to:
(a) maintain the reliability and efficiency of the AIRE Service subject to:
(i) scheduled downtime for Maintenance Services or other interruptions to service specified in Clause 8.1; and
(ii) unscheduled interruptions to the availability of the AIRE Service due to factors beyond the control of AIRE including any actions of the Customer or third parties, including telecommunications providers.
7.2 The Customer will communicate any difficulties encountered with the AIRE Service to AIRE as soon as is reasonably practicable following detection.
7.3 The Customer acknowledges that the AIRE Service will not be error free and that the speed of response from the AIRE Service is dependant on the Customer’s internal connection and performance of the AIRE Service may be affected by such external factors as speed of connection and infrastructure bandwidth from the Customer’s equipment to the Server and the number of users on the connection.
7.4 AIRE takes no responsibility for any delay, malfunction, non-performance or other degradation of the AIRE Service caused by or resulting from any alteration, modifications or amendments to the AIRE Service requested by the Customer.
7.5 In the event of total systems failure resulting in the disruption of service to the Internet from the Server, AIRE will endeavour to repair and reinstate the AIRE Service within twenty four (24) hours of detection depending on the severity of the failure.
7.6 The Customer acknowledges and agrees that AIRE will not be responsible for the back-up of any Client Data or applications stored or used in connection with the AIRE Service unless specifically and expressly included in the AIRE Service.
- SUSPENSION OF ACCESS
8.1 Subject to Clause 8.2, AIRE may suspend access to the AIRE Service:
(a) to carry out the Maintenance Services;
(b) to carry out modifications or updates to the AIRE Service, including the uploading of Product Updates;
(c) to preserve data and integrity;
(d) in the event of a security breach; or
(e) if the Server malfunctions.
8.2 AIRE also reserves the right to terminate or suspend access to the AIRE Service to the Customer indefinitely and without refund or compensation in the event that the Customer uses the AIRE Service, or appears to AIRE to be intending to use the AIRE Service, in a manner reasonably deemed inappropriate by AIRE or which breaches the terms of this Agreement.
8.3 Suspension of access to the AIRE Service will continue until the Maintenance Services, modifications or updates are carried out, the problem or breach is rectified, or until otherwise agreed in writing between the parties.
8.4 AIRE will not be liable to the Customer, its officers, employees, contractors or agents or any third party whatsoever as a result of taking the action referred to in this Clause 8 where such action is taken on a view which is formed on a reasonable basis by AIRE.
- PRODUCT UPDATES
9.1 AIRE may, in its sole discretion, make enhancements, updates or new releases of the Product available through the AIRE Service from time to time in order to, inter alia, enhance or improve the functionality or operation of the Product or comply with legislative requirements (‘Product Updates’).
9.2 AIRE will upload any Product Updates onto the Server for access and use by the Customer through the AIRE Service as soon as reasonably practicable following the creation and general release of such Product Updates by AIRE.
9.3 The Customer acknowledges that additional downtime for the AIRE Service over and above the levels specified in Clauses 7 and 8 of this Agreement may apply in the event that AIRE is required to upload Product Updates.
9.4 The Product Updates will be provided to the Customer through the AIRE Service free of charge subject to all Fees having been fully paid by the Customer for the Licence Period or current Renewal Period as the case may be.
9.5 Use of the Product Updates by the Customer through the AIRE Service will be subject to the same terms and conditions as use of the Product under this Agreement.
- MAINTENANCE SERVICES
10.1 AIRE will perform such routine maintenance services as it considers necessary to ensure the proper functioning of the AIRE Service during the Licence Period and any Renewal Period including:
(a) the operation and general maintenance of the Server;
(b) reviewing the Product and the AIRE Service on a regular basis and applying Product Updates where appropriate; and
(c) performing regular security and maintenance checks for evidence of security breaches, software malfunction and resource limit warnings.
10.2 The Customer acknowledges that it is solely responsible for the support and maintenance of any computer hardware and non-AIRE software operated by the Customer.
11.1 AIRE will provide the Authorised Users with basic technical support in relation to the Product and the AIRE Service during the Licence Period and any Renewal Period (‘Technical Support’).
11.2 The Technical Support is available to the Authorised Users by logging enquiries through the AIRE website located at www.getaire.com.au or e-mailing email@example.com upon receipt of which, AIRE will use its best endeavours to provide a response to the Customer within two (2) Business Days.
11.3 When reporting faults to AIRE, the Authorised Users must provide an accurate description of the problems encountered including error messages and an accurate impact of the problem in order to facilitate the necessary corrective action by AIRE.
- ADDITIONAL SERVICES
12.1 The Customer may, from time to time, request in writing that AIRE provide the Customer with other services in relation to the Product or the AIRE Service which may be offered by AIRE including, without limitation, auditing, data entry, training in the use of the Product or general IT services in relation to the Product or the AIRE Service (‘Additional Services’).
12.2 Any provision of Additional Services by AIRE to the Customer will be at AIRE’s sole discretion and subject to a separate written agreement being entered into between the parties in relation to the provision of the Additional Services and the fees payable by the Customer to AIRE.
- PAYMENT OF FEES
13.1 The Customer will pay the Fees and any other fees due and payable to AIRE under this Agreement in the manner specified or as otherwise invoiced to the Customer by AIRE from time to time.
13.2 The Customer acknowledges and agrees that:
(a) the Fees are payable in respect of the use of the Product and the AIRE Service by the Customer;
(b) the Fees apply only in respect of the Licence Period; and
(c) in the event that the Licence Period is renewed in accordance with Clause 19.1, AIRE reserves the right to increase the Fees for any Renewal Period and will invoice the Customer for payment of the new Fees prior to the commencement of each Renewal Period or as otherwise agreed between the parties in writing.
13.3 Where applicable, GST and any other taxes, duties or levies will be paid by the Customer at the then prevailing rate.
13.4 Where payment of any part or the whole of the Fees is to be made before the Customer may access the AIRE Service, AIRE may withhold access to the Customer until such payments have been made in full.
13.5 If any sum payable under this Agreement is in arrears for more than thirty (30) days, AIRE reserves the right to charge interest on such overdue sum on a daily basis from the original due date until paid in full.
13.6 The Customer will pay the fees to AIRE by direct debit through a credit card, upon receipt of an invoice from AIRE.
- CONFIDENTIAL INFORMATION
14.1 A party shall treat all Confidential Information disclosed by the other party as confidential and shall not, without the prior written consent of the disclosing party:
(a) disclose or permit the same to be disclosed to any third party (except to the extent required by law, a stock exchange or in connection with legal proceedings relating to this Agreement, but only after first notifying the other party to give it an opportunity to protect the Confidential Information) and agree to take all reasonable steps to maintain the confidentiality of the Confidential Information; or
(b) use the Confidential Information for any purpose other than that for which it is given.
14.2 It shall be the responsibility of each party to ensure that:
(a) Confidential Information is only disclosed to those of its officers, employees or contractors in their capacities as such on a strictly need to know basis and have such officers, employees and contractors comply with the obligations of confidentiality imposed upon them by this Clause 14 as if personally bound by such obligations as though parties to this Agreement; and
(b) the officers, employees or contractors referred to in Clause 14.2(a) execute such documentation as required by the owner of the Confidential Information acknowledging their obligations of confidentiality, which shall provide that the obligations of confidentiality survive notwithstanding that any of the above mentioned officers, employees or contractors cease to be employed or engaged by the respective parties.
14.3 The confidentiality obligations under this Clause 14 shall survive the expiry or termination of this Agreement.
- INTELLECTUAL PROPERTY RIGHTS
15.1 Intellectual Property Rights means:
(a) patents, copyright, circuit layout rights, designs, trademarks and confidential know-how; and
(b) any application or right to apply for any of the rights referred to in paragraph 15.1(a).
15.2 AIRE owns and retains, and the Customer acknowledges that AIRE owns and retains all Intellectual Property Rights in:
(a) the Product, the AIRE Service and the Product Updates and any copies thereof including, without limitation, any modifications or improvements to, or customisation of, the Product or the AIRE Service carried out by AIRE, the Customer or any third party pursuant to this Agreement excluding any third party materials used in the Product; and
(b) the Documentation and any copies thereof.
15.3 Except as otherwise permitted by the Copyright Act 1968 (Cth) or agreed to in writing by AIRE, the Customer must not reverse compile, disassemble, remove, release, disclose, reveal, copy, extract, modify or otherwise reverse engineer all or any part of the Product or the AIRE Service in any way for itself or for others or permit such act to be done.
15.4 The Customer warrants that it will:
(a) follow all reasonable instructions given by AIRE from time to time regarding AIRE’s Intellectual Property Rights; and
(b) not do anything to diminish the value of, or contest in any way, AIRE’s Intellectual Property Rights.
15.5 The Customer agrees that it will inform AIRE immediately if the Customer becomes aware that any Intellectual Property Rights of AIRE are being infringed, or may be infringed, by any third party.
15.6 AIRE need not initiate action against infringers and may settle any dispute by means it determines to be effective and in the best interests of AIRE, but where AIRE, in its sole discretion, determines to initiate action against an infringer, the Customer will cooperate with AIRE to the greatest extent possible at AIRE’s expense.
15.7 Subject to clause 15.8, the Customer grants to AIRE a non-exclusive, irrevocable, global licence to exercise the Intellectual Property Rights in any Client Data, including to use and modify a copy of the Client Data.
15.8 The licence granted under clause 15.7 includes the right to sublicense to third parties.
- CLIENT DATA WARRANTY
16.1 The Customer represents and warrants and it is a condition of this Agreement, that the Customer has obtained permission from all relevant individuals for the use and disclosure of all Personal Information that forms part of the Client Data, by AIRE and its third party service providers.
16.2 The Customer represents and warrants that use of the Customer Data by AIRE, and its third party service providers, will not infringe any third party’s Intellectual Property Rights.
- PRODUCT OPERATION
17.1 While all due care has been taken, AIRE does not warrant that the operation of the Product will be uninterrupted or error free or that any third party components of the Product, will be accurate or error free or that the Product will be compatible with any application, program or software not specifically identified as compatible by AIRE.
17.2 AIRE’s obligation and the Customer’s exclusive remedy during the Licence Period and any Renewal Period are limited, in AIRE’s absolute discretion, to:
(a) AIRE, at its own expense, using all reasonable endeavours to rectify any non-conformance of the Product by repair (by way of a patch, work around, correction or otherwise) within a reasonable period of time; or
(b) a refund of the Fees paid for the latest license period, if, in AIRE’s reasonable opinion, it is unable to rectify such non-conformance within a reasonable timescale or at an economic cost, whereupon this Agreement will terminate.
17.3 The Customer acknowledges and accepts that it is the Customer’s sole responsibility to ensure that:
(a) the facilities and functions of the Product and the AIRE Service meet the Customer’s requirements; and
(b) the Product accessed via the AIRE Service is an appropriate means to assist the Customer with its legislative compliance in the Customer’s jurisdiction, and AIRE does not purport to provide any legal, taxation or accountancy advice by providing the Service under this Agreement.
17.4 AIRE will not be liable for any failure of the Product accessed via the AIRE Service to provide any function not described in the Documentation or any failure attributable to:
(a) any modification to the Product or the Equipment other than by AIRE;
(b) accident, abuse or misapplication of the Product or the AIRE Service by the Customer;
(c) use of the Product or the AIRE Service with other software or equipment without AIRE’s written consent;
(d) use of other than the latest, unaltered current release of the Product as provided by AIRE through the AIRE Service; or
(e) use other than in accordance with this Agreement.
17.5 If, upon investigation, a problem with the Product or the Customer’s access to the AIRE Service is determined not to be AIRE’s responsibility, AIRE may invoice the Customer immediately for all reasonable costs and expenses incurred by AIRE in the course of or in consequence of such investigation.
- IMPLIED TERMS
17.1 Subject to Clause 17.2, any condition or warranty which would otherwise be implied in this Agreement by law is hereby excluded.
17.2 Where legislation implies into this Agreement any condition or warranty which cannot be excluded at law(including the Competition and Consumer Act 2010 (Cth)), AIRE’s liability for any breach of such condition or warranty will be limited, at AIRE’s sole discretion to one or more of the following:
(iii) the payment of the cost of replacing such goods or of acquiring equivalent goods; or
(ii) the payment of the cost of having the services supplied again.
- LIMITATION OF LIABILITY AND INDEMNITY
18.1 The Customer acknowledges and agrees that:
(a) the Product and the AIRE Service do not of themselves constitute, and are no substitute for, the Customer’s own identification of, and compliance with, applicable laws and regulations in the Customer’s jurisdiction;
(b) AIRE cannot and does not provide any warranty regarding the ability of the Product or the AIRE Service to ensure the Customer’s compliance with all applicable laws and regulations in the Customer’s jurisdiction; and
(c) the Customer is entirely responsible for:
(i) its access to, and use of, the Product and the AIRE Service in accordance with the terms of this Agreement;
(ii) its use of the Product accessed through the AIRE Service including:
(A) input of parameters, data or information into the Product;
(B) back-up of all data and information used in relation to the Product; and
(C) interpretation or use of, or reliance on, any data, information, reports, labels or any other output of the Product,
(iii) its identification of, and compliance with, all applicable laws and regulations in the Customer’s jurisdiction; and
(iv) the consequences of any use of the Product and the AIRE Service by the Customer.
18.2 Except in relation to liability which is not excludable at law, AIRE is under no liability to the Customer in respect of any loss or damage (including consequential loss or damage) which may be suffered or incurred or which may arise directly or indirectly in respect of the Customer’s access to, or use of, the Product and the AIRE Service or any other goods or services supplied pursuant to this Agreement including (without limitation) loss of production, loss of or corruption to data, loss of profits or of contracts, loss of operation time and loss of goodwill, or in respect of a failure or omission on the part of AIRE to comply with its obligations under this Agreement.
18.3 Without limiting the generality of any other provision of this Agreement, AIRE will not be liable to the Customer in respect of any loss or damage (including consequential loss or damage) which may be suffered or incurred by the Customer or any third party or which may arise directly or indirectly in respect of:
(a) access to, or use of, the Product and the AIRE Service by the Customer;
(b) any defect, malfunction, error, loss, delay or breakdown in the transmission, reception, use or storage of information or records obtained by the Customer from the Product and the AIRE Service;
(c) any suspension of access to the Product or the AIRE Service by AIRE pursuant to this Agreement;
(d) delays in transmission, communications failures or internet access difficulties caused by third party service providers beyond AIRE’s control;
(e) introduction of viruses affecting the functioning of the AIRE Service;
(f) malfunction of third party equipment or software; or
(g) any other act or omission by any third party which affects the ability of the Customer to access, or use, the Product or the AIRE Service.
18.4 Subject to Clause 18.5, the Customer warrants that it has not relied on any representation made by AIRE which has not been expressly stated in this Agreement, or upon any descriptions or specifications contained in any document including catalogues or publicity material produced by AIRE.
18.5 The Customer acknowledges that to the extent that AIRE has made any representation which is not otherwise expressly stated in this Agreement, the Customer has been provided with an opportunity to independently verify the accuracy of that representation.
18.6 The Customer will at all times indemnify and hold harmless AIRE and its officers, employees and agents in respect of any third party claim for any injury, loss, damage or expense occasioned by or arising directly or arising directly or indirectly from:
(a) a breach by the Customer of its obligations under this Agreement;
(b) any wilful, unlawful or negligent act or omission of the Customer; or
(c) or any alleged or actual infringement of a third party’s Intellectual Property Rights or other right in connection with the Client Data or the AIRE Service.
- LICENCE PERIOD
19.1 This Agreement will commence on the Commencement Date and continue for the period indicated in the proposal and each month thereafter until termination in accordance with this Agreement.
20.1 Either party may terminate this Agreement with immediate effect by giving notice to the other party if:
(a) the other party breaches any of its obligations under this Agreement capable of remedy and fails to remedy that breach within fourteen (14) days after receiving notice requiring it to do so; or
(b) the other party breaches any of its obligations under this Agreement incapable of remedy; or
(c) any event referred to in Clause 20.2 occurs in relation to the other party.
20.2 Each party will notify the other immediately if:
(a) it ceases to carry on business;
(b) it disposes of the whole or any part of its assets, operations or business other than in the ordinary course of business;
(c) any step is taken to enter into any arrangement between that party and its creditors;
(d) any step is taken by a mortgagee to enter into possession or dispose of the whole or any part of its assets or business; or
(e) any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a liquidator, a provisional liquidator of the whole or any part of its assets or business.
20.3 If for a continuous period of 90 days there are no active Authorised Users of the Customer who can be assigned scheduled work under the Product then AIRE may elect to terminate this Agreement and delete any data associated with the Customer.
20.4 If the Customer fails to pay its monthly Fees for two (2) months or more then AIRE may terminate this Agreement forthwith.
20.5 Upon expiration of the Licence Period, either party may terminate this Agreement upon giving 30 days written notice to the other party.
- ACTION ON TERMINATION
21.1 Upon the expiry or termination of this Agreement:
(a) the non-exclusive licence granted to the Customer to use the Product and the Documentation will immediately terminate;
(b) AIRE will immediately terminate the Customer’s connection to the AIRE Service and cease providing all services to the Customer under this Agreement including without limitation the Product Updates, the Maintenance Services, the Technical Support; and
(c) the Customer will immediately:
(i) cease to access and use the Product and the AIRE Service;
(ii) return the Documentation and any copies of the Documentation to AIRE or otherwise deal with same in the manner specified by AIRE in writing;
(iii) cease to use all Intellectual Property Rights of AIRE; and
(iv) pay all sums owing to AIRE pursuant to this Agreement, including, without limitation, the total Fees owing for the current Licence Period or Renewal Period as the case may be and all Addition Fees.
(d) AIRE may, at any time after 90 days from termination, delete the Customer’s data from the Service.
21.2 Termination of this Agreement for any reason will not affect the accrued rights or remedies of either party.
- FORCE MAJEURE
22.1 Neither party will be liable to the other for delay or failure to perform its obligations under this Agreement if such delay or failure is caused by declaration of war, strikes, acts of God or the public enemy, riots, interference by military authorities, compliance with Government laws and regulations, delays in transit, inability to secure necessary governmental priorities or any fault beyond its reasonable control or without its fault or negligence.
- DISPUTE RESOLUTION
23.1 In the event of a serious dispute arising between the parties out of or in connection with this Agreement (‘Dispute’), either party may issue a ‘Dispute Notice’ to the other party and, if it does so then the parties must use their best endeavours to try to settle such dispute amicably by negotiation within 14 days of the issuance of the Dispute Notice or within any agreed extended period (‘Negotiation Period’).
23.2 If the Dispute cannot be settled within the Negotiation Period, then either party may notify the other within 7 days after the end of the Negotiation Period that it requires that the parties attempt to settle the Dispute by mediation and the parties must proceed to such mediation as soon as reasonably possible. Such mediation will be conducted in Brisbane, Queensland in accordance with The Institute of Arbitrators & Mediators Australia Mediation and Conciliation Rules published by the Institute of Arbitrators and Mediators Australia or any replacement rules from time to time and will be conducted by a mediator independent of the parties or, failing agreement between the parties on such a mediator, by a person appointed by the Chair of LEADR or his or her nominee.
23.3 If the Dispute is not resolved through the procedures set out above the parties will thereafter be free to agree to arbitration within 7 days following mediation or, if they do not so agree, then either party may proceed to litigate the matter.
24.1 The Customer may not sub-licence, transfer or assign any of its rights or obligations under this Agreement without the prior written consent of AIRE.
25.1 AIRE may sub-contract the performance of any or all of its obligations under this Agreement.
If any part of this Agreement is deemed unenforceable, then if the provision would not be illegal or unenforceable if a word or words were omitted, that word or those words are severed or in any other case the provision is severed and the rest of this Agreement will continue to be legal and enforceable.
The failure of a party at any time to insist on performance of any obligation under this Agreement of the other party is not a waiver of its right:
(a) to insist on performance of, or claim damages for breach of, that obligation unless that party acknowledges in writing that the failure is a waiver; and
(b) at any other time to insist on performance of that or any other obligation of the other party under this Agreement.
(a) Each party notifying or giving notice under this Agreement will do so:
(i) in writing;
(ii) addressed to the address of the recipient specified in the Customer’s AIRE Account, as altered by notice given in accordance with this clause; and
(iii) hand delivered or sent by prepaid post to that address or sent by email to the other party’s email address as specified in the Customer’s AIRE Account.
(b) A notice given in accordance with Clause 26.3(a) is deemed received:
(i) if hand delivered, on the date of delivery;
(ii) if sent by prepaid post, three (3) days after the date of posting if posted within Australia and ten (10) days after the date of posting if posted internationally;
(iii) if sent by facsimile transmission, on the day the transmission is sent (but only if the sender has a confirmation report specifying a facsimile number of the recipient, the number of pages sent and the date of transmission).
AIRE may vary any of the terms and conditions of this Agreement at any time by giving thirty (30) days written Notice to the Customer. That Notice may be comprised by a copy of the terms and conditions as varied. Unless otherwise stated in the Notice, the variations shall take effect five (5) days after the Notice is given.
- ENTIRE AGREEMENT
27.1 This Agreement is the entire agreement between the parties in relation to the subject matter of this Agreement and supersedes any prior agreement, oral or written and any other communications between the parties in relation to the subject matter of this Agreement.
- LEGAL COSTS & STAMP DUTY
28.1 AIRE will pay the costs of preparation of this Agreement and stamp duty, if any, payable on this Agreement.
- GOVERNING LAW
29.1 This Agreement is made in the State of Queensland, Australia and is to be governed solely by the laws of the State of Queensland. Any dispute arising from the terms of this Agreement or its execution shall be brought within a competent Court within the State of Queensland and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of Queensland.