Terms of Use

Important please read carefully

The following terms and conditions (Terms) shall form part of the agreement (Agreement) between Everway Opco PTY LTD (Everway) who is a company incorporated and registered in Australia, with a company number 608 838 213, whose registered office is at Suite G.6, Brisbane Technology Park, 35 Miles Platting Road, Eight Mile Plains in the State of Queensland, Australia, and the person or entity who has signed a Quotation (together with its Affiliates, the Customer). By agreeing to Everway's Quotation or otherwise accessing or using the Product(s) or the Support, the Customer acknowledges that it has read, understands and agrees to be bound by these Terms and the Quotation.

Everway and the Customer shall be collectively known as the "Parties" or individually as a "Party".

1. Definitions

1. The defined terms are set out in clause 18 of these Terms.

2. Introduction

2. Everway agrees to provide the Customer with the Product(s) (and, if agreed, the associated Support) as set out in the Quotation. The Quotation must be in writing and reference these Terms to be valid. The Quotation shall be governed by these Terms, and any contrary or additional terms ("Competing Terms") are deemed null and void and of no effect, unless agreed by ticking the "accept" box prior to acceptance of the Quotation (the "Special Conditions").

3. If, notwithstanding clause 2.1, any Competing Terms should be deemed to have any operative effect, then in the event of any inconsistency between these Terms and the Quotation on the one hand, and any such Competing Terms on the other, the Parties agree that these Terms will prevail to the extent of that inconsistency.  

4. In the event of any inconsistency between these Terms and the Quotation on the one hand, and any Special Conditions on the other, the Parties agree that the Special Conditions will prevail to the extent of that inconsistency.

3. Term and Termination

5. The term of this Agreement is effective from and shall be in force: (i) from the Commencement Date specified in the Quotation until terminated in accordance with this clause 3; or (ii) where the Quotation specifies a fixed term, the duration specified therein (as applicable) (the Term).  Where the Quotation specifies a fixed term, Everway will provide the Customer with notification, at least 30 days prior to expiration of that fixed term, that the Agreement shall auto renew for successive twelve (12) month periods (each a Renewal Period) unless the Customer provides written notice of termination at least 14 days prior to the end of the Term or the then current Renewal Period (as applicable).

6. Without affecting any other right or remedy available to it, either Party may terminate this Agreement with immediate effect by giving written notice to the other Party if:

1. the other Party is in material breach of the Agreement and fails to cure such breach within thirty (30) days of receipt of written notice. For clarity, material breach occurs when:

2. (i) Everway fails to provide the Product (or, if applicable, the Support) at all or within ninety (90) days of the Commencement Date; or

3. (ii) the Customer fails to pay the Product Fees or any other undisputed invoices on the due date for payment and remains in default not less than 45 days following the due date for payment; or

4. the other Party suffers an Insolvency Event.

7. In addition to clause 3.2, Everway may suspend the Customer's access to the Product(s) and/or terminate this Agreement with immediate effect, if the Customer's use of the Product(s) is at any time in breach of clauses 4, or in a manner that is otherwise unlawful. 

8. Everway may discontinue:

5. a functionality of a Product from time to time provided that such discontinuation does not result in a material detrimental reduction to the Customer's use of the Products to which it is subscribed to (as set out in the Quotation); and

6. a Product or a material functionality of a Product from time to time provided that prior to any discontinuation Everway will provide at least twelve (12) months' advance notice to the Customers that may be affected pursuant to this clause 3.4, except that this notice will not be required if the twelve (12) month notice period: (i) poses a security or IPR risk to the Product, (ii) is materially economically or technically burdensome or (iii) would cause Everway to contravene any applicable law. In the circumstances set out in (i), (ii) and (iii), the Customer shall be given no less than 2 months' advance notice of the discontinuation. On receipt of a notice of discontinuation, the Customer may: (i) elect to terminate this Agreement by giving Everway at least 30 days' notice from the date of receipt of the notice of discontinuation; or (ii) alternatively, notify Everway in writing that it wishes to accept the discontinuation and continue with this Agreement.

9. On termination of this Agreement for any reason: (a) all licences granted under this Agreement, and Support provided by Everway, shall immediately terminate; (b) each Party shall return and make no further use of Confidential Information belonging to the other Party; (c) all undisputed Product Fees committed or owed by the Customer to Everway as at the effective date of termination will become immediately due and payable; (d) Everway shall retain and/or destroy or otherwise dispose of any of the Customer Data in its possession in accordance with its data retention policy (a copy of which the Customer acknowledges as having been received, read and understood); and (e) any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination shall not be affected or prejudiced.

10. The following provisions shall survive any termination of this Agreement: clauses 3.5, 6, 10, 11, 12, 13, 14, 15 and 17.

4. Licence

11. Subject to the terms and conditions of this Agreement, Everway hereby grants to the Customer a non-exclusive, non-transferable right and licence, without the right to grant sublicences, to permit the Authorised Users to use the Product(s) specified in the Quotation and/or any Documentation during the Term solely for the Customer's internal business operations.

12. The restrictions set out in these Terms represent conditions of the Customer's licence. Accordingly, the Customer hereby agrees that: (i) the maximum number of Authorised Users that it authorises to access and use the Product(s) shall not exceed the number of Authorised Seats it has purchased from time to time; (ii) it will procure that each of its Authorised Users shall keep, on an individualised basis, a secure password for their independent use of the Product(s) (if applicable), that such password (if applicable) shall be changed at regular intervals and in accordance with any security requirements that are imposed by the Customer and that each Authorised User shall keep their password confidential; and (iii) it shall permit Everway or Everway's designated auditor to audit the Customer's data processing facilities to confirm compliance with these Terms (Audit). If an Audit reveals that the Customer has underpaid Product Fees to Everway, then without prejudice to Everway's other rights, the Customer shall pay to Everway an amount equal to such underpayment as calculated in accordance with the prices set out in the relevant Quotation within 10 Business Days of the date of the relevant Audit.

13. The Customer shall, and shall procure its Authorised Users shall not, access, store, distribute or transmit any Viruses, or any material during the course of its use of the Products that:

7. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

8. facilitates illegal activity;

9. depicts sexually explicit images;

10. promotes unlawful violence;

11. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or

12. is otherwise illegal or causes damage or injury to any person or property,

and Everway reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's access to any material that breaches the provisions of this clause.

14. The Customer shall not (except as may be allowed by any applicable law which is incapable of exclusion by agreement between the Parties and except to the extent expressly permitted under this Agreement): (a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Product(s) in any form or media or by any means; de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Product(s); (b) access all or any part of the Product(s) or any IPR subsisting in any of the Product(s), in order to build a product or service which competes with the Product(s); (c) sub-license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Product(s) available to any third party except the Authorised Users, (d) attempt to obtain, or assist third parties in obtaining, access to the Product(s), other than as provided under this 4; and/or (e) introduce or permit the introduction of, any Virus into Everway's network and information systems.

15. The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Product(s) and, in the event of any such unauthorised access or use:

16. promptly notify Everway. Such notice is to include all particulars of the unauthorised access or use, including any potential impacts it may have on Everway; and

17. do all things necessary and undertake any action required by Everway in order to rectify any issues caused as a result of such unauthorised access or use.

5. Support

18. Everway shall provide Support to the Customer in accordance with Schedule 1.

6. Data Protection

19. For the purposes of this clause 6, the terms Commissioner, controller, data subject, personal data, breach, processor and processing, shall have the meaning given to them in the UK GDPR, and supervisory authority shall have the meaning given to it in the EU GDPR.

20. Each Party shall comply with all applicable requirements of the Applicable Data Protection Laws. This clause 6 is in addition to, and does not relieve, remove or replace, a Party's obligations or rights under the Applicable Data Protection Laws.

21. The Parties have determined that, for the purposes of Applicable Data Protection Laws and processing Customer Personal Data, the Customer is the Controller and Everway is the Processor, and Everway are a Controller in relation to any processing described in our privacy and cookie policies located at www.Everway.com. Our Data Protection Addendum (DPA) EverwayDPA sets out the scope, nature and purpose of processing by Everway, the duration of the processing and the types of personal data and categories of data subject. For clarity, the DPA shall form part of this Agreement.

22. If the determination in clause 6.3 changes, the Parties shall use all reasonable endeavours to make any changes that are necessary to this clause 6 and the DPA.

7. Data Breach

23. The Customer acknowledges that in the event of an Eligible Data Breach in respect of Customer Personal Data, occurring within its control or the control of any of its Authorised Users, or as a result of the Customer's negligence or failure to comply with any of its obligations under this Agreement, the Customer will be responsible for:

13. undertaking a reasonable and expeditious assessment of a known data breach or a suspected data breach, including whether it is likely to cause serious harm to any individual affected;

14. preparing a compliant data breach notification statement as required under Australian Privacy Laws;

15. all notifications to the affected individuals, the other party and the Office of the Australian Information Commissioner (the “Australian Commissioner”);

16. otherwise complying with any obligations or directions from the Australian Commissioner under the Privacy Act; and

17. promptly notifying Everway of any event that may be considered an Eligible Data Breach in respect Customer Personal Data, under this document (despite section 26WF of the Privacy Act).

24. On request from Everway, the Customer must detail in writing, the actions have been taken in respect of clause 7.1. If Everway, in its sole discretion, determines that further action is required to address the requirements of the Privacy Act in respect of an Eligible Data Breach, then the Customer agrees and acknowledges that:

18. it will provide any assistance or access that may be required by Everway to give effect to any further action that determines is required;

19. Everway may direct the Customer to perform any reasonable action in respect of clause 7.1 and the Customer will comply with such direction as soon as practicable; and

20. the Customer will be solely responsible for the cost of taking any action directed by Everway or giving any assistance or access to Everway to do the same.

25. The Customer must ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Customer Personal Data and against accidental loss or destruction of, or damage to, that Customer Personal Data.

26. The Customer indemnifies Everway against any and all liabilities, costs, expenses, damages, losses (including but not limited to any claims, fines, penalties and reasonable legal costs and all other reasonable professional costs and expenses) suffered or incurred by Everway, arising out of an Eligible Data Breach (including claims or actions by an individual or that of the Australian Commissioner and any penalties for non-compliance with the Eligible Data Breach requirements under the Privacy Act) that was caused or contributed to by any:

21. breach by the Customer of; or

22. negligent, unlawful or wilfully wrong act or omission of Customer in respect to,

its obligations under this clause 7.

8. Everway's obligations

27. Everway warrants that the Product(s) will perform materially in accordance with the applicable Documentation and any Support will be performed with reasonable skill and care.

28. The warranty at 8.1 shall not apply to the extent of any non-conformance which is caused by use of the Product(s) contrary to Everway's instructions, or modification or alteration of the Product(s) by any party other than Everway or Everway's duly authorised contractors or agents.

29. If, during the Term, (a) Everway is promptly notified (in writing) by the Customer that a Product is not conforming with the warranty at clause 8.1;  and (b) Everway confirms the issue and that the relevant Product does not meet any of the conditions set out in clause 8.2, then, as Everway's entire liability and the Customers sole remedy for such breach of warranty, Everway shall (at Everway's sole option and expense) correct, repair or replace the Product within a reasonable time period or provide or authorise a refund of any pre-paid, unused Product Fees, in which case the Agreement shall terminate.

30. Everway does not warrant that: (a) the Customer's use of the Product(s) will be uninterrupted or error-free; (b) that the Product(s), Documentation and/or the information obtained by the Customer through the Support services will meet the Customer's requirements (whether disclosed to Everway or not); or (c) the Product(s) will be free from Viruses (provided that Everway has taken reasonable steps including using industry standard anti-virus software to protect the Product(s) against Viruses). Furthermore, Everway shall not be held responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Product(s) and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

31. This Agreement shall not prevent Everway from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.

32. Everway warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.

33. Everway shall perform daily back-ups of the Customer Data. In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy against Everway shall be for Everway to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Everway. Everway shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by Everway to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable.

34. For the avoidance of doubt, nothing in this clause 8 excludes, restricts or modifies any statutory guarantee, right or remedy conferred on the Customer by the Australian Consumer Law (in the Competition and Consumer Act 2010 (Cth)) or any other applicable law which cannot be excluded, restricted or modified.

9. Customer's obligations

35. The Customer shall:

23. provide Everway with all necessary: (i) co-operation in relation to this Agreement; and (ii) access to such information as may be required by Everway in order to provide the Product(s), including but not limited to Customer Data, security access information and configuration services;

24. without affecting its other obligations under this Agreement, comply with all applicable laws and regulations with respect to its activities under this Agreement;

25. carry out all other Customer responsibilities set out in these Terms in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, the Customer acknowledges and agrees that Everway may adjust any agreed timetable or delivery schedule as reasonably necessary;

26. ensure that the Authorised Users use the Product(s) in accordance with the terms of this Agreement and shall be responsible for any Authorised User's breach of this Agreement;

27. obtain and shall maintain all necessary licences, consents, and permissions necessary for Everway, its contractors and agents to perform their obligations under this Agreement, including without limitation the Product(s); and

28. ensure that its network and systems comply with the relevant specifications provided by Everway from time to time.

10. Customer Data

36. The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data or Personal Information and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.

37. Without prejudice to the foregoing, the Customer expressly acknowledges that Everway does not create or validate any Customer Data processed or used in conjunction with the Product(s) and/or any associated outputs created or generated by the Customer in using, or via, the Products (Outputs). The Customer assumes sole responsibility for any results obtained from the use of the Products, Support and/or for any conclusions drawn from such use, and Everway disclaims all liability for any loss or damage caused by errors or omissions in any Outputs.

11. Product Fees and Payment

38. The Product Fees are stated in the Quotation. The Customer shall pay the Product Fees to Everway in accordance with this 11 and the Quotation. Subject to applicable law, no refunds will be made except as provided in clause 8.3 and clause 14.4. Product Fees shall be payable in the currency as set out in the Quotation and are exclusive of applicable sales tax (including value added or goods and services tax), which shall be added to Everway's invoice(s) at the appropriate rate.

39. The Customer shall on the Commencement Date provide to Everway valid, up-to-date and complete payment details and any other relevant valid, up-to-date and complete contact and billing details and Everway shall:

29. invoice or bill (as applicable) the Customer on the Commencement Date for the Product Fees payable in respect of the Term; and

30. subject to 3.1:

1. bill the Customer using the relevant payments details on; or

2. invoice the Customer at least 30 days prior to,

each anniversary of the Commencement Date for the Product Fees payable in respect of the next Renewal Period (as applicable).

40. If Everway has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of Everway:

31. Everway may, without liability to the Customer, disable the Customer's password, account and access to all or part of the Product(s) and Everway shall be under no obligation to re-activate access to any or all of the Product(s) while the relevant invoice(s) remain unpaid; and

32. interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current target cash rate of the Reserve Bank of Australia (or at 4% a year for any period when that target rate is at or below 0%), commencing on the due date and continuing until fully paid, whether before or after judgment.

41. Everway shall increase the Product Fees in line with the then current prices of Everway and its suppliers, including (without limitation) on an annual basis at the point of renewal by: (i) automatically increasing Product Fees by 5% for a non-profit "Education" Customer and (ii) having the right to increase Product Fees by up to 10% for a "Workplace" Customer (as determined by Everway at its sole discretion), provided Everway serves the relevant Customer with 30 days' prior written notice of such revised Product Fees (the Price Escalation Notice).

12. IPR Ownership

42. The Customer acknowledges and agrees that Everway and/or its licensors own all existing and future IPR in the Product(s), Documentation and any Support provided (together, the "Everway IP"). Except as expressly stated herein, this Agreement does not grant the Customer any rights or licences to, under, or in, the Everway IP. The Customer agrees to:

33. inform Everway promptly of any infringement of the Everway IP that comes to the Customer's attention, irrespective of who the infringing party is. Such notice is to include all particulars of the infringement, including any potential impacts it may have on Everway; and

34. do all things necessary and undertake any action required by Everway in order to rectify any issues caused as a result of such infringement.

43. The Customer warrants that the Customer's use of the Products by the Customer or its Authorised user does not and will not infringe the IPR of any third party.

44. Everway confirms that it has or is entitled to all the rights associated with or attached to the Everway IP to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.

13. Confidentiality

45. Each Party shall keep the other Party's Confidential Information confidential and take all reasonable steps to ensure that the other Party’s Confidential Information to which it has access is not disclosed or distributed by its Representatives or otherwise in violation of the terms of this Agreement

46. Subject to clause 13.5, neither Party shall disclose the other Party's Confidential Information to any third party unless the other Party consents in writing to the disclosure of such Confidential Information and that Party procures that such third party enters into a confidentiality agreement on terms equivalent to those contained in this Agreement.

47. Subject to this clause 13, each Party shall only use the other Party's Confidential Information disclosed to it for the purposes of this Agreement including the purpose of exercising or performing its rights and obligations under this Agreement.

48. The provisions of this clause shall not apply to any Confidential Information that: (a) is or becomes generally available to the public (other than as a result of its disclosure by the receiving Party or its Representatives in breach of this clause), (b) was available to the receiving Party on a non-confidential basis before disclosure by the disclosing Party, (c) was, is or becomes available to the receiving Party on a non-confidential basis from a person who, to the receiving party's knowledge, is not bound by a confidentiality Agreement with the disclosing Party or otherwise prohibited from disclosing the information to the receiving Party; (d) the Parties agree in writing is not confidential or may be disclosed; or (e) is developed by or for the receiving Party independently of the information disclosed by the disclosing Party.

49. A Party may disclose the other party's Confidential Information to those of its Representatives who "need to know" such Confidential Information in order to perform their obligations pursuant to this Agreement, provided that the disclosing Party: (a) informs such Representatives of the confidential nature of the Confidential Information before any disclosure is made, (b) is at all times responsible for such Representatives' compliance with the confidentiality obligations set out in this clause and (c) keeps a written record of those persons.

50. A Party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other Party as much notice of such disclosure as possible.

51. Without prejudice to any other rights or remedies that the Parties may have, the Parties acknowledge and agree that damages alone would not be an adequate remedy for any breach of this clause 13 and that an affected Party shall be entitled to the remedies of injunction and specific performance as well as any other equitable relief for any threatened or actual breach of this clause 13

52. Neither Party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other Party (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

14. Indemnity

53. The Customer indemnifies Everway against any and all liabilities, costs, expenses, damages, losses (including but not limited to any claims, fines, penalties and reasonable legal costs and all other reasonable professional costs and expenses) suffered or incurred by Everway, arising out of any:

35. breach by the Customer or its Authorised Users of the Customer's obligations under this Agreement; or

36. negligent, unlawful or wilfully wrong act or omission of Customer in respect to its obligations under this Agreement.

54. Subject to clause 14.3, Everway shall defend the Customer, its officers, directors and employees against any claim that the Customer's use of the Product(s) or Documentation in accordance with this Agreement infringes any United Kingdom patent effective as of the Commencement Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:

37. Everway is given prompt notice of any such claim by the Customer within ten (10) days of receiving written notice of any threat or claim;

38. the Customer does not make any admission, or otherwise attempt to compromise or settle the claim and provides reasonable co-operation to Everway in the defence and settlement of such claim, at Everway's expense;

39. Everway is given sole authority to defend or settle the claim; and

40. the Customer mitigates its losses insofar as is reasonable in the circumstances.

55. In no event shall Everway, its employees, agents and sub-contractors be liable to the Customer pursuant to clause 14.2 or otherwise to the extent that the alleged infringement is based on:

41. any content, material or information (including Customer Data) that has been uploaded, embedded or otherwise displayed or stored on the Product(s) by a Customer;  

42. a modification of the Product(s) or Documentation by anyone other than Everway; or

43. the Customer's use of the Product(s) or Documentation:

1. in a manner not in accordance with this Agreement or the Documentation, if the third party claim would have thereby otherwise been avoided;

2. with other software, services or products not provided by Everway, if the actual or alleged claim in question would have been avoided by the independent use of the relevant Product; or

3. after notice of the alleged or actual infringement from Everway or any appropriate authority,

and in such circumstances, the Customer indemnifies Everway against any such claim whether or not pursued against Everway.

56. If, during the Term, Everway reasonably believes that a Product infringes any third party's IPR, then, Everway must notify the Customer and allow the Customer 14 days to decide whether the Customer would like Everway to: (a) procure the right for the Customer to continue using the relevant Product, (b) replace the Product or (c) modify the Product so that it becomes non-infringing. If none of the aforementioned remedies are commercially reasonable or communicated as acceptable, either party may terminate the licence for the allegedly infringing Product (only) and in such circumstances, Everway shall refund all of the Customer's un-used, pre-paid, Product Fees from the date a third party claim arose for the allegedly infringing Product to the then-current date, whereupon this Agreement shall automatically terminate.

57. This clause 14 sets out the Customer's sole and exclusive rights and remedies, and Everway's (including Everway's employees', agents' and sub-contractors') entire obligations and liability, for any third party IPR claims for infringement.

15. Limitation of liability

58. Except as expressly and specifically provided in this Agreement or as may otherwise be required by law:

44. the Customer assumes sole responsibility for results obtained from the use of the Product(s) and the Documentation by the Customer, and for conclusions drawn from such use. Everway shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Everway by the Customer in connection with the Product(s), or any actions taken by Everway at the Customer's direction;

45. Everway makes no warranty, representation or other statement in respect of the Products, the Documentation, their quality or their fitness for any purpose and all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and

46. the Product(s) and the Documentation are provided to the Customer on an "as is" basis.

59. Nothing in this Agreement excludes the liability of either Party:

47. for death or personal injury caused by that Party's negligence; or

48. for fraud or fraudulent misrepresentation.

60. Subject to the provisions of this clause 15:

49. neither Party shall be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement;

50. Everway's total aggregate liability in contract (including in respect of the indemnity at clause 14.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the lesser of £1,000,000 or the total Product Fees paid for the Authorised Seats during the 12 months immediately preceding the date on which the claim arose; and

51. the Customer's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, shall be limited as follows:

1. for non-payment of undisputed invoices for Products purchased, to the amount unpaid, and any interest due on such amount under clause 11.3; or

2. for any other type of liability, as an aggregate of all claims, to £1,000,000.

61. Nothing in this Agreement excludes the liability of the Customer for any breach, infringement or misappropriation of Everway’s IPR.

16. Notices

62. Any notice given to a Party under or in connection with this Agreement shall be in writing and shall be delivered by email, hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company). Any  notices required to be given to Everway or questions concerning this Agreement can be sent via email to contact@Everway.com.

63. Any notice shall be deemed to have been received:

52. if sent by email, when sent, unless the sending party receives a delivery failure notification indicating that the email has not been delivered to the addressee;

53. if delivered by hand, at the time the notice is left at the proper address; or

54. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 a.m.  on the second Business Day after posting.

64. This clause 16 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

17. General Provisions

65. Neither Party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond such Party's reasonable control including (without limitation) riots, natural catastrophes, terrorist acts, governmental intervention, failing to grant a necessary licence or consent or other act of god (each, a "Force Majeure Event"). The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 40 continuous days, the Party not affected may terminate this Agreement by giving 7 days' written notice to the affected Party.

66. If there is an inconsistency between any of the provisions in the main body of this Agreement and the Schedules, the provisions in the main body of this Agreement shall prevail.

67. No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

68. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.

69. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.

70. Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

71. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.

72. If any provision or part-provision of this Agreement is deemed deleted under 17.7 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

73. This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous and contemporaneous written agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter.

74. To the extent permitted by law, each Party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.

75. To the extent permitted by law, each Party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement. Nothing in this clause shall limit or exclude any liability for fraud.

76. Neither party may, without the prior written consent of the other party (which consent must not be unreasonably withheld), assign, novate, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

77. Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either Party to act as agent for the other, and neither Party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

78. This Agreement does not confer any rights on any person or Party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns).

79. This Agreement may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement. No counterpart shall be effective until each Party has delivered to the other at least one executed counterpart.

80. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and interpreted in accordance with the laws of New south Wales, Australia.

81. Each Party irrevocably agrees that the courts of New South Wales, Australia shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

18. Definitions

82. The definitions and rules of interpretation in this clause apply in this Agreement.
    

1. Affiliates:  the Customer's Related Bodies Corporate and Related Entities.

2. Applicable Data Protection Laws: means:

• to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data;

• to the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which Everway is subject, which relates to the protection of personal data; and

• Australian Privacy Laws.

3. Audit: shall have the meaning given to it in clause 4.2.

4. Australian Privacy Laws means all laws and regulations governing the collection, storage and handling of Personal Information in Australia and includes but is not limited to the Privacy Act and the Australian Privacy Principle's contained in the Privacy Act.

5. Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Product(s), as further described in 4.2.

6. Authorised Seats: means the authorised seats purchased by the Customer as set out in an agreed Quotation which entitles Authorised Users to access and use the Products in accordance with this Agreement.

7. Business Day: a day other than a Saturday, Sunday or public holiday in Australia when banks in Australia are open for business.

8. Commencement Date: means the date specified in an agreed Quotation.

9. Confidential Information or CI: means confidential and proprietary information (whether in written, oral or electronic form) that: (a) is by its nature confidential; and/or (b) is designated by a Party as confidential; or (c) the other Party knows or ought to know is confidential; and includes, but is not limited to the terms of this Agreement, trade secrets, know-how, inventions, techniques, processes, software programs and other IT related information, documentation, schematics, procedures, contracts, databases, business information, financial information, budgets, sales, marketing, insurance secrets, anti-money laundering and compliance data, ideas, strategies, designs, projections, business plans, strategic expansion plans, products and product designs, sourcing information, potential product labelling and marking ideas, unpublished information relating to the IPR of either Party, and all communications between the Parties and other non-public information relating to the Parties’ business.

10. Contract Year: each successive 12 month period during the Term, the first of such periods commencing on the Commencement Date, with subsequent "Contact Years" commencing on the corresponding anniversary of such date.

11. Corporations Act:  means the Corporations Act 2001 (Cth). 

12. Customer Data: means any data, documentation or Customer Confidential Information that is inputted by the Customer, Authorised Users, or Everway on the Customer's behalf for the purpose of using the Products.

13. Customer Personal Data: means any personal data or Personal Information which Everway processes in connection with this Agreement, in the capacity of a processor on behalf of the Customer.

14. Documentation: the document made available to the Customer by Everway from time to time which sets out amongst other things the user instructions for the Product(s) consisting of the applicable installation guides, service descriptions, technical specifications and online help files.

15. DPA: shall have the meaning set out in clause 6.3.

16. Eligible Data Breach has the meaning given to it in the Privacy Act.

17. EU GDPR: means the General Data Protection Regulation ((EU) 2016/679).

18. Insolvency Event: means in relation to any Party, if that Party:

• becomes or is declared insolvent, has a liquidator, receiver or administrative receiver appointed or passes a resolution for winding up (otherwise than for the purpose of a solvent amalgamation or reconstruction) or if a court makes an order to that effect;

• by reasons of financial difficulties suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or

• is the subject of any events or circumstances analogous to any of the events described in paragraphs (a) and (b) in this definition in any applicable jurisdiction.

19. Intellectual Property Rights or IPR means patents, rights to inventions, copyright, trade marks and service marks, business names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use and protect the confidentiality of confidential information (including know-how), trade secrets and all other similar or equivalent rights to any of the foregoing situated anywhere in the world, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights.

20. Normal Business Hours: 8.00 am to 5.00 pm, Australian Eastern Standard Time, each Business Day.

21. Personal Information has the meaning given to in the Privacy Act.

22. Privacy Act means the Privacy Act 1988 (Cth).

23. Product means Everway's online proprietary software applications and tools to enhance Authorised Users learning and working styles as is set out in the Quotation, together with any necessary fixes, updates or enhancements thereto but not including any additional products or services that Everway may make commercially available from time to time.

24. Product Fees: means all applicable fees payable by the Customer to Everway for the Authorised Seats as set out in the applicable Quotation.

25. Quotation: means Everway's standard Quotation to be signed by the Customer and which sets out the details of the Customer's order for Products and/or Support from Everway.

26. Related Body Corporation:  has the meaning given to that term in the Corporations Act.

27. Related Entity:  has the meaning given to that term in the Corporations Act.

28. Representatives: means, in relation to a Party, its employees, officers, contractors, subcontractors, representatives and advisers.

29. Renewal Period: the period described in 3.1.

30. Support: means any support, training and/or maintenance services that are provided by Everway to the Customer pursuant to an agreed Quotation as further described in Schedule 1.

31. Term: has the meaning given in 3.1 (being the Term together with any subsequent Renewal Periods).

32. UK GDPR has the meaning given to it in the Data Protection Act 2018.

33. Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

83. Clause, Schedule and paragraph headings shall not affect the interpretation of this Agreement.

84. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns.

85. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

86. Unless the context otherwise requires, words in the singular shall include the plural and, in the plural, shall include the singular.

87. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

88. A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement.

89. A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision.

90. A reference to writing or written excludes fax but not email.

91. References to clauses and Schedules are to the clauses and Schedules of this Agreement; references to paragraphs are to paragraphs of the relevant Schedule to this Agreement.

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Schedule 1 – Support

1. Support Services

1. Everway shall, during the Term, provide the Product(s) and make available the Support to the Customer on and subject to the terms of this Agreement.

2. Everway shall use commercially reasonable endeavours to make the Product(s) available 24 hours a day, seven days a week, except for:

1. planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am UK time; and

2. unscheduled maintenance performed outside Normal Business Hours, provided that Everway has used reasonable endeavours to give the Customer at least 6 Normal Business Hours' notice in advance.

3. Everway will, as part of the Product(s) and at no additional cost to the Customer, provide the Customer with Everway's standard customer support services during Normal Business Hours in accordance with this Schedule in effect at the time that the Product(s) are provided.  Everway may amend the Support services in its sole and absolute discretion from time to time.  

4. If any performance issues arise, the Customer may contact Everway:

3. By Phone

Support is available via phone from 8.30am to 4.30pm Australian Eastern Standard Time, Monday through Friday. For support via phone: Australia 07 4913 0609, New Zealand and South East Asia +61 7 4913 0609.

4. By Email

The Customers can also communicate any issues to Everway by email. When emailing Everway about an issue, the Customer shall insert the relevant Product(s) that it is experiencing issues with in the subject line of the email. Support is available via email from  8.30am to 4.30pm Australian Eastern Standard Time Monday through Friday.  For Maintenance and Support via email:  support@Everway.com

5. Training Materials / Technology Support Tools  

5. Everway shall provide the Customer with, and access to, any new training materials and technology support tools for Products(s), developed by Everway from time to time.

6. Critical Hosting Service Interruption

6. Everway warrants to deliver the Product(s) either from its own servers or through a bona fide 3rd party hosting service.  Any third party hosting service shall be required to provide continuity of service guarantees in line with industry standards for delivery of streamed speech. Everway reserves the right to change the hosting service from time to time.

2. Service Levels

7. Everway shall use all reasonable commercial efforts, being no less than prevailing industry standards in this regard, to ensure the Product(s) is/are available to the Customer 99.50% of the time in any calendar month. If it is not, the Customer may be eligible to receive the Service Credits described below.

8. In order to receive any of the Service Credits described above, the Customer must notify Everway by email or otherwise in writing within thirty (30) days from the time the Customer become eligible to receive a Service Credit.

9. The aggregate maximum number of Service Credits claimable for any and all Downtime Periods that occur in any Contract Year shall not exceed thirty days of the Product(s) added to the end of Term. Service Credits may not be exchanged for, or converted to, monetary compensation.

10. Exclusions: The compensation regime described in this clause 2 will:

7. not apply to any performance issues: (i) caused by factors outside of Everway's reasonable control; (ii) that resulted from any actions or inactions of the Customer or any third parties; or (iii) that resulted from Customer's equipment and/or third party equipment (not within the primary control of Everway); and

8. be the Customer's sole and exclusive remedy for any failure by Everway to provide the Product(s) as a result of Downtime, except as may be otherwise agreed.

3. Definitions

• "Downtime" means that the Product(s) is/are not responding.

• "Downtime Period" means the amount of time the Product(s) is/are not available and must be 10 consecutive minutes or more, but does not include any Scheduled Downtime.

• "Monthly Uptime Percentage" means the total number of minutes in the calendar month minus the number of minutes of Downtime suffered from all Downtime Periods in the calendar month, divided by the total number of minutes in the calendar month.

• "Scheduled Downtime" means those times where Everway gives notification of periods of Downtime five (5) days prior to the commencement of such Downtime. There will be no more than twelve (12) hours of Scheduled Downtime per calendar year. Scheduled Downtime is not considered Downtime for purposes of this Agreement and will not be counted towards any Downtime Periods.

• "Service Credit" may be provided according to the following schedule:

• One day Credit: Includes One (1) day of Product(s) to be added to the end of the Term, at no charge to the Customer, if the Monthly Uptime Percentage for any calendar month is between 99.5% and 97.0%;

• One week Credit: Includes Seven (7) days of Product(s) added to the end of the Term, at no charge to the Customer, if the Monthly Uptime Percentage for any calendar month is between 97.0% and 95.0%;

• Two weeks Credit: Includes Fourteen (14) days of Product(s) added to the end of the Term, at no charge to the Customer, if the Monthly Uptime Percentage for any calendar month is less than 95.0%.