Updated: 10 October 2018
This Customer Agreement (“Agreement”) is a contract between you (“Customer”) and Mobble Pty Ltd (“Mobble”). It governs your use of Mobble’s sites, services, mobile apps, products, and content (“Services”).
This Agreement is binding on any use of the Services and applies to Customer from the time a Customer registers for the Services. By registering to use the Service you acknowledge that you have read and understood the terms and conditions of this Agreement. If you do not agree with any of the terms and conditions of this Agreement, you may not trial or purchase, or continue to use, the Service.
If you are entering into this Agreement on behalf of an entity or organisation, you represent and warrant that you have the full authority as at the time of entering into this Agreement to bind that entity or organisation to the terms of this Agreement. You will provide evidence of such authority on request by Mobble.
It is agreed as follows.
1. Contract Administration
a. Customer registering for the Services constitutes an offer to trial and/or purchase Services from Mobble.
b. If you have elected to use a free trial, your trial will expire after 21 days (unless otherwise agreed with Mobble for a different period).
c. To continue using the Services after your free trial expires, and subject to clause 9.5(a), you will need to purchase a subscription and enter your debit or credit card information in the Portal for processing. If you fail to pay, your account will be frozen and inaccessible until payment is made.
d. You may be required to enter your debit or credit card information in the Portal prior to the trial commencing. In this case, to continue using the Services after your free trial expires, we will, unless you direct us otherwise, automatically purchase a periodic subscription for you using the credit card details provided to us. If the subscription transaction fails for any reason, your account will be frozen and inaccessible until payment is made.
This Agreement commences from the date the Customer registers for the Services and shall continue until terminated in accordance with its terms.
3. Provision of Services
Mobble agrees to provide and make available the Services to Customer during the Term.
a. Mobble may make Updates available to Customer from time to time. Customer must install any Updates as soon as reasonably practicable upon receipt. Once installed, Updates will be deemed to form part of the Products.
b. To the extent permitted by Law (including the Australian Consumer Law if applicable), Mobble shall not be liable for any failure of the Products to operate in accordance with this Agreement, or to otherwise meet any warranties or representations set out in this Agreement or required under Law, unless Customer has installed all Updates pursuant to this clause 4.
5. Use of Products
a. (licence restrictions) Customer must:
i. not copy the Products except where such copying is incidental to normal use of the Products, or where it is necessary for the purpose of back-up or operational security;
ii. not rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Products;
iii. not make alterations to, or modifications of, the whole or any part of the Products, or permit the Products or any part of it to be combined with, or become incorporated in, any other programs;
iv. not disassemble, decompile, reverse engineer or create derivative works based on the whole or any part of the Products or attempt to do any such thing;
v. not provide or otherwise make available the Products in whole or in part (including object and source code), in any form to any person without prior written consent from Mobble; and
vi. comply with all technology control or export laws and regulations that apply to the technology used or supported by the Products.
b. (acceptable use restrictions) Customer must:
i. not use the Products in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement, or act fraudulently or maliciously, for example, by hacking into or inserting malicious code, including viruses, or harmful data, into the Products or any operating system;
ii. not infringe Mobble’s Intellectual Property Rights or those of any third party in relation to Customer's use of the Products;
iii. not transmit any material that is defamatory, offensive or otherwise objectionable in relation to Customer's use of the Products;
iv. not use the Products in a way that could damage, disable, overburden, impair or compromise Mobble’s systems or security or interfere with other users; and
v. not collect or harvest any information or data, or attempt to decipher any transmissions to or from the servers used by Mobble.
c. Customer will also procure that its Personnel comply with the requirements of this clause 5.
6. Intellectual Property Rights
a. The parties acknowledge that all rights, title and interest in the Products including in any improvements to the Products (including any Intellectual Property Rights in the Products and any improvements to them) remain with Mobble and/or its licensors at all times and nothing in this Agreement is intended to transfer such right, title or interest to Customer. b. Subject to Customer's compliance with the terms of this Agreement (including but not limited to clause 5), Mobble grants to Customer and its Personnel a non-transferable and non-exclusive licence to:
i. access, view and use the Portal and Documents; and
ii. view, use and display the App on the Customer’s own device, during the term of this Agreement for personal and business purposes (to the extent that the business purpose is solely and directly related to the management of the agricultural property for which the purchase of the Products relates) only.
c. The licence granted under clause 6.1(b) does not include a right to sub-license or otherwise provide the Products to any third party.
d. Without limiting clause 6.2, Mobble acknowledges that you own or license all rights, title and interest in the Data (including any Intellectual Property Rights), and that this Agreement does not transfer ownership of any such right, title or interest of you or any third party.
e. Mobble will not distribute or transfer the Data to any third parties without Customer's consent.
6.2. Data and Derivative Materials
You acknowledge and agree that:
a. Mobble may access, use, adapt, modify, reproduce, reformat, transform, and process the Data, to the extent necessary to provide the Services and to otherwise carry out our obligations under this Agreement;
b. without limiting clauses 6.2(c) or (d), Mobble may create Derivative Materials from the Data, including by combining the Data with other information collected or otherwise obtained by Mobble, but only provided that the Derivative Materials do not incorporate the Data or your Confidential Information in a form that could reasonably identify any individual;
c. Mobble may use information about you, or information about your use of the Services, for the purposes of improving the Services, detecting and addressing threats to the functionality, security, integrity and availability of the Services, detecting and addressing breaches of this Agreement or any of our other policies and to help us to resolve your service requests; and
d. any existing or future Intellectual Property Rights in any Derivative Materials vest in Mobble absolutely. You agree to assign, and procure the assignment of, such Intellectual Property Rights in any Derivative Materials to Mobble immediately on their creation;
e. this clause 6.2 survives termination of the Agreement for whatever reason.
7. Confidential Information
Subject to clause 7.2, a party must not disclose, or use for a purpose other than as contemplated by this Agreement, the existence of and terms of this Agreement or any other Confidential Information.
7.2. Permitted disclosure
A party may disclose any Confidential Information:
a. to the other party to this Agreement;
b. under corresponding obligations of confidence as imposed by this clause, to persons which control or are controlled by the party within the meaning of the Corporations Act, and the employees, legal advisors or consultants of such persons;
c. which is at the time lawfully in the possession of the proposed recipient of the Confidential Information through sources other than the other party, or a Related Body Corporate of the other party, to this Agreement;
d. in enforcing this Agreement or in a proceeding arising out of or in connection with this Agreement;
e. if required under a binding order of a Governmental Agency or under a procedure for discovery in any proceedings;
f. if required under any Law or any administrative guideline, directive, request or policy whether or not having the force of law;
g. as required or permitted by this Agreement;
h. to its legal advisers, its insurers and its consultants; or
i. with the prior written consent of the other party to this Agreement.
a. Customer agrees that, notwithstanding this clause 7, Mobble may:
i. disclose to third parties the fact that Customer has entered into this Agreement with Mobble; and
ii. use de-identified information about Customer, in any marketing or other material used by Mobble.
b. For the avoidance of doubt, marketing material may include (but is not limited to) case studies regarding Customer's involvement with Mobble, however Mobble will only identify Customer in marketing material (including in case studies) with Customer's prior written consent.
a. You acknowledge that:
ii. this information may be disclosed to third parties that help us deliver our services or as required by Law;
iii. if you do not provide this information, we may not be able to provide all of our services or products to you; and
iv. we may also disclose your Personal Information to recipients that are located outside of Australia including to our third-party suppliers and service providers.
d. Customer must not use, or cause the Products to be used, in any manner or for any purpose prohibited by any Privacy Laws.
9. Payment and Plans
a. Customer must pay the Fees using a valid debit or credit card at the point the Customer elects to purchase and subscribe to the Services, unless alterative payment methods are agreed with Mobble as set out in clause 9.5.
b. The Fees may be waived for any period of time at the sole discretion of Mobble.
c. An invoice for the Fees will be issued and available in the Portal (or other such means as varied from time to time) upon subscription to the Services in accordance with the details set out in the Fee Schedule. Mobble will continue invoicing you in accordance with the Fee Schedule until this Agreement is terminated in accordance with clause 12.
d. Customer is responsible for payment of all taxes and duties in addition to the Fees, including any applicable GST or sales tax.
a. Subject to clause 9.2(b), your Mobble subscription will automatically renew, and your card will be automatically charged the then current fees for the Mobble subscription type or service(s) you’ve selected on a recurring agreed periodic basis until this Agreement is terminated in accordance with clause 12.
b. If you do not intend to automatically renew your subscription, you must provide Mobble with at least 30 days' notice prior to the expiry of the then current subscription period.
9.3. Subscription plan changes
a. From time to time, Mobble may offer promotions for existing Customers who change onto new plans.
b. Downgrading your subscription plan may cause the loss of features or capacity of the Services to you, compared to a higher subscription level. Mobble does not accept any liability for any such loss.
9.4. Pricing and other terms
a. Promotional pricing and free trials cannot be combined with other offers. Any promotional offers are available for a limited time only.
b. Pricing, terms, features, services and support are subject to change by Mobble at any time.
a. If Mobble agrees for Customer to purchase the Services via invoice instead of debit or credit card, Mobble will issue a valid tax invoice to Customer in respect of the applicable Fees.
b. Customer must pay all invoices properly issued to it within 14 days of receipt.
c. An invoice is valid only if:
i. the amount specified in the invoice is correctly calculated in accordance with this Agreement;
ii. it is set out in a manner that enables the recipient of the invoice to ascertain which service is covered by the invoice, the respective charge payable and how that amount is made up or calculated; and
iii. it is addressed and delivered to the address for notices set out by Customer.
9.6. Late payment
Any portion of the payments not paid by Customer to Mobble on or before the date that it is due, and that is not disputed in accordance with clause 21, shall accrue interest at a rate equal to LIBOR + 5% per annum, from the date such amount is due until payment is received in full by Mobble.
a. If GST is payable on a supply made under or in connection with this Agreement, the party providing the consideration for that supply must pay as additional consideration an amount equal to the amount of GST payable on that supply.
b. Unless otherwise stated, all amounts referred to in this Agreement, including the Fees, are stated on a GST exclusive basis.
c. If an adjustment event occurs in relation to a supply made under or in connection with this Agreement, the GST payable on that supply will be recalculated to reflect that adjustment and an appropriate payment will be made between the parties.
d. In providing an invoice in accordance with clause 9.5, a party shall provide proper tax invoices if GST is applicable to the Fees.
e. Terms which have a defined meaning in the A New Tax System (Goods and Services Tax) Act 1999 shall have that meaning in this Agreement.
10. Force Majeure
a. Subject to the requirement to give notice under this clause, if the performance by any party (Affected Party) of all or any of its obligations under this Agreement is prevented or delayed in whole or in part due to any Force Majeure Event, this Agreement will continue and remain in effect but the Affected Party will not be in breach of this Agreement for that reason only, and the Affected Party will be granted a reasonable extension of time to complete performance of its affected obligations.
b. The Affected Party must promptly after becoming aware of a Force Majeure Event, give written notice to the other party of the nature of the Force Majeure Event and the way and the extent to which its obligations are prevented or delayed and notify the other party of any material change in these matters and use its reasonable endeavours to limit the effects of the Force Majeure Event, and promptly carry out its obligations as soon as, and to the extent that, it is able to do so.
c. After 14 days (or earlier if agreed by the parties) of being given notice, either party may terminate the Agreement or negotiate to allow part fulfilment or deferment of the obligations of either party under this Agreement.
a. Mobble may amend these terms and conditions from time to time (including the Fee Schedule) to reflect changes in market conditions, changes in technology used to provide the products and services under this Agreement, changes in payment methods, changes in relevant laws and regulatory requirements and changes in the capabilities of Mobble’s system.
b. Mobble will provide you with reasonable prior notice of any amendment to this Agreement in writing, including 30 days' notice of any changes to the Fee Schedule which affects your current subscription plan. You must accept the amended terms in order to continue use of the Services. Continued use of the Services shall constitute deemed acceptance by you of any amendment to this Agreement. If you do not agree to the amended terms, you will be deemed to have exercised your right to terminate the Agreement pursuant to clause 12(c) below.
a. (for cause) Either party may terminate this Agreement with immediate effect by giving written notice to the other party at any time if the other party:
i. breaches any warranty in this Agreement or any other provision of this Agreement which is incapable of being remedied, or where the breach is capable of being remedied, fails to remedy the breach within seven days after receiving written notice from the terminating party requiring it to do so;
ii. on the occurrence of an Insolvency Event; or
iii. without limiting clause 12(a)(i), fails to comply with the obligations set out in clause 7 (Confidential Information).
b. (termination for failure to comply with restrictions) Without limiting clause 12(a)(i), Mobble may suspend Customer's access to the Services or terminate this Agreement with immediate effect if Customer or its Personnel breach any of the restrictions set out in clause 5.
c. (termination of Agreement for refusal of new terms) If Customer elects not to accept variations to these terms made pursuant to clause 11 Customer will be deemed to have terminated this Agreement with immediate effect.
d. (termination of Agreement for convenience) Either party may terminate this Agreement for convenience and without incurring liability to the other party at any time by giving at least 30 days' written notice to the other party.
13. Consequences of termination
a. On termination of this Agreement for any reason:
i. all rights granted to Customer under this Agreement shall cease;
ii. Customer must cease all activities authorised by this Agreement;
iii. Customer must immediately delete or remove the App from all devices, and immediately destroy all copies of the App and Documents in its possession;
iv. Customer will lose all rights to access the Services; and
v. Mobble may remotely access the Products and remove the App and cease providing you with access to the Products.
b. Customer must, within 20 Business Days of termination, pay to Mobble all Fees incurred and/or owing under the Agreement up to and including the date of termination or expiry.
c. Where you terminate this Agreement in accordance with clauses 12(a) or 12(c) or where Mobble terminates this Agreement in accordance with clause 12(d), Mobble will reimburse you for any Fees prepaid by you in respect of the period following the date of termination on a pro rata basis.
d. Without limiting clause 13(b) and to the extent permitted by Law (including the Australian Consumer Law if applicable), where you terminate this Agreement in accordance with clause 12(d), you will not be entitled to any reimbursement for any Fees already paid or payable under this Agreement.
e. Upon termination of this Agreement, Customer will be entitled (following a written request to Mobble) to export any Data that has been input by Customer into the App and/or the Portal. You acknowledge and agree that Mobble has no obligation to retain any information relating to you (including Data) and that all such information may be irretrievably deleted by Mobble after one month from the date of any suspension, termination or expiry of this Agreement.
14. Accrued rights and remedies and survival
Without limiting any other provision of this Agreement, clauses 5 (Use of Products), 6 (Intellectual Property), 7 (Confidential Information), 8 (Privacy), 13 (Consequences of termination), this clause 14 (Accrued rights and remedies and survival), 16 (Disclaimer), 18 (Indemnities), and any other clauses which should by their nature survive termination of this agreement, survive termination or expiration of this Agreement for any reason.
Each party represents and warrants that:
a. it has full power, authority and legal capacity to enter into this Agreement and perform its obligations under this Agreement;
b. execution and performance of this Agreement will not result in a breach of any terms or conditions of any instrument or agreement to which it is a party; and
c. it shall obtain and maintain all Consents applicable or necessary in order to perform its obligations under this Agreement.
Customer agrees and acknowledges that, to the extent permitted by Law (including the Australian Consumer Law if applicable), Mobble:
a. does not represent, warrant or accept any liability in relation to the accuracy, currency, reliability or quality of the Products or Services or any advice, suggestions, recommendations or other information contained within the Products or Services;
b. does not represent or warrant that the Products or Services, or any advice, suggestions, recommendations or other information contained within the Products or Services, are free from errors or omissions, or that they are exhaustive; and
c. disclaims any warranties, representations or endorsements, express or implied, with regard to the Products or Services, or any advice, suggestions, recommendations or other information contained within the Products or Services, including all implied warranties of merchantability, fitness for a particular purpose, or non-infringement.
17. No reliance on Collaborator input
a. Mobble may, from time to time, collaborate with third parties to develop new features or services for the Products and Services, which may include advice, suggestions, recommendations or integration with third party services (Collaborators).
b. You acknowledge and agree that:
i. you will review and make your own assessment and verification of any advice, suggestions, recommendations or other information made available through the Products or Services and you must not rely (in whole or in part) on such advice, suggestions, recommendation or other information; and
ii. Mobble is not responsible for any advice, suggestions, recommendation or other information provided through the Products or Services, including any advice, suggestions, recommendations or other information provided by Collaborators or other third parties.
18.1. Indemnity by Mobble
a. Subject to clause 18.1(b), Mobble shall defend, hold harmless and indemnify Customer from and against any Loss suffered or incurred by Customer arising out of or in connection with any Claim that the Products infringe any Intellectual Property Right or other right of any third party, except to the extent that such Loss is caused or contributed to by an act or omission of Customer.
b. Clause 18.1(a) does not apply to any Intellectual Property Rights in any advice, suggestions, recommendations or other information provided by Mobble, by a Collaborator or third party contained within the Products, whether or not separately identified.
18.2. Indemnity by Customer
Customer shall defend, hold harmless and indemnify Mobble and and Personnel (the Mobble Indemnified Parties) from and against any Loss suffered or incurred by the Mobble Indemnified Parties arising out of or in connection with:
a. any breach of clause 5;
b. any Claim by any person (including Customer) in connection with any data used or disclosed by Mobble in connection with this Agreement;
c. any Claim by any person (including Customer) that is connected with use by Customer of the Products; or
d. any loss or damage to property arising out of or otherwise in connection with any wrongful act or omission of Customer.
19. Limitation of Liability
a. To the extent permitted by Law, (including the Australian Consumer Law if applicable), and subject to clause 19(d), in no event will the aggregate liability of Mobble for any Loss, direct or otherwise, exceed the Liability Cap, regardless of the cause or form of action. For the avoidance of doubt, the limitation of liability under this clause 19(a) is cumulative and not per incident or Claim.
b. To the extent permitted by Law, (including the Australian Consumer Law if applicable), under no circumstances will Mobble be liable for any Consequential Loss.
c. The limitations and exclusions in this clause 19 shall apply whether the action, claim or demand arises from breach of contract, tort (including negligence) or under any other theory of liability.
d. Clause 19(a) does not apply to, and shall not limit, any party's liability:
i. for death or personal injury caused by that Party or its Personnel;
ii. for fraud (including fraudulent misrepresentation); or
iii. under any indemnity given in this Agreement.
a. The contract between Mobble and Customer is binding on the parties and their respective successors and assigns.
b. Customer may not transfer, assign, charge or otherwise dispose of this Agreement, or any of its rights or obligations arising under it, without Mobble’s prior written consent.
c. Mobble’s consent under clause 20(a) will not relieve Customer of its obligations to Mobble under this Agreement, and Customer will be fully responsible to Mobble for the acts or omissions of its sub-contractors, contractors, assigns and all their employees, as if it were the acts and omissions of Customer.
d. Mobble may transfer, assign, charge, subcontract or otherwise deal with an Agreement, or any of its rights or obligations arising under it, at any time during the term of the Agreement.
21. Dispute resolution
a. Neither party may commence any court or arbitration proceedings relating to a Dispute unless it has complied with the provisions of this clause 21, except to seek urgent interlocutory relief.
b. A party claiming that a Dispute has arisen must promptly notify the other party in writing by giving details of the Dispute. The parties must use reasonable endeavours to resolve any Dispute.
c. If the parties are not able to resolve the Dispute in accordance with clause 21(b) within 20 Business Days from the date of notification, either party may immediately refer the Dispute to mediation and the parties will use reasonable endeavours to resolve the Dispute following the ACDC Guidelines. Each party must bear its own costs in relation to complying with this clause 21(c), except for the costs and expenses of the mediation, which will be borne by the parties equally.
22.3. Provision of notices
Any notice, demand, consent or other communication (a Notice) given or made under this Agreement:
a. must be in writing and signed by the sender or a person duly authorised by the sender;
b. must be addressed and delivered to the address, email address or fax number last notified by the intended recipient to the sender after the date of this Agreement; and
c. will be conclusively taken to be duly given or made when delivered, received or left at the above email address, fax number or address. If delivery or receipt occurs on a day that is not a business day in the place to which the Notice is sent or is later than 4pm (local time) at that place, it will be conclusively taken to have been duly given or made at the commencement of business on the next business day in that place.
23.1. Further assurances
Each party agrees to do all things and execute all deeds, instruments, transfers or other documents as may be necessary or desirable to give full effect to the provisions of this Agreement and the transactions contemplated by it.
23.2. Entire agreement
This Agreement contains the entire agreement between the parties with respect to its subject matter. It sets out the only conduct, representations, warranties, covenants, conditions, agreements or understandings (collectively Conduct) relied on by the parties and supersedes all earlier Conduct by or between the parties in connection with its subject matter. None of the parties has relied on or is relying on any other Conduct in entering into this Agreement and completing the transactions contemplated by it.
No failure to exercise or delay in exercising any right, power or remedy under this Agreement operates as a waiver. A single or partial exercise or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the party granting that waiver unless made in writing.
23.4. Remedies cumulative
The rights, powers and remedies provided to a party in this Agreement are in addition to, and do not exclude or limit, any right, power or remedy provided by law or equity or any agreement. 23.5. No merger The rights and obligations of the parties will not merge on the completion of any transaction contemplated by this Agreement. They will survive the execution and delivery of any assignment or other document entered into for the purpose of implementing a transaction.
Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction is ineffective as to that jurisdiction to the extent of the prohibition or unenforceability. That does not invalidate the remaining provisions of this Agreement nor affect the validity or enforceability of that provision in any other jurisdiction.
23.7. Costs and duty
Each party must bear its own costs arising out of the negotiation, preparation and execution of this Agreement.
23.8. Governing law and jurisdiction
This Agreement and, to the extent permitted by law, all related matters including non-contractual matters, is governed by the laws of VIC and of the Commonwealth of Australia applying there. In relation to such matters each party irrevocably accepts the non-exclusive jurisdiction of courts with jurisdiction there and waives any right to object to the venue on any ground.
24. Definitions and Interpretation
The following definitions apply unless the context requires otherwise. ACDC means the Australian Commercial Disputes Centre Ltd (or, if that organisation ceases to exist, a similar organisation nominated by the party referring the Dispute to mediation).
ACDC Guidelines means ACDC Guidelines for Commercial Mediation (or if the ACDC ceases to exist, the guidelines for mediation of any similar organisation nominated by the party referring the Dispute to mediation) in force from time to time, the terms of which are incorporated into this Agreement.
App means the Mobble mobile application software and other associated Mobble application software, the data supplied with the software and the associated media (as updated from time to time).
Business Day means a weekday on which banks are open in Melbourne, VIC.
Claim means, in relation to a party, a demand, claim, action or proceeding made or brought by or against the party, however arising and whether present, unascertained, immediate, future or contingent.
Collaborators has the meaning given to that term in clause 17(a).
Confidential Information means all information of a confidential nature, in any form whether tangible or not and whether visible or not, disclosed or communicated by a party to the other, or learnt or accessed by, or to which the other party is exposed as a result of entering into this Agreement and includes, without limitation, any information and material concerning the contractual or commercial dealings, financial details, products or services (current or proposed), customers, employees, internal policy, the Intellectual Property Rights of a party or dealings under this Agreement.
Consents means any licences, clearances, permissions, certificates, permits, authorities, declarations, exemptions, waivers, approvals or consents.
Consequential Loss means any:
a. loss of profits, loss of income or revenue, loss of data, loss of or damage to reputation, loss of or damage to goodwill, loss of business opportunities (including opportunities to enter into or complete arrangements with third parties), loss of management time, damage to credit rating, or loss of business; and
b. any loss, not arising naturally (that is according to the usual course of things), from the relevant breach, whether or not such loss is reasonably supposed to have been in the contemplation of both parties, at the time they made the Agreement, as the probable result of the relevant breach.
Data means any data that is input into the App or the Portal, or provided to Mobble or its Personnel, by or on behalf of you, or at your request.
Derivative Materials means materials, data and insights derived or created by or on behalf of Mobble or its Personnel in accordance with clause 6.2, which are based on, or created or derived from, the Data.
Documents means all online or hard copy documents, together with their accompanying supplemental information, made available to Customer by Mobble from time to time.
Dispute means a dispute between the parties arising in connection with this Agreement.
Fees means the Subscription Fees payable by Customer in accordance with the Fee Schedule and the Services Fee.
Fee Schedule means the information relating to subscriptions, services and billing set out:
(i) on the Mobble subscriptions and billing pages on the Website;
(ii) any other page(s) on the Website notified by Mobble; (iii) any other fee information provided to Customer by Mobble; or
(iv) any other third party sites from time to time, which may be updated or amended by Mobble from time to time in accordance with clause 11.
Force Majeure Event means an event or cause beyond the reasonable control of the party claiming force majeure. It includes each of the following, to the extent it is beyond the reasonable control of that party:
a. act of God, lightning, storm, flood, fire, earthquake or explosion;
b. strike, lockout or other labour difficulty;
c. act of public enemy, war (declared or undeclared), terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic;
d. the effect of any applicable laws, orders, rules or regulations of any government or other competent authority;
e. embargo, power or water shortage, lack of transportation, lack of public or private telecommunications networks; and
f. breakage or accident or other damage to machinery.
Governmental Agency means any government or any governmental, semi-governmental or judicial entity or authority. It also includes any self-regulatory organisation established under statute or any stock exchange.
Insolvency Event means where:
a. a party ceases, suspends or threatens to cease or suspend the conduct of all or a substantial part of its business or disposes of or threatens to dispose of a substantial part of its assets;
b. a party becomes unable to pay its debts when they fall due, or stops or suspends or threatens to stop or suspend payment of all or a class of its debts;
c. a party becomes or is (including under legislation) deemed or presumed to be insolvent;
d. a party has a receiver, manager, administrator, administrative receiver or similar officer appointed in respect of it or the whole or any part of its assets or business;
e. any composition or arrangement is made with any one or more classes of its creditors;
f. except for the purpose of solvent amalgamation or reconstruction, an order, application or resolution is made, proposed or passed for its winding up, dissolution, administration or liquidation;
g. a party enters into liquidation whether compulsorily or voluntarily; or
h. any analogous or comparable event takes place in any jurisdiction.
Intellectual Property Rights means all industrial and intellectual property rights of any kind including but not limited to copyright (including rights in computer software), trade mark, service mark, design, patent, trade secret, semiconductor or circuit layout rights, trade, business, domain or company names, moral rights, rights in Confidential Information, know how or other proprietary rights (whether or not any of these are registered and including any application, or right to apply, for registration) and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world.
Law means all laws including rules of common law, principles of equity, statutes, regulations, proclamations, ordinances, by-laws, rules, regulatory principles, requirements and determinations, mandatory codes of conduct, writs, orders, injunctions and judgments.
Liability Cap means the amount equal to the Fees paid by Customer in the preceding six month period from the time the event occurred that gave rise to the Claim.
Personal Information means "personal information" as defined in the Privacy Act and any other information relating to individuals that is subject to the operation of the Privacy Laws that either party has collected, received or otherwise has access to in connection with this Agreement.
Personnel means in respect of a person any employee, contractor, servant, agent, or other person under the person's direct or indirect control and includes any subcontractors.
Portal means the web based application which comprises the Mobble online portal, the data supplied with the software and the associated media.
Privacy Act means the Privacy Act 1988 (Cth).
Privacy Laws means:
a. the Privacy Act;
b. the Spam Act 2003 (Cth);
c. any legislation from time to time in force in any:
i. Australian jurisdiction (which includes the Commonwealth of Australia and any State or Territory of Australia); and/or
ii. non-Australian jurisdiction (to the extent that either party is subject to the laws of that jurisdiction), affecting privacy, personal information or the collection, handling,
storage, processing, use or disclosure of data; and
d. any ancillary rules, guidelines, orders, directions, directives, codes of conduct or other instruments made or issued by a Government Agency under an instrument identified in
paragraphs (a), (b) or (c), as amended from time to time.
Products means the App, the Portal and the Documents.
Related Body Corporate has the meaning given in the Corporations Act 2001 (Cth).
Services means the Products and associated services made available by Mobble (as may be changed or updated from time to time by Mobble) to Customer.
Services Fee means any fee charged by Mobble for the provision of Services which is not part of the Subscription Fee.
Subscription Fee means the monthly or annual (or some other frequency) fee charged by Mobble for access to and use of the Services.
Tax includes any tax, levy, impost, deduction, charge, rate, duty, compulsory loan or withholding that is levied or imposed by a Governmental Agency, and any related interest, penalty, charge, fee or other amount.
Update means any update or upgrade to the App or Portal issued by Mobble from time to time.
Website means the Internet site at the domain www.mobble.io or any other site operated by Mobble.
The following rules apply unless the context requires otherwise:
a. headings are for convenience only and do not affect interpretation;
b. the singular includes the plural, and the converse also applies;
c. nothing in this Agreement is to be interpreted against a party solely on the ground that the party put forward this Agreement or a relevant part of it;
d. if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
e. a reference to a person includes a corporation, trust, partnership, unincorporated body or other entity, whether or not it comprises a separate legal entity;
f. a reference to a clause or Schedule is a reference to a clause of, or Schedule to, this Agreement;
g. a reference to an agreement or document (including a reference to this Agreement) is to the agreement or document as amended, supplemented, novated or replaced, except to the extent prohibited by this Agreement or that other agreement or document;
h. a reference to a party to this Agreement or another agreement or document includes the party's successors, permitted substitutes and permitted assigns (and, where applicable, the party's legal personal representatives);
i. a reference to legislation or to a provision of legislation includes a modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it;
j. a reference to writing includes any method of representing or reproducing words, figures, drawings or symbols in visible or tangible form;
k. a reference to conduct includes an omission, statement or undertaking, whether or not in writing;
l. a reference to an agreement includes any undertaking, deed, agreement and legally enforceable arrangement, whether or not in writing, and a reference to a document includes an agreement (as so defined) in writing and any certificate, notice, instrument and document of any kind;
m. mentioning anything after includes, including, for example, or similar expressions, does not limit what else might be included;
n. a reference to dollars and $ is to Australian currency or such other currency set out in the relevant Order; and
o. a month means a calendar month.