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|1. Contract Level:|
|2. Payment frequency:|
|3. Annual Use Fee:|
|4. Annualised Users:|
|5. Additional User Fee:|
|1. Co-branding of Your Business Name across the Map My Plan platform|
|2. A free trial period of the Co-Branded Map My Plan Platform for 60 days|
|3. All advice provided by the Map My Plan platform is covered by Map My Plan’s Australian Financial Services License (AFSL) (no. 485665)|
|4. Includes call to action prompts within the Platform|
|5. Integration of static .csv files for Client data|
|6. Adviser Portal|
|7. Client reporting function|
|8. Additional customisation can be accommodated with a Customised Enterprise Version of the Map My Plan Platform|
|NB: All fees are ex-GST|
|Signed on behalf of Map My Plan Pty Ltd by its authorised signatory||Electronic agreement on behalf of (Subscriber) by its authorised signatory|
|Date: 2019-06-27||Date: 2019-06-27|
This Service Agreement (Agreement) governs access to the Co-Branded Map My Plan Platform which is provided to You by Map My Plan Pty Ltd, ABN 47 602 457 732 of Level 4, 11 York Street Sydney NSW 2000 (Map My Plan). This Service Agreement constitutes a legally binding Agreement between You and Map My Plan (“Parties”).
By accessing and using the Co-Branded Map My Plan Platform or making it available to any third party, You accept and agree to be bound by this Agreement.
In this Agreement, the following words have the meaning set out below.
Words that are defined in Chapter 7 of the Corporations Act 2001 (Cth) have the same meaning as they have in that Act.
ABN means Your Australian Business Number.
Account means an account that the End User has been allocated by the Adviser on the Map My Plan Platform that requires log-in details for the End User to access. In their Account they will have access to the Financial Fitness Test and their Financial Roadmap.
Additional User Fee means the Fee payable for each End User that exceeds the number of Annualised Users.
Additional Users means End Users in excess of the number of Annualised Users on the last Business Day of each month.
Adviser means an individual who is a financial adviser, to whom you have provided access to your Co-Branded Map My Plan Platform.
AFSL means an Australian Financial Services Licence.
Annual Use Fee means the yearly fee payable for Your Annualised Users to have access to the Co-Branded Map My Plan Platform. For the first Term of this Agreement the amount of the Annual Use Fee is as set out in the Contract Overview section of this Agreement. For each subsequent Term, it is determined in accordance with the following formula:
The greater of:
a. The previous year’s Annual User Fee; and
b. End Users on the Business Day preceding the Contract Date * Additional User Fee * 12.
Where the Annual Use Fee is paid monthly:
Annualised Users means the number of End Users You may allow access to the Co-Branded Map My Plan Platform under this Agreement. For the first Term, the Annualised Users value is set out in the Contract Overview section of this Agreement. For subsequent Terms, the Annualised Users is the total number of End Users on the business day before the Contract Anniversary Date.
Applicable Laws means all acts, regulations, and any relevant subordinate instruments, regulatory guidance and the like issued by an Australian government or industry body which apply to the operation of the Platform.
Business Day means a day other than a Saturday on which banks are open for general banking business in New South Wales.
Client means a client of Yours, to which You provide financial services.
Co-Branded Map My Plan Platform means a website hosted by Map My Plan on which a Co-Branded version of the Platform is made available in accordance with this Agreement.
Contact Person means the Contact Person as nominated in this Agreement or as subsequently communicated to Us, by You.
Contract Anniversary Date means the day every year which is the date the Trial Period ended or was due to end, if payment for access to the Co-Branded Platform was made prior to the Trial Period ending.
Contract Level means the Contract Level that you have elected to purchase (Starter, Executive, Enterprise or AFA Member) in accordance with the Contract Overview in this Agreement.
Cyber Security Breach is a breach of the Map My Plan environment that may include the system being hacked or compromised by an unauthorised person.
End User means any individual who has an Account in the Co-Branded Map My Plan Platform.
End User Data means all information about End Users entered into the Co-Branded Map My Plan Platform and all information and recommendations calculated by the Map My Plan algorithm. This includes the End User’s full name, date of birth, gender, relationship status, dependents, contact details, including but not limited to their email address, savings, assets, investments, credit, superannuation and information about the End User’s goals and aspirations and includes the results, analysis and recommendations as calculated by the Map My Plan algorithm, whether de-identified or not.
Financial Fitness Test means an online questionnaire which provides End Users with an assessment of financial fitness.
Financial Roadmap means the set of recommendations generated by the Map My Plan algorithm on the Co-Branded Map My Plan Platform that is tailored to an End User’s financial goals and situation (as per the information provided about the End User).
Intellectual Property means all current and future copyright and related rights, patent application rights, patent rights, design rights, trade mark rights (whether registered or unregistered) and know-how arising out of or in any way connected with the any documents or material developed or written for the Co-Branded Map My Plan Platform or the Platform in any jurisdiction whatsoever.
Intellectual Property Rights means industrial and intellectual property rights of whatever nature throughout the world conferred on Map My Plan under statute, common law or equity, whether existing now or at any time in the future in relation to the Website or otherwise;
(a) all rights belonging to Map My Plan in respect of or in connection with copyright, inventions (including patents), formulae, databases, business processes and methods, trademarks, service marks, business names, trade names, domain names, designs, confidential information, trade secrets or otherwise;
(b) all concepts, ideas, methods, methodologies and business methods developed in relation to the Website;
(c) the copyright subsisting in all documents and electronically stored files encompassing the things referred to in paragraphs (a) and (b); and
(d) any invention, discovery, or right to apply for a patent, trade mark or design in relation to anything referred to in paragraphs (a), and (b).
Logo means Your Business logo in an electronic format.
Map My Plan Public Website means www.mapmyplan.com.au
Platform means the technology consisting of the online financial planning tools offered by Map My Plan, including but not limited to a Financial Fitness Test and a Financial Roadmap.
Services means the services referred to in clause 4.1 in this Service Agreement.
Term means a period of twelve (12) months.
Trial Period means a period of 60 days, or longer, at the discretion of Map My Plan, where You receive the Co-Branded Map My Plan Platform for no cost.
User means any person who uses the Co-Branded Map My Plan Platform, including End Users, Advisers and the Contact Person.
Website Terms means the Terms and Conditions of Use displayed on the Co-Branded Map My Plan Platform.
You means the Subscriber named in this Agreement and includes all its directors, employees and contractors.
2.1 Grant of licence
Map My Plan grants You a non-exclusive, non-transferrable licence to use the Co-Branded Map My Plan Platform in accordance with this Agreement, but only for the Purpose of assisting You in providing your Clients with financial services.
2.2 Incorporation of Website Terms
By using the Co-Branded Map My Plan Platform, you also agree to be bound by the Website Terms and Conditions. Except as specifically provided in this Agreement, this Agreement prevails over the Website Terms to the extent there is any inconsistency between them.
2.3 Trial Period
2.3.1 When you subscribe to the Co-Branded Map My Plan Platform, You will be entitled to a free trial of the Co-Branded Map My Plan Platform for a period of 60 days.
2.3.2 You may contact Map My Plan to request an extension of the Trial Period for a further 30 days.
2.3.3 Map My Plan, may, at its sole discretion, extend the Trial Period from 60 days to 90 days.
2.3.4 If You decide to not continue beyond the Trial period:
a. You must notify Map My Plan prior to the end of the Trial Period.
b. You will not incur any penalties or owe any Fees to Map My Plan.
c. Your Co-Branded Map My Plan web address/URL will remain available for 30 days after the Trial Period.
d. Clients whose profiles You have entered into the Map My Plan Platform prior to the end of the Trial Period will receive an email, on or after the date the Trial Period was due to end, advising them that they can access their Account via the Map My Plan Public Website.
2.4.1 Map My Plan will incorporate any changes and additional functionality that it generally makes available to the Map My Plan Public Website, into the Co-Branded Map My Plan Platform free of charge, and will give You reasonable advance notice of any such changes if they are material to the operation of Your Co-Branded Map My Plan Platform.
2.5.1 The Co-Branded Map My Plan Platform will include the branding that appears on the Map My Plan Public Website together with the following co-branding features:
a. Your lawfully registered business name or logo, will appear in the top left-hand corner of each page of the Map My Plan Platform;
b. In small font, under Your business name or Logo, will be the words “Powered by Map My Plan”;
c. Your business colour scheme; and
d. You will be provided with a unique URL for your Clients to access Your Co-Branded Map My Plan Platform.
2.6 Call to action prompts
2.6.1 The Co-Branded Map My Plan Platform will include call to action prompts.
2.6.2 Call to action prompts will take the form of buttons located prominently on each page of the Co-Branded Map My Plan Platform.
2.6.3 When an End User activates a call to action prompt, the Co-Branded Map My Plan Platform will generate an automated email that will notify You of the End User’s identity and information about the page that the call to action prompt appeared on.
2.6.4 When an End User activates a call to action prompt, they will receive a pop-up notification that any advice they receive from the Adviser will not be provided by Map My Plan or under its AFSL.
2.6.5 Any advice that an Adviser provides to the End User will be provided under Your AFSL and not that of Map My Plan and You will not hold out that You are the agent or representative of Map My Plan in relation to such advice.
2.6.6 You will comply with Your obligations under the Corporations Act 2001 in relation to the financial services You provide under Your AFSL.
2.7 Adviser Portal
2.7.1 Your Co-Branded Map My Plan Platform will include an Adviser Portal which only the Contact Person and Advisers will have access to.
2.7.2 The Adviser Portal will enable the Contact Person to:
a. View all Clients with an Account on the Co-Branded Map My Plan Platform;
b. Allocate Clients to individual Advisers for the purpose of responding to call to action prompts; and
c. Manage access to the Co-Branded Map My Plan Platform.
2.7.3 The Adviser Portal will enable Advisers to:
a. Upload their Client’s information via a .csv file into the Co-Branded Map My Plan Platform; and
b. Download their Client’s information from the Co-Branded Map My Plan Platform in the form of a .csv file.
2.7.4 The Adviser Portal will enable the Contact Person and Advisers to conduct searches and generate reports on the key metrics of the End Users, who are their Clients.
2.8 Other Features
2.8.1 The Co-Branded Map My Plan Platform will allow Advisers to generate a list of the End Users who have been assigned to them.
2.8.2 End Users and their Advisers will have simultaneous dual login access to the End User’s Account on the Co-Branded Map My Plan Platform.
2.8.3 End Users and their Advisers will both have write access to the End User’s Account on the Map My Plan Platform.
3. Hosting and Use
Map My Plan will arrange for Your Co-Branded Map My Plan Platform to be hosted by a reputable hosting service, to be selected by Map My Plan at its sole discretion.
3.2 Outages and service interruptions
Subject to clause 11.3.2 and the following, Map My Plan will use its reasonable efforts to ensure that the Co-Branded Map My Plan Platform is available 99% of the Term:
3.2.1 Map My Plan may restrict access to the Co-Branded Map My Plan Platform for maintenance purposes, but not for not more than 4 hours per month and 1 hour in any week during the Term;
3.2.2 Map My Plan may restrict access to the Co-Branded Map My Plan Platform for up to 24 hours in the case of any Cyber Security Breach.
4.1 Services to be provided
4.1.1 Map My Plan will provide the Co-Branded Map My Plan Platform to You as described in this Agreement.
4.1.2 Map My Plan will provide Advisers with email assistance within 2 Business Days of a request, if an Adviser has difficulty uploading Client data to the Co-Branded Map My Plan Platform via a .csv file or downloading Client data to a .csv file from the Co-Branded Map My Plan Platform.
4.2 Assistance to be provided by You
4.2.1 You must provide Map My Plan with the information it requires to Co-Brand the Map My Plan Platform for You, including Your Logo, ABN, the name of Your Contact Person and their email address, and other content, URLs, access and assistance as is required to enable Map My Plan to provide the Services.
4.2.2 If You fail to provide the assistance referred to in clause 4.2.1 adequately or at all, at its absolute discretion, Map My Plan shall not be obliged to provide all or any part of the Services.
5.1 Currency of Information
5.1.1 You are responsible for ensuring that all content that You provide to enable the Co-Branding of the Map My Plan Platform, is at all times accurate and up to date and that you do not breach the Privacy Act or other legal obligations in relation to the provision of the information.
5.1.2 Map My Plan is responsible for ensuring that the content and operation of the Co-Branded Map My Plan Platform (other than content provided by You and End Users) is at all times accurate and up to date with the Applicable Laws.
5.1.3 It is Your responsibility to keep Your details up to date including, but not limited to, the details of Your nominated Contact Person.
5.1.4 Map My Plan accepts no responsibility for ensuring that End Users keep their data and details are up to date on Your Co-Branded Map My Plan Platform.
5.1.5 Before You provide advice to an End User, it is Your responsibility to ensure that their data and details are up to date and correct.
5.2 Financial product advice
5.2.1 The financial product advice provided on the Co-Branded Map My Plan Platform that is calculated by the Map My Plan algorithm is provided by Map My Plan this includes the advice on the Website that relates to each goal and objective and the advice provided in the Statement of Advice (SoA) on the Website. Consequently, this is provided under Map My Plan’s AFSL.
5.2.2 Any other financial services that are provided to the End User are provided by You. You acknowledge that You are not authorised to provide any financial services under Map My Plan’s AFSL.
6.1.1 This Agreement shall be for a period of one (1) year (Term).
6.1.2 The Term automatically renews on the Contract Anniversary Date unless You terminate the Agreement in accordance with Clause 12.
6.1.3 You can terminate this Agreement in accordance with Clause 12 of this Agreement.
7. Fees and GST
7.1.1 You must pay Map My Plan the following Fees:
a. An Annual Use Fee; and
b. Additional User Fees based on the monthly number of Additional Users.
7.2 Payment of Fees
7.2.1 Payment of Fees in clause 7.1.1 is to be made via credit card.
7.2.2 You agree to pay the Annual Use Fee for the Co-Branded Map My Plan Platform within 14 days of the Trial Period ending.
7.2.3 If payment of the Annual Use Fee for the Co-Branded Map My Plan Platform is made prior to the end of the Trial Period, the remaining days in the Trial Period will be added to the end of the first year Term.
7.2.4 You may elect to pay the Annual Use Fee yearly or monthly and this election may be updated at any time by contacting Map My Plan.
7.2.5 Where the Annual User Fee is paid monthly, it must be paid on the closest Business Day each month to the day on which the first payment was made.
7.2.6 The Additional User Fee must be paid on the first Business Day of every month based on the number of Additional Users on the last Business Day of the previous month.
7.3 GST payable
7.3.1 If GST is payable in relation to a supply made under or in connection with this Agreement, then:
a. You must pay an additional amount to Map My Plan equal to the amount of that GST; and
b. Any additional amount payable in accordance with this clause must be paid on demand and Map My Plan must provide a tax invoice to You no later than that time.
7.3.2 If the GST payable by Map My Plan varies from the additional amount paid by You under clause 7.3.1(b) such that a further amount of GST is payable by Map My Plan or Map My Plan receives a refund or credit of any GST then:
a. Map My Plan will provide a corresponding refund or credit to You or will be entitled to receive the amount of that variation from You;
b. Any payment, credit or refund under this clause is deemed to be a payment, credit or refund of the additional amount payable under clause 7.3.1(b);
c. Map My Plan must provide You with an adjustment note within five (5) Business Days of the becoming aware of the relevant adjustment; and
d. Any refund, credit or payment must be provided no later than ten (10) Business Days after You receive the relevant adjustment note.
7.3.3 Any consideration that is specified to be inclusive of GST must not be taken into account in calculating the GST payable in relation to a supply for the purpose of this clause .3
7.3.4 Quoted fees are exclusive of GST.
8. End User Data
8.1 Ownership of End User Data
8.1.1 Map My Plan is the owner of all User Data collected via the Co-Branded Map My Plan Platform.
8.2 Map My Plan’s rights
8.2.1 Except as permitted by clause 8.2.2, Map My Plan must not use any User Data for any purpose whatsoever except to perform its obligations under this Agreement.
8.2.2 Notwithstanding clause 8.2.1, Map My Plan may use User Data to do the following:
a. Market to End Users and Advisers as part of its standard marketing practices;
b. Use End User Data which has been de-identified and aggregated so that the identity of the End User cannot be discerned for any purpose whatsoever.
9. Intellectual property
9.1 Intellectual property of Map My Plan
9.1.1 You agree that Map My Plan is the exclusive owner of the Co-Branded Map My Plan Platform and all Intellectual Property rights associated with and developed for the Co-Branded Map My Plan Platform, other than your name, Logo(s), trademarks and URLs and any content You supply for inclusion on the Co-Branded Map My Plan Platform.
9.1.2 You must do all things reasonably requested by Map My Plan to confirm Map My Plan’s ownership of those rights.
9.2 Restrictions on use
You agree that You will not and will ensure that any User does not:
9.2.1 Modify, adapt, alter, translate, copy or create derivative works based on the Co-Branded Map My Plan Platform;
9.2.2 Sub-licence, lease, rent or loan the Co-Branded Map My Plan Platform;
9.2.3 Transfer or provide access to the Co-Branded Map My Plan Platform to any third party other than in accordance with this Agreement; or
9.2.4 Reverse engineer, decompile, disassemble or otherwise attempt to derive the source code for the Co-Branded Map My Plan Platform.
10.1 Reasonable care
10.1.1 Map My Plan represents and warrants that it will exercise reasonable care and skill in providing the Co-Branded Map My Plan Platform and the Services in accordance with the terms of this Agreement.
10.1.2 You acknowledge that the Co-Branded Map My Plan Platform and the Services are provided on an “as is” basis, and Your use and provision of the Services is at Your own risk.
10.2 Warranties by Map My Plan
Map My Plan warrants that:
10.2.1 It holds an Australian financial services licence (AFSL 485665) which authorises it to provide all financial product advice provided through the Co-Branded Map My Plan Platform;
10.2.2 The Co-Branded Map My Plan Platform will perform in substantially the same manner as was demonstrated to You, if at all, and will be free of material errors or defects;
10.2.3 All Services to be provided by Map My Plan under this Agreement will be provided in a good and workmanlike manner; and
10.2.4 The Co-Branded Map My Plan Platform and use of it as contemplated by this Agreement will not infringe the rights of any third party or contravene any Applicable Law.
The warranties in clause 10.1 do not apply to the extent that any infringement which arises as a result of Your acts or omissions.
10.4 Infringement notices
If any claim is made by a third party asserting that the Co-Branded Map My Plan Platform infringes its rights, including any Intellectual Property rights, then Map My Plan may:
10.4.1 Seek to obtain consent to use of the right for the purposes of the Co-Branded Map My Plan Platform; or
10.4.2 Rework or replace the Co-Branded Map My Plan Platform so that it no longer infringes any third party rights, so long as any replacement Portal retains the general ‘look and feel’ and operational functionality and characteristics of the original Co-Branded Map My Plan Platform; or
10.4.3 If neither of the above is feasible in Map My Plan’s opinion, terminate this Agreement without penalty.
10.5 Warranties by You
You warrant that:
10.5.1 You hold an Australian Financial Services Licence or are an Authorised representative of an Australian Financial Services Licensee.
10.5.2 The Australian Financial Services Licence under which You operate (as either a Licensee or an Authorised Representative) contains the authorisations that entitle You to provide the financial services that You provide to End Users of the Co-Branded Map My Plan Platform.
10.5.3 You are the sole owner of the Intellectual Property Rights in the information You provide to Map My Plan that it requires to Co-Brand the Map My Plan Platform for You.
11. Limitation of Liability
11.1 Indemnity from Map My Plan
Subject to the Website Terms, Map My Plan indemnifies You against all losses, costs and expenses incurred by You as a result of a breach by Map My Plan of its obligations under this Agreement, except to the extent that the losses, costs and expenses arise from your acts or omissions, in which case the amount payable by Map My Plan shall be reduced proportionately to reflect the share of responsibility that You bear for the losses, costs and expenses.
11.2 Indemnity from You
11.2.1 You indemnify Map My Plan against all losses, costs and expenses incurred by Map My Plan in relation to a breach by You of your obligations under this Agreement except to the extent that those losses, costs and expenses arise out of the acts or omissions of Map My Plan or a breach by Map My Plan of this Agreement, in which case the amount payable by You shall be reduced proportionately to reflect the share of responsibility that Map My Plan bears for the losses, costs and expenses.
11.2.2 You indemnify Map My Plan against all losses, costs and expenses incurred by Map My Plan in relation to any threatened or actual legal action taken against Map My Plan by Your Client, arising out of or connected with financial services provided under Your AFSL or a breach of this Agreement by You.
11.3 Exclusions and Cap
11.3.1 Notwithstanding clause 11.1, Map My Plan is not liable for any indirect loss, consequential loss, loss of profit, revenue, data or goodwill suffered by You (howsoever arising) or for any wasted management time or failure to reconstitute data.
11.3.2 Map My Plan accepts no liability for any interruptions to the Co-Branded Map My Plan Platform arising directly or indirectly from any cause beyond Map My Plan’s reasonable control.
11.3.3 Map My Plan’s maximum aggregate liability to You under or in connection with this Agreement, in respect of any direct loss (or any other loss to the extent that such loss is not excluded by clauses 11.3.1-11.3.2 above or otherwise) whether such claim arises in contract or in tort shall not exceed the amount of the Fees paid in the twelve (12) month period before the cause of action arose.
11.4 Force majeure
11.4.1 A Party is not liable for failure to perform, or delay in performing, an obligation (except an obligation to pay money) if the Party satisfies all of the following conditions in relation to the failure or delay:
a. The failure or delay arose from a cause beyond the reasonable control of that Party. A cause beyond the reasonable control of a Party includes an act of God, strike, lockout, other industrial disturbance or labour difficulty, war, act of public enemy, blockade, revolution, riot, insurrection, civil commotion, lightning, storm, flood, fire, earthquake, explosion, embargo, unavailability of any essential equipment or materials, unavoidable accident, lack of transportation, or anything done or not done by or to a person, government or other competent authority, except the Party relying on force majeure.
b. The Party took all reasonable precautions against that cause and did its best to mitigate its consequences.
c. The Party gave each other Party notice of the cause as soon as practicable after becoming aware of it.
11.4.2 If the cause and the resulting failure or delay lasts for more than three (3) months, either Party is entitled to end this Agreement immediately by giving the other Party written notice.
12.1 Termination on Notice
12.1.1 You may terminate this Agreement by giving Map My Plan at least 30 days notice in writing before the end of each current Term.
12.1.2 You will not incur any penalties or fees if You terminate this Agreement in accordance with clause 12.1.1.
12.1.3 If You terminate this Agreement in accordance with clause 12.1.1, End Users will receive an email notifying them that they can access their Account via the Map My Plan Public Website.
12.2 Default by Map My Plan
You may terminate this Agreement immediately by written notice to Map My Plan if any of the following situations occur:
12.2.1 Map My Plan fails to remedy any default in performance of its obligations under this Agreement within twenty (20) Business Days after receipt of written notice;
12.2.2 Map My Plan does not hold an AFSL which authorises it to provide all financial product advice provided through the Co-Branded Map My Plan Platform; or
12.2.3 Map My Plan goes into liquidation or has a receiver or receiver and manager appointed to it or any part of its assets, enters into a scheme of arrangement with creditors or suffers any other form of external administration.
12.3 Default by You
Map My Plan may immediately terminate this Agreement by written notice to You if any of the following situations occur:
12.3.1 You fail to remedy any default in performance of your obligations under this Agreement (including payment of Fees) within twenty (20) Business Days after receipt of written notice;
12.3.2 You cease to hold an AFSL or cease to be an authorised representative of an AFSL holder, which authorises You to provide the financial services you are providing to End Users.
12.3.3 You go into liquidation or have a receiver or receiver and manager appointed to You or any part of your assets, enter into a scheme of arrangement with creditors or suffer any other form of external administration;
On termination of this Agreement, all obligations owed by the Parties (other than payment of any outstanding fees) will cease and the Co-Branded Map My Plan Platform will no longer be made available to You or to End Users. End Users will be notified that they will have access to the Map My Plan Public Website. Clauses 8, 9, 10, 11 and 13 survive termination or expiry of this Agreement.
13. Confidential Information
For the purpose of this clause, Confidential Information means in relation to either Party, information (whether in oral, written or electronic form) belonging or relating to that Party, its business affairs, technologies, designs, personnel, copyrights, concepts, methodologies, software or activities which is not in the public domain and which:
13.1.1 Either Party has marked as confidential or proprietary;
13.1.2 Either Party, orally or in writing has advised the other Party is of a confidential nature; or
13.1.3 Due to its character or nature, a reasonable person in a like position and under like circumstances would treat as confidential
but does not include information which:
13.1.4 Is or comes into the public domain through no fault of the Recipient, its officers, employees, agents or contractors;
13.1.5 Is lawfully received by a Party from a third party free of any obligation of confidence at the time of disclosure;
13.1.6 Is independently developed by the Recipient, its officers, employees, agents or contractors; or
13.1.7 Is required by Applicable Laws, by court or governmental order to be disclosed.
13.2 Use of Confidential Information
Each Party must hold in strict confidence all Confidential Information which comes into its possession, ensuring the same degree of care as is used by the recipient to protect its own Confidential Information, but in no event not less than a reasonable degree of care. The recipient of the Confidential Information (Recipient):
13.2.1 May use the Confidential Information of the disclosing party (Disclosing Party) only for the purposes of this Agreement; and
13.2.2 Must keep confidential all Confidential Information of the Disclosing Party except:
a. For disclosures permitted under this Agreement; and
b. To the extent (if any) the Recipient is required by law to disclose any Confidential Information.
13.3 Disclosure to employees and contractors
A Recipient may disclose the Confidential Information of a Disclosing Party to officers or employees or contractors of the Recipient who:
13.3.1 Have a need to know (and only to the extent that each has a need to know) that Confidential Information for the purposes of this Agreement; and
13.3.2 Have been directed by the Recipient to keep confidential all Confidential Information of the Disclosing Party; and
13.3.3 In the case of contractors only, have contracted in writing to keep confidential all information labelled as confidential or notified to them by the Recipient as confidential.
14. Dispute Resolution
14.1 Good faith
The Parties must attempt in good faith to resolve any dispute between them in connection with this Agreement by negotiation.
If any dispute cannot be resolved by negotiation between the Parties within ten (10) Business Days or such further period as the Parties agree is appropriate, then within the following ten (10) Business Days the Parties must seek to agree on the procedural rules and a timetable for resolving the dispute through mediation by a mediator agreed upon by the Parties, or if the Parties cannot agree, a mediator appointed by the Australian Commercial Disputes Centre or any body which replaces it.
14.3 No proceedings
A Party may not commence court proceedings or arbitration (other than an urgent interlocutory application) relating to any dispute arising from this Agreement unless that Party has complied with clauses 14.1 and 14.2.
15.1 Giving notices
Any notice given under this Agreement must be in writing and, if sent to the last known postal or email address of the other Party, is deemed to be received:
15.1.1 Three (3) Business Days after the date of posting, if posted; or
15.1.2 The date of sending, if sent by email; or
15.1.3 On the next succeeding Business Day, if received or deemed to be received on a day which is not a Business Day.
15.2 Changes to contact details
Each of the Parties will give notice to the other of any change of address, telephone and facsimile numbers, email address and the like as soon as practicable.
16.1.1 Unless the context otherwise requires:
a. A word which denotes the singular denotes the plural and vice versa;
b. Any gender denotes the other genders; and
c. A person includes an individual, a body corporate and a government body.
16.1.2 Unless the context otherwise requires, a reference to:
a. Any legislation includes any regulation or instrument made under it and where amended, re-enacted or replaced means that amended, re-enacted or replacement legislation;
b. Any other Agreement or instrument, where amended or replaced, means that Agreement or instrument as amended or replaced;
16.2 Entire Agreement
16.2.1 This Agreement and the Website Terms contain everything the Parties have agreed in relation to the matters it deals with. No Party can rely on an earlier document, or anything said or done by another Party, or by a director, officer, agent or employee of that Party, before this Agreement was executed, except as permitted by law.
16.3 Relationship of the Parties
Nothing in this Agreement creates any agency, partnership or other form of joint enterprise between the Parties. Neither Party will have authority to contract for or bind the other.
16.4 Execution of separate documents
This Agreement is properly executed if each party executes either this document or an identical document. In the latter case, this Agreement takes effect when the separately executed documents are exchanged between the Parties.
If a clause or part of a clause of this Agreement can be read in a way that makes it illegal, unenforceable or invalid, but can also be read in a way that makes it legal, enforceable and valid, it must be read in the latter way. If any clause or part of a clause is illegal, unenforceable or invalid, that clause or part is to be treated as removed from this Agreement, but the rest of this Agreement is not affected.
16.6 Assignments and variations
16.6.1 If You ever hold, or are deemed to hold, any right, title or interest in the Platform or the Co-Branded Map My Plan Platform, or any of the underlying intellectual property, You irrevocably assign any such right, title or interest to Map My Plan and will execute all documentation required to confirm this assignment.
16.6.2 A Party must not assign any of its rights or obligations under this Agreement without the prior written consent of the other Party.
16.7 Governing law and jurisdiction
This Agreement is governed by the laws of New South Wales. The Parties submit to the non-exclusive jurisdiction of its courts and courts of appeal from them. The Parties will not object to the exercise of jurisdiction by those courts on any basis.
Version: May 2018