TERMS AND CONDITIONS
A. KEY TERMS
A.1 The following terms are used regularly throughout these Terms of Service and have a particular meaning:
(a) UgoRound means the UgoRound application made accessible from the web based administration environment
(b) Agreement means the agreement formed in accordance with these Terms of Service between UgoRound Australia and the User.
(c) App means the application available for download from the App store or Google Play.
(d) Citizen means a member of the community over 13 yrs old.
(e) Fee means any fee paid by a User for access to or use of UgoRound.
(f) Organisation means any agency, government agency, school, club, charitable society or any other organization that uses UgoRound.
(g) Organisation Identifier means the name, logo or any other words or marks associated with an Organisation or used to identify it.
(h) UgoRound Australia means UgoRound Australia Pty Ltd trading as UgoRound Australia Pty Ltd ABN 87 617 095 422.
(j) Staff Member means any employee, volunteer or other personnel of an organisation, including authorised members of an organization.
(k) Admin means the primary authorised user of an organization.
(l) User means any citizen, organisation and staff member that uses UgoRound.
(m) Group Member means a staff member enrolled in a group created by an Admin of an organization
(a) Administrators (Item C)
(b) Organisations (Item D)
(c) Staff Members (Item E)
(d) Citizens (Item F)
B.2 In addition to any other express or implied consents, by using UgoRound the User accepts and agrees to the terms of:
(a) This Agreement; and
C.1 UgoRound enables the Admin to:
(a) Send alerts such as Warnings; Incidents or Notifications via a push message to a geo-fenced location;
(b) Communicate with Staff Members of their organization enrolled in groups;
(c) Input Information about their staff and organization
(d) Make payments to UgoRound Australia Pty
(e) View a record of all their activities within UgoRound.
C.2 The Administrator agrees and accepts that:
(a) UgoRound is a passive conduit for information and that UgoRound is not responsible for messages sent through the platform or the content shared via the system;
(b) UgoRound is not obligated to monitor, screen, or preview any communication to users on the platform
(c) UgoRound shall not be liable for any errors, incorrect information, omissions, defamatory, offensive, or any unlawful content transmitted via the platform;
(d) To correspond with the staff via the platform, they must use the staff contact information;
(e) UgoRound will never share Information such as messages sent, and other personal information of their Organisation;
(f) UgoRound will enable the sending to the Group Members emails, push messages (to App) and text messages on behalf of the Organisation and/or Staff Members;
(g) Any use by staff of the organization will be their responsibility to authorize, monitor and ensure are properly trained to use the system;
(h) That any messages sent by the Organization may contain content such as images, videos, sound files or links to a third party website and that UgoRound does not control, monitor, endorse or accept responsibility for said content;
(i) It’s the responsibility of the staff or administrator to take precautions that the content/message sent does not contain destructive links, virus files or any items of a malicious nature.
(j) It’s the responsibility of the staff or administrators to take precautions that the content/message sent does not contain offensive, abusive, pornographic, copyrighted, trade secrets, government secrets or any illegally obtained information
(k) It’s the responsibility of staff and administrators to ensure messages sent do not cause harm, are invasive, harass, are defamtory or humiliate receivers of the message
D.1 UgoRound enables the Organisation to:
(a) Upload and input staff member information;
(b) Input geo-fenced locations on a mapping platform
(c) Send messages to users entering/exiting or dwelling in created geo-fenced locations
(d) Authorise Staff Members to access and use UgoRound;
(e) Create push messages, emails and sms messages
(f) Manage, monitor and update communications sent
(g) View a record of all staff communication activities within their UgoRound platform
D.2 The Organisation agrees that:
(b) It shall only use UgoRound for its intended purpose as set out in this Agreement;
(c) It shall comply with all anti-SPAM legislation in its jurisdiction;
(d) It is solely responsible for the use of any information uploaded or input into UgoRound by any Staff Member; and
(e) It grants UgoRound Australia a royalty free licence to use any Organisation Identifier in any form, media or technology for the purpose of promoting or marketing UgoRound
(f) It’s licence to use UgoRound, as provided for in the General Conditions and any contractual agreement/s is binding and is subject the payment of all necessary Fees.
(a) Any person who registers an Organisation on UgoRound warrants he or she is an authorised representative of that Organisation, with the requisite authority to bind the Organisation to this Agreement.
E.1 Staff Members enrolled and invited by an Organization agree:
(a) To use UgoRound in accordance with the rights and obligations of the Organisation that authorises their access
(b) To not upload copyrighted photographs or photograph people without their consent to do so; or upload material of a pornographic, offensive, abusive or destructive intent;
(c) Staff Members acknowledge that UgoRound accepts no responsibility for content sent as a report or shared via the share options on a smart phone;
(d) Staff Members acknowledge all reports sent will be received by operators at UgoRound Australia Pty Ltd headquarters and/or country office locations;
(e) Staff Members acknowledge that the UgoRound reporting tool does not replace your cities current emergency services contact system, and that any life threatening or security situation should be communicated direct to relevant authorities;
(f) Staff Members acknowledge and understand messages sent and intended to be triggered via a geo-fence may only be received if their smartphone has enabled location based services and that there is a sufficiently strong GPS or Wi-Fi service available;
(g) Staff Members acknowledge that their location and movement data may be tracked by the Administrators of the Organizations and by accepting an invite to join a group, your agreement may or may not have been obtained by the organization and use of the smartphone app therefore implies consent;
(h) Staff Members acknowledge that if they turn off location based services or are not in a cellular or Wi-Fi service zone, that UgoRound will not be responsible for any messages or information not received
F.1 Citizen Users agree that:
(a) Users under 18 years old but over 13 years old have been authorised by their Parents/Caregivers to use the smartphone app.
(b) Users who wish to use the reporting tool will not upload or photograph people without their consent to do so, or upload material of a pornographic, offensive, abusive or destructive intent;
(c) Users acknowledge that UgoRound accepts no responsibility for content sent as a report or shared via the share options on a smart phone;
(d) Users acknowledge all reports sent will be received by operators at UgoRound Australia Pty Ltd headquarters or country office locations;
(e) Users understand that reports sent via the reporting tool may be delayed by up to 48hrs before being sent to relevant authorities;
(f) Users acknowledge that the UgoRound reporting tool does not replace your cities current emergency services contact system, and that any life threatening or security situation should be communicated direct to relevant authorities;
(g) Users acknowledge and understand messages sent and intended to be triggered via a geo-fence may only be received if their smartphone has enabled location based services and that there is a sufficiently strong GPS or WiFi service available;
(h) Users acknowledge any advice, instruction, warning, news, or any other information received may be sent by Agencies and Organizations using the UgoRound Platform and the message will describe in the detailed section from whom the message has been sent.
G. ELECTRONIC AUTHORITY
G.1 The User agrees that
(a) when you download the Smartphone App that your consent, authority or agreement to use UgoRound is so implied and accepted as an electronic transaction and warrants that such transaction shall be binding on the party;
(b) The User is under no obligation to use the app or follow warnings, instructions, messages or any other notification received by any Organization using the platform;
(c) Delete App at any time;
(d) Disable location based services at any time
H.1 The Administrator of the Organization is solely responsible for verifying the identity of any staff member or group member enrolled to use the system;
I. TERM & LIMITATIONS
The Organizations license to access UgoRound shall be ongoing until terminated by either party in accordance with this Agreement.
I.2 Limitations on Use. UgoRound may limit or restrict access to UgoRound from time-to-time as it sees fit, including (but not limited to):
(a) Entities. UgoRound may restrict access only to reputable and/or registered Organisations; and
(b) Location. UgoRound may restrict access to UgoRound to certain jurisdictions where it is able to offer UgoRound.
(a) The User must register able staff members in UgoRound to use UgoRound.
(b) UgoRound may set any registration requirements in its absolute discretion.
K. CONFIDENTIAL INFORMATION
K.1 UgoRound will keep confidential all information that it becomes aware of regarding the User’s:
(a) Personal information;
(b) Student/Child information; and
(c) Business, employees and contractors;
L.1 Either party may end this Agreement at any time by 30 days’ written notice to the other party.
L.2 Where UgoRound terminates this Agreement without cause, it shall provide a pro-rata refund for any fees paid in advance.
M. DISCLAIMER – THIRD PARTY SERVICES
M.1 The User acknowledges that UgoRound is dependent on third-party services, including but not limited to banks, credit card providers, BPAY and telecommunications services.
M.2 The User agrees that UgoRound shall not be responsible or liable in any way for interruptions to the availability of UgoRound due to third-party services.
N.1 Governing Law. New South Wales, Australia
N.2 Reference City. Sydney.
1 EFFECT OF SPECIAL CONDITIONS
1.1 The parties may agree to any Special Conditions to this Agreement in writing. Where the parties make such Special Conditions those Special Conditions shall prevail over any inconsistency with any other provisions of this Agreement.
1.1 The User wishes to access UgoRound provided by UgoRound Australia.
1.2 The terms and conditions in this Agreement govern the provision of UgoRound to the User by UgoRound Australia.
2.1 The following definitions apply in this document:
(a) ABN means Australian Business Number.
(b) ACN means Australian Company Number.
(c) Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in the Reference City set out in item L of the Particulars.
(d) Commencement Date means the date set out in this Agreement.
(e) Confidential Information means all information (whether or not it is described as confidential) in any form or medium concerning any past, present or future business, operations or affairs of either party, including, without limitation:
i All technical or non-technical data, formulae, patterns, programs, devices, methods, techniques, plans, drawings, models and processes, source and object code, software and computer records;
ii All business and marketing plans and projections, details of agreements and arrangements with third parties, and customer and supplier information and lists;
iii All financial information, pricing schedules and structures, product margins, remuneration details and investment outlays;
iv All information concerning any employee, customer, contractor, supplier or agent of the relevant party;
v The party's policies and procedures; and
vi All information contained in this document, But excludes information that the other party can establish:
vii Is known by or is in the other party's possession or control other than through a breach of this document and is not subject to any obligation of confidence; or
viii Is in the public domain other than by a breach of this document or any obligations of confidence.
(f) Corporations Act means the Corporations Act 2001 (Cth).
(g) Fees means the fees and charges as set out in Services Agreement as the Particulars.
(h) Force Majeure 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:
i Act of God, lightning, storm, flood, fire, earthquake or explosion cyclone, tidal wave, landslide, adverse weather conditions;
ii Act of public enemy, war (declared or undeclared), terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic;
iii The effect of any change in applicable laws, orders, rules or regulations of any government or other competent authority; and
iv Embargo, inability to obtain necessary materials, equipment or facilities, or power or water shortage.
(i) General Conditions means the terms and conditions set out in the section of this Agreement entitled “General Conditions”.
(j) GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(k) Intellectual Property means all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property;
(l) Intellectual Property Rights means, for the duration of the rights in any part of the world, any Moral Rights, industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property, applications for the registration of any Intellectual Property and any improvements, enhancements or modifications to any Intellectual Property registrations.
(m) Health Information has the meaning given to it in the Privacy Act.
(n) Moral Rights means:
i Moral rights pursuant to the Copyright Act 1968 (Cth);
ii Or any rights analogous to the rights set out in Article 6bis of the Berne Convention for Protection of Literary and Artistic Works 1886 (as amended from time to time).
(o) Particulars means this Agreement’s details and variables set out in the section of this Agreement entitled “Particulars”.
(p) Pricing means the pricing set out in this Agreement or as notified to the User in writing by UgoRound Australia from time-to-time.
(q) Privacy Act means the Privacy Act 1989 (Cth).
(s) Solution means the solution described in the Particulars.
(t) Special Conditions means the terms and conditions set out in the section of this agreement entitled “Special Conditions”.
(u) Tax Invoice has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(v) User Content means data that is uploaded or input into UgoRound by the User or that forms part of the User’s Intellectual Property.
2.2 Headings are only for convenience and do not affect interpretation. The following rules apply unless the context requires otherwise:
(a) The singular includes the plural and the opposite also applies.
(a) If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.
(b) A reference to a clause refers to clauses in this Agreement.
(c) A reference to legislation is to that legislation as amended, re enacted or replaced, and includes any subordinate legislation issued under it.
(d) Mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included.
(e) A reference to a party to this Agreement or another agreement or document includes that party’s successors and permitted substitutes and assigns (and, where applicable, the party’s legal personal representatives).
(f) A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.
(g) A reference to information is to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets.
3. APPLICATION AND DISCLAIMER
3.1 This Agreement applies to use of and access to UgoRound.
(a) Where the User does not accept the terms and conditions of this Agreement, the User must immediately cease using UgoRound.
(b) This Agreement may be updated by UgoRound Australia at its absolute discretion from time-to-time, and unless stated otherwise by UgoRound Australia in writing, such updates shall come into effect for use of UgoRound at the User’s next login after the User receives written notice of the update(s).
(c) UgoRound does not warrant that solution will operate error free or without interruption. In the event of a disruption of service, UgoRound will advise all Administrators of Organmziatios within 24hrs. In no event shall UgoRound be liable for any loss, property damage, personal injury, or death arising from a disruption of service.
4.1 UgoRound is the product described in the Particulars.
4.2 UgoRound is only accessible to the User for the term set out in the Particulars.
4.3 The User agrees and accepts that UgoRound is:
(a) Hosted by UgoRound Australia and shall only be installed, accessed and maintained by UgoRound Australia, accessed using the internet or other connection to UgoRound Australia servers and is not available ‘locally’ from the User’s systems; and
(b) Managed and supported exclusively by UgoRound Australia from UgoRound Australia servers and that no ‘back-end’ access to UgoRound is available to the User unless expressly agreed in writing.
4.4 As a hosted and managed service, UgoRound Australia reserves the right to upgrade, maintain, tune, backup, amend, add or remove features, redesign, improve or otherwise alter UgoRound.
4.5 UgoRound Australia shall not exercise its rights under clause 4.4 in a manner that would intentionally cause the User to lose access to User Content or fundamentally decrease the utility of UgoRound to the User, other than in accordance with the terms of this Agreement.
5.1 By accepting the terms and conditions of this Agreement, the User is granted a limited, non-exclusive and revocable license to access and use UgoRound for the duration of this Agreement, in accordance with the terms and conditions of this Agreement.
5.2 UgoRound Australia may issue the license to the User on the further terms or limitations (including the number of users or volume of use or transactions) as it sees fit.
5.3 UgoRound Australia may revoke or suspend the User’s license(s) in its absolute discretion for any reason that it sees fit, including for breach of the terms and conditions in this Agreement by the User or any of its users. UgoRound Australia will ordinarily advise the User of any suspension or revocation however it is under no obligation to do so.
6.1 The User agrees that it shall only use UgoRound for legal purposes and shall not use it to engage any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by UgoRound Australia in its discretion.
7. AUTHORISED USERS
7.1 The User shall authorise users to access UgoRound in its absolute discretion. UgoRound Australia accepts no liability for access to User Content by users authorised by the User or using login details of users authorised by the User.
7.2 The User is solely responsible for the security of its username and password for access to UgoRound.
7.3 In the event the security of the User’s username and/or password for access to UgoRound is breached, or the User suspects has been breached, it is the responsibility of the User to change these details on UgoRound.
7.4 The User is responsible for ensuring that users comply with this Agreement in full and are liable for any breach of them.
8. CUSTOMER DATA
8.1 UgoRound Australia obtains no right, title or interest in User Content including any Intellectual Property found within it. UgoRound Australia accepts no liability for the content of User Content.
8.2 The User is responsible for the accuracy, quality and legality of User Content and the User’s acquisition of it, and the users that create, access and/or use User Content.
8.3 Despite clause 8.1 UgoRound Australia shall be authorised to permanently delete User Content where outstanding Fees remain unpaid in accordance with clauses 10 and 11.
8.4 UgoRound Australia shall not access, use, modify or otherwise deal with User Content except where required by compulsion of law or upon the User’s authority (such as to provide support for UgoRound).
9.3 UgoRound Australia makes no warranty as to the suitability of UgoRound in regards to the Organisation’s privacy obligations at law or contract, and it is the Organisation’s responsibility to determine whether UgoRound is appropriate for the Organisation’s circumstances.
10.1 The User agrees to pay all Fees as and when they fall due and to the extent permissible by law. Fees are non-cancellable and/or non-refundable once ordered or paid.
10.2 UgoRound Australia may introduce new services with corresponding Fees by giving the User written notice of their availability and applicability.
10.3 UgoRound Australia shall maintain all Fees for the term of the licence paid for by the Organisation.
10.4 UgoRound Australia shall notify the User of any changes to existing Fees no less than 14 days before the end of the term of the Organisation’s licence.
10.5 UgoRound Australia may revoke or suspend the User’s license to access UgoRound for unpaid Fees without liability.
10.6 Where UgoRound Australia:
(a) Is required to perform any services for the User outside of what is set out in this Agreement or otherwise in writing; and
(b) Is subject to delays caused by changes or complexities outside of its control (and not caused by its breach of this Agreement); then
The User agrees that UgoRound Australia shall be entitled to charge the User an additional amount that is reasonable for the service performed.
10.7 All transactions are processed in US Dollars;
10.8 GST is applicable to any Fees charged by UgoRound to Users within Australia. Unless expressed otherwise, all Fees shall be deemed exclusive of GST. UgoRound will provide the Member with a Tax Invoice for its payment.
10.9 No refunds of Fees are offered other than as specified in this Agreement or as required by law.
11. INVOICING & PAYMENTS
11.1 UgoRound Australia shall issue the User a Tax Invoice for all Fees for which GST applies.
11.2 The terms of payment set out in the Fees shall apply.
11.3 Should the User dispute a Tax Invoice, the User must notify UgoRound Australia of the disputed item within 5 Business Days of the date of the Tax Invoice. The User must pay the amount of the Tax Invoice not in dispute within the prescribed payment period.
11.4 Overdue Tax Invoices shall accrue interest at the rate of 1.5% per month, or in default, the maximum rate of penalty interest prescribed under law.
11.5 The User authorises UgoRound Australia to use the User’s information for the purposes of obtaining a credit assessment or to otherwise make investigations as to the User’s payment history.
12.1 Security. UgoRound Australia takes the security of UgoRound and the privacy of its users very seriously. The User agrees that the User shall not do anything to prejudice the security or privacy of UgoRound Australia’s systems or the information on them.
12.2 Transmission. UgoRound Australia shall do all things reasonable to ensure that the transmission of data occurs according to accepted industry standards. It is up to the User to ensure that any transmission standards meet the User’s operating and legal requirements.
12.3 Storage. UgoRound Australia may limit the amount of data that the User stores in UgoRound, and shall advise the User of such. Data that is stored with UgoRound Australia shall be stored according to accepted industry standards.
12.4 Backup. UgoRound Australia shall perform backups of its entire systems in as reasonable manner at such times and intervals as is reasonable for its business purposes. UgoRound Australia does not warrant that it is able to backup or recover specific User Content from any period of time unless so stated in writing by UgoRound Australia.
13.1 Solution. By accepting the terms of this Agreement the User agrees that UgoRound Australia shall provide access to the solution to the best of its abilities, however it accepts no responsibility for ongoing access to UgoRound.
14. INTELLECTUAL PROPERTY
14.1 Trademarks. UgoRound Australia has moral & registered rights in its trademarks and the User shall not copy, alter, use or otherwise deal in the marks without the prior written consent of UgoRound Australia.
14.2 Proprietary Information. UgoRound may use software and other proprietary systems and Intellectual Property for which UgoRound Australia has appropriate authority to use, and the User agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally. The User warrants that it shall not infringe on any third-party rights through the use of UgoRound.
14.3 Solution. The User agrees and accepts that UgoRound is the Intellectual Property of UgoRound Australia and the User further warrants that by using UgoRound the User will not:
(a) Copy UgoRound or the services that it provides for the User’s own commercial purposes; and
(b) Directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in UgoRound or any documentation associated with it.
14.4 Content. All content (with the exception of User Content) remains the Intellectual Property of UgoRound Australia, including (without limitation) any source code, ideas, enhancements, feature requests, suggestions or other information provided by the User or any other party with respect to UgoRound.
15.1 The information and classes of information set out in the Particulars are Confidential Information for the purposes of this Agreement. In default, information relating to the business operations, personal information and other information that should be confidential is Confidential Information.
15.2 Each party acknowledges and agrees that:
(a) The Confidential Information is secret, confidential and valuable to the disclosing party (Discloser);
(b) It owes an obligation of confidence to the Discloser concerning the Confidential Information;
(c) It must not disclose the Confidential Information to a third party except as permitted in this Agreement;
(d) All Intellectual Property rights remain vested in the Discloser but disclosure of Confidential Information does not in any way transfer or assign any rights or interests in the Intellectual Property to the receiving party; and
(e) Any breach or threatened breach by the receiving party of an obligation under this Agreement may cause the Discloser immediate and irreparable harm for which damages alone may not be an adequate remedy. Consequently the Discloser has the right, in addition to other remedies available at law or in equity, to seek injunctive relief against the receiving party (and its agents, assigns, employees, officers and directors, personally) or to compel specific performance of this clause.
15.3 A party must notify the Discloser in writing, giving full details known to it immediately, when it becomes aware of:
(a) Any actual, suspected, likely or threatened breach by it of clause 15.1;
(b) Any actual, suspected, likely or threatened breach by any person of any obligation in relation to the Confidential Information; or
(c) Any actual, suspected, likely or threatened theft, loss, damage, or unauthorised access, use or disclosure of or to any Confidential Information.
15.4 The receiving party must promptly take all steps that the Discloser may reasonably require and must co-operate with any investigation, litigation or other action of the Discloser or of a related body corporate if there is:
(a) Any actual, suspected, likely or threatened breach of a term of this Agreement; or
(b) Any theft, loss, damage or unauthorised access, use or disclosure of or to any Confidential Information that is or was in its possession or control.
16. LIABILITY & INDEMNITY
16.1 The User agrees that it uses UgoRound at its own risk.
16.2 The User acknowledges that UgoRound Australia is not responsible for the conduct or activities of any user and that UgoRound Australia is not liable for such under any circumstances.
16.3 The User agrees to indemnify UgoRound Australia for any loss, damage, cost or expense that UgoRound Australia may suffer or incur as a result of or in connection with the User’s use of or conduct in connection with UgoRound, including any breach by the User of these Terms.
16.4 In no circumstances will UgoRound Australia be liable for any direct, incidental, consequential or indirect damages, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the User’s access to, or use of, or inability to use UgoRound or any content, or in any way relating to an experience itself (or the provision or non-provision of an experience), whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not UgoRound Australia knew or should have known of the possibility of such damage, to business interruption of any type, whether in tort, contract or otherwise.
16.5 Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted or modified. Apart from those that cannot be excluded, UgoRound Australia and UgoRound Australia’s related entities exclude all conditions and warranties that may be implied by law. To the extent permitted by law, UgoRound Australia’s liability for breach of any implied warranty or condition that cannot be excluded is restricted, at UgoRound Australia’s option to:
(a) The re-supply of services or payment of the cost of re-supply of services; or
(b) The replacement or repair of goods or payment of the cost of replacement or repair.
17.1 Where a party is in breach of this Agreement, the other party may issue a written notice (Breach Notice) requiring the party in breach that must set out:
(a) The nature of the breach;
(b) The provisions of the Agreement that are alleged to have been breached;
(c) A reasonable timeframe to remedy the breach in no less than 10 Business Days; and
(d) The action required to remedy the breach.
17.2 Where a party issues a compliant Breach Notice in accordance with clause 17.1, the receiving party shall be required to respond and/or remedy the breach as so set out in the Breach Notice. Failure to respond in writing setting out:
(a) The steps taken to remedy the breach; or
(b) Why the party believes it is not in breach as put forward in the Breach Notice,
(c) Shall not in itself confirm the alleged breach but shall be in itself a breach of this Agreement.
17.3 Failure to remedy a breach set out in a Breach Notice shall be a material breach of this Agreement (Material Breach).
18.1 Breach. Where a party is in Material Breach of this Agreement, the other party may terminate this Agreement by giving written notice of termination, which shall become effective 5 Business Days after the date of the notice.
18.2 Insolvency. Either party may terminate this Agreement immediately by notice, if either party:
(a) Stops or suspends or threatens to stop or suspend payment of all or a class of its debts;
(b) Is insolvent within the meaning of section 95A of the Corporations Act;
(c) Fails to comply with a statutory demand (within the meaning of section 459F(1) of the Corporations Act) unless:
(d) The debt to which the statutory demand relates is discharged within 15 Business Days of the date of the failure; or
(e) The party demonstrates to the satisfaction of the other party (acting reasonably) that it is able to pay all its debts as and when they become due and payable;
(f) Has an administrator appointed in respect of it;
(g) Has a controller within the meaning of section 9 of the Corporations Act or similar officer appointed to the whole or a substantial part of its assets or undertaking and that controller or similar officer is not removed within 15 Business Days of the appointment;
(h) Has an order made or a resolution passed for its winding up or dissolution or it enters into an arrangement, compromise or composition with or assignment for the benefit of its creditors or a class of them;
(i) Has any security enforced over, or a distress, execution or other similar process levied or served against, the whole or a substantial part of its assets or undertaking; or
(j) Is subject to any event, which, under the law of any relevant jurisdiction, has an analogous or equivalent effect to any of the events listed above.
18.3 Expiry or termination of this Agreement is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of this Agreement up to the date of expiry or termination.
18.4 The rights and obligations under the relevant provisions of clauses 7, 8, 9, 10, 11, 14, 15, 16, 17, 18, 19, 20, 21 and 21.6 survive termination of this Agreement.
19.1 All disputes shall be handled in accordance with UgoRound Australia’s dispute resolution policy. 19.2 Where UgoRound Australia does not have a relevant dispute resolution policy for a type of dispute, the following process shall apply:
(a) Negotiation. If there is a dispute between the parties relating to or arising out of this Agreement, then within 5 Business Days of a party notifying the other party of a dispute, senior representatives from each party must meet (or discuss directly via the telephone or internet) and use all reasonable endeavours acting in good faith to resolve the dispute by joint discussions;
(b) Mediation. If the dispute between the parties relating to or arising out of this Agreement is not resolved within five Business Days of notification of the dispute under Clause 19.1, the parties must agree to submit the dispute to mediation, administered by lawyers engaged in alternative dispute resolution;
(c) Arbitration. If the dispute between the parties relating to or arising out of this Agreement is not settled by mediation under Clause (b), either party may by written notice to the other refer the dispute to arbitration administered by the Institute of Arbitrators Australia. The arbitrator will be agreed between the parties from a panel suggested by the President of the Institute of Arbitrators Australia or failing Agreement, an arbitrator will be appointed by the President of the Institute of Arbitrators Australia; and
(d) Court proceedings. A party may not commence court proceedings in relation to a dispute relating to or arising out of this Agreement until it has exhausted the procedures in this clause (d) unless the party seeks appropriate injunctive or other interlocutory relief to preserve property or rights or to avoid losses that are not compensable in damages.
20. FORCE MAJEURE
20.1 If a party is prevented in whole or in part from carrying out its obligations under this Agreement as a result of Force Majeure, it will promptly notify the other party accordingly. The notice must:
(a) Specify the obligations and the extent to which it cannot perform those obligations;
(b) Fully describe the event of Force Majeure;
(c) Estimate the time during which the Force Majeure will continue; and
(d) Specify the measures proposed to be adopted to remedy or abate the Force Majeure.
20.2 Following a notice of Force Majeure in accordance with clause 20.1 and while the Force Majeure continues, the obligations which cannot be performed because of the Force Majeure will be suspended, other than obligations to pay money that is due and payable.
20.3 The party that is prevented from carrying out its obligations under this Agreement as a result of Force Majeure must remedy the Force Majeure to the extent reasonably practicable and resume performance of its obligations as soon as reasonably possible.
20.4 The party that is prevented from carrying out its obligations under this Agreement as a result of Force Majeure must take all action reasonably practicable to mitigate any loss suffered by the other party as a result of the party’s failure to carry out its obligations under this Agreement.
20.5 The term of this Agreement will not be extended by the period of Force Majeure.
21. ELECTRONIC COMMUNICATION, AMENDMENT AND ASSIGNMENT
21.1 The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.
21.2 The User can direct notices, enquiries, complaints and so forth to UgoRound Australia as set out in this Agreement. UgoRound Australia will notify the User of a change of details from time-to-time.
21.3 UgoRound Australia will send the User notices and other correspondence to the details that the User submits to UgoRound Australia, or that the User notifies UgoRound Australia of from time-to-time. It is the User’s responsibility to update its contact details as they change.
21.4 A consent, notice or communication under this Agreement is effective if it is sent as an electronic communication unless required to be physically delivered under law.
21.5 Notices must be sent to the parties’ most recent known contact details.
21.6 The User may not assign or otherwise create an interest in this Agreement.
21.7 UgoRound Australia may assign or otherwise create an interest in its rights under this Agreement by giving written notice to the User.
22.1 Special Conditions. The parties may agree to any Special Conditions to this Agreement in writing.
22.2 Prevalence. To the extent that the Particulars are inconsistent with the General Conditions, the terms of the Particulars will prevail. To the extent that the Special Conditions are inconsistent with the Particulars, the Special Conditions will prevail.
22.3 Disclaimer. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Agreement.
22.4 Relationship. The relationship of the parties to this Agreement does not form a joint venture or partnership.
22.5 Waiver. No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
22.6 Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to this Agreement and the transaction facilitated by it.
22.7 Governing Law. This Agreement is governed by the laws of the state set out in item L of the Particulars. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.
22.8 Severability. Any clause of this Agreement, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Agreement.