ArcSolar Platform Subscription Agreement

1.1 In this Agreement, unless the context requires otherwise, the following definitions apply:

• Account means the Customer's registered account and associated Workspace on the Platform.
• ACL means the Australian Consumer Law set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth).
• Authorised User means an individual the Customer permits to access the Platform under the Customer's Account, including employees, contractors, installers and agents.
• Customer Data means all data, content, records and materials the Customer or an Authorised User submits to, generates in, or transmits through the Platform, including End Customer Personal Information.
• End Customer means a person or entity to whom the Customer markets, quotes, sells, installs or services goods or services using the Platform.
• Fees means the subscription fees, usage-based charges, telecommunications charges, taxes and other amounts payable under clause 11.
• Intellectual Property Rights means all rights in copyright, patents, trade marks, designs, trade secrets, know-how, database rights and all other rights of an intellectual property nature, whether registered or unregistered, anywhere in the world.
• Personal Information has the meaning given in the Privacy Act 1988 (Cth).
• Platform means the ArcSolar software-as-a-service application, its application programming interfaces, documentation, integrations and any associated services made available by the Provider.
• Privacy Policy means the ArcSolar Privacy Policy published at /legal/privacy, as amended from time to time.
• Telemetry Records has the meaning given in clause 9.1.
• Third Party Service means a service supplied by a party other than the Provider that the Platform integrates with or relies on, including payment processing, telecommunications, mapping, imagery, email, hosting and artificial intelligence services.
• Workspace means the tenant boundary within the Platform allocated to the Customer, to which the Customer's records, Authorised Users and Telemetry Records are bound.

1.2 Headings are for convenience only and do not affect interpretation. The singular includes the plural and vice versa. A reference to a statute includes any amendment to or replacement of it. The words 'including', 'for example' and similar expressions are not words of limitation. No rule of construction applies to the disadvantage of a party because that party prepared this Agreement.

1.3 If there is any inconsistency between the documents forming this Agreement, the following order of precedence applies: (a) any written order form or subscription schedule signed by both parties; (b) this Agreement; (c) the Privacy Policy; (d) any other document incorporated by reference.

2.1 By ticking the acceptance box presented during sign-up and submitting the sign-up form, you accept this Agreement on behalf of the Customer and create a binding contract on these terms. Acceptance by that means has the same legal effect as a signature.

2.2 At the moment of acceptance we create and retain an acceptance record. That record includes the identity of the accepting user, the account email address, the identifier and version of each document accepted, a cryptographic hash of the exact text presented, the coordinated universal time of acceptance, the originating internet protocol address, and the browser user agent string.

2.3 The Customer agrees that the acceptance record described in clause 2.2 is admissible evidence of the formation and content of this Agreement, and that it may be produced to a payment service provider, card scheme, financial institution, dispute resolution body, regulator or court. The Customer will not assert that this Agreement is unenforceable merely because it was accepted electronically rather than signed on paper.

2.4 Each person who accepts this Agreement warrants that they are at least 18 years of age and are duly authorised to bind the Customer. If the Customer is later found not to have been bound, the individual who accepted this Agreement is personally liable for the obligations they purported to accept, to the extent permitted by law.

3.1 Subject to the Customer's continuing compliance with this Agreement and payment of all Fees, the Provider grants the Customer a non-exclusive, non-transferable, non-sublicensable, revocable licence to access and use the Platform during the Term for the Customer's internal business purposes.

3.2 The Platform is provided on a software-as-a-service basis. No copy of the software is sold or delivered to the Customer, and nothing in this Agreement transfers ownership of any part of the Platform.

3.3 The Provider may modify, enhance, reconfigure, relocate or discontinue any feature of the Platform. Where a change would materially and adversely reduce the core functionality the Customer is paying for, the Provider will give at least 30 days' notice, and the Customer may terminate under clause 22.4 without penalty if it does not accept the change.

3.4 The Provider does not warrant that the Platform will be available without interruption or error. Scheduled maintenance, emergency maintenance, Third Party Service outages, network faults and force majeure events may affect availability. Unless a written service level agreement has been signed by both parties, no service level, uptime commitment or service credit applies.

3.5 The Provider may access the Customer's Workspace where reasonably necessary to provide support, investigate a fault, investigate suspected breach of this Agreement, verify usage, meet a legal obligation, or protect the security or integrity of the Platform or another customer.

4.1 The Customer is responsible for all activity occurring under its Account and Workspace, whether or not authorised by the Customer, and whether or not the Customer knew of it.

4.2 The Customer must ensure that credentials are kept confidential, are not shared between individuals, and are revoked promptly when an Authorised User ceases to be entitled to access. Each Authorised User must have their own distinct credentials.

4.3 The Customer must ensure every Authorised User complies with this Agreement. An act or omission of an Authorised User is treated as an act or omission of the Customer.

4.4 The Customer must notify the Provider without delay on becoming aware of any unauthorised access, credential compromise, or suspected security incident affecting the Account.

4.5 The Provider may suspend any credential or Authorised User immediately where it reasonably suspects compromise, misuse or a threat to the Platform, and will notify the Customer as soon as reasonably practicable.

5.1 The Customer must not, and must ensure that no Authorised User does any of the following:

• use the Platform other than for the Customer's genuine, lawful business activity;
• resell, sublicense, rent, lease, time-share, or make the Platform available to any third party except as expressly permitted by this Agreement;
• copy, adapt, modify, translate, decompile, disassemble or reverse engineer any part of the Platform, or attempt to derive its source code, except to the extent that right cannot lawfully be excluded;
• scrape, crawl, bulk-extract, or systematically download data or content from the Platform other than through functionality the Provider expressly provides for that purpose;
• use the Platform to develop, train or improve any product or service that competes with the Platform;
• circumvent, disable or interfere with any usage limit, metering, rate limit, authentication, telemetry, audit or security feature;
• introduce any malicious code, or conduct any penetration test, vulnerability scan or load test without the Provider's prior written consent;
• use the Platform to send unsolicited commercial electronic messages contrary to the Spam Act 2003 (Cth), or to make telemarketing calls contrary to the Do Not Call Register Act 2006 (Cth);
• upload or transmit content that is unlawful, defamatory, infringing, misleading or deceptive;
• misrepresent an estimate, model output or generated document produced by the Platform as a guaranteed, certified or professionally verified result; or
• use the Platform in a way that damages, disables, overburdens or impairs it, or that interferes with another customer's use.

5.2 The Customer is solely responsible for its compliance with all laws applicable to its business, including the ACL, the Privacy Act 1988 (Cth), the Spam Act 2003 (Cth), electrical safety and licensing laws, clean energy regulator scheme rules, state and territory fair trading legislation, and the terms of any accreditation the Customer holds.

5.3 The Provider may investigate a suspected breach of this clause 5 and may suspend access under clause 22.2 while it does so. The Provider is not liable for any loss arising from a suspension properly imposed under this Agreement.

6.1 As between the parties, the Customer owns all right, title and interest in Customer Data. The Customer grants the Provider a non-exclusive, worldwide, royalty-free licence to host, store, copy, transmit, display, process and otherwise use Customer Data to the extent necessary to provide, secure, meter, support and improve the Platform and to perform this Agreement.

6.2 The Customer warrants that it has all rights, consents, notifications and authorisations necessary for the Provider to handle Customer Data as contemplated by this Agreement and the Privacy Policy, including every consent required to collect, use and disclose End Customer Personal Information, and every consent required to record, store or transmit a telephone call or electronic message.

6.3 The Customer is solely responsible for the accuracy, quality, completeness, legality, reliability and currency of Customer Data. The Provider does not verify Customer Data, does not audit it for truthfulness, and is under no obligation to detect or correct an error, omission, falsification or misrepresentation within it.

6.4 The Platform produces estimates, models, projections, indicative layouts, savings figures, pricing, documents, summaries and other outputs, some of which are generated by automated or artificial intelligence systems from imagery, third party data and Customer inputs. All such outputs are indicative only. They are not engineering, structural, electrical, financial, taxation, credit, regulatory or performance advice, and are not a guarantee of any result.

6.5 The Customer must independently verify every output before relying on it, before presenting it to an End Customer, and before it forms part of any quotation, proposal, contract or representation the Customer makes. The Customer is solely responsible for every representation it makes to an End Customer, whether or not that representation was derived from an output of the Platform.

6.6 The Provider gives no warranty as to the truth, accuracy or completeness of any data supplied by a third party and surfaced through the Platform, including mapping, imagery, solar irradiance, roof geometry, tariff, network, product, credit or identity data.

6.7 The Customer is responsible for maintaining its own records and for retaining its own copies of any Customer Data it is required by law to keep. The Provider's backup arrangements are for the Provider's operational continuity and are not a backup service for the Customer.

7.1 Each party must comply with the Privacy Act 1988 (Cth) and the Australian Privacy Principles to the extent they apply to it.

7.2 As between the parties, the Customer is the entity that determines the purposes for which End Customer Personal Information is collected and handled. The Provider handles that information on the Customer's behalf for the purpose of providing the Platform, and separately handles information about the Customer, its Authorised Users and their use of the Platform for the Provider's own purposes as described in the Privacy Policy.

7.3 The Customer must give each End Customer and each Authorised User any notice, and obtain any consent, required for the collection and handling described in the Privacy Policy, including the recording of communications and the collection of Telemetry Records.

7.4 Each party must notify the other without undue delay on becoming aware of an eligible data breach under Part IIIC of the Privacy Act 1988 (Cth) affecting information handled under this Agreement, and must cooperate reasonably in assessing and responding to it. The Customer is responsible for notifying its End Customers and the Office of the Australian Information Commissioner where the breach arises from the Customer's acts, omissions or systems.

7.5 The Privacy Policy forms part of this Agreement and is incorporated by reference. The Customer acknowledges it has read the Privacy Policy and, in particular, the description of telemetry and analytics in it and in clause 9 of this Agreement.

8.1 The Platform depends on and integrates with Third Party Services, including payment processing and payment authority services, telecommunications and messaging carriage services, mapping, imagery and solar analysis services, hosting and database services, electronic mail delivery, observability and analytics services, and artificial intelligence and machine learning services.

8.2 The Customer's use of a Third Party Service may be subject to that provider's own terms, and the Customer is responsible for complying with them. The Provider is not the supplier of a Third Party Service and does not control it.

8.3 To the maximum extent permitted by law, the Provider is not liable for any act, omission, error, outage, latency, data loss, price change, suspension, discontinuation or breach by a supplier of a Third Party Service, or for any consequence of one. The Provider does not warrant that any Third Party Service will remain available or on unchanged terms.

8.4 If a supplier of a Third Party Service changes its charges, terms or availability, the Provider may pass through the change, adjust the affected functionality, or cease to offer it, on reasonable notice to the Customer.

9.1 The Provider collects, generates and retains detailed operational, diagnostic, security, metering and behavioural records concerning the use of the Platform (Telemetry Records). The Customer expressly acknowledges and agrees to this collection as a condition of access to the Platform.

9.2 Telemetry Records may include, without limitation:

• the identity of the Workspace, the Account, the Authorised User and the session associated with each interaction;
• each discrete action taken in the Platform, identified by a registered semantic action identifier, together with the page or route on which it occurred, the category of the action, and whether it succeeded or failed;
• the type and identifier of the record or entity an action was performed on;
• timestamps, durations, latency, active-time measurements, retry counts, error codes and response status codes;
• correlation and request identifiers that link a client interaction to the server processing it;
• counts of records created, read, updated, deleted, selected, exported or imported;
• the feature used, the interaction method used to invoke it, and the workflow stage it occurred in;
• telecommunications usage records, including call direction, duration, message segment counts, number rentals and the resulting charges;
• consumption of metered third party services, including mapping, imagery, solar analysis and artificial intelligence services, and the cost attributable to that consumption;
• authentication events, permission checks, access denials, rate limiting events and other security events;
• network and device information, including internet protocol address, browser user agent, device class, operating system, viewport characteristics and approximate location derived from internet protocol address; and
• records of acceptance of this Agreement and of any other document presented for acceptance.

9.3 Every Telemetry Record is bound at the point of collection to the Workspace in which the action occurred, and is stored with that Workspace identifier as an inseparable attribute of the record. Records are attributed to the Customer's tenant boundary and are retrievable by Workspace, by Authorised User, by action, by entity and by time.

9.4 The Provider collects and uses Telemetry Records for the following purposes:

• calculating, verifying and substantiating Fees, including usage-based and telecommunications charges;
• producing evidence of access, usage and consumption for the purposes of clause 13, including in response to a chargeback, reversal, indemnity claim or payment dispute;
• detecting, investigating and preventing fraud, abuse, credential sharing, circumvention of usage limits and breach of clause 5;
• securing the Platform, investigating security incidents and maintaining audit trails;
• providing support, diagnosing faults and restoring service;
• capacity planning, performance measurement and reliability engineering;
• measuring feature adoption and improving, developing and testing the Platform and new products; and
• meeting the Provider's legal, regulatory, taxation and record-keeping obligations.

9.5 Telemetry Records are the Provider's records and the Provider's property. They are not Customer Data. The Provider may retain Telemetry Records after termination of this Agreement, and will retain records bearing on Fees, payments and disputes for at least seven years from the end of the financial year to which they relate.

9.6 The Customer agrees that Telemetry Records are the authoritative record of the Customer's access to and consumption of the Platform, and are conclusive evidence of that access and consumption in the absence of manifest error demonstrated by the Customer with contemporaneous documentary evidence. The Customer bears the onus of demonstrating any such error.

9.7 The Customer irrevocably consents to the Provider producing Telemetry Records, and any acceptance record created under clause 2.2, to a payment service provider, acquiring or issuing bank, card scheme, payment authority operator, debt collection agency, commercial credit reporting body, insurer, professional adviser, dispute resolution body, regulator or court, for the purpose of establishing, defending, substantiating or enforcing a claim, a debt, or a response to a chargeback or reversal.

9.8 Telemetry Records collected for the purposes described in clauses 9.4(a) to 9.4(h) are integral to the operation, billing, security and integrity of the Platform. The Customer cannot opt out of their collection while it continues to use the Platform. Where the Provider offers a setting controlling optional product analytics, the Customer may configure it in the Platform's settings; that setting does not affect billing, security or audit telemetry.

9.9 The Provider may create aggregated and de-identified statistics, benchmarks, models and insights derived from Telemetry Records and from Customer Data, and may use and disclose them for any purpose, including improving the Platform and publishing industry benchmarks, provided that such material does not identify the Customer, an Authorised User or an End Customer and cannot reasonably be used to re-identify them.

9.10 The Customer must inform its Authorised Users of the collection described in this clause 9 and must obtain any consent required for it. The Customer warrants that it has done so before granting an Authorised User access to the Platform.

10.1 The Provider and its licensors own all Intellectual Property Rights in the Platform, its software, interfaces, designs, documentation, templates, models, data structures, Telemetry Records and all improvements and derivative works of them. Nothing in this Agreement assigns or transfers any of those rights to the Customer.

10.2 If the Customer provides feedback, a suggestion, a feature request or an idea concerning the Platform, the Customer assigns to the Provider all Intellectual Property Rights in it, and the Provider may use it without restriction, attribution or payment.

10.3 The Customer must not remove, obscure or alter any proprietary notice, trade mark or branding appearing in or on the Platform, except where the Platform expressly provides a branding configuration for the Customer's own materials.

10.4 The Customer grants the Provider a non-exclusive, royalty-free licence to use the Customer's name and logo to identify the Customer as a customer of the Platform. The Customer may withdraw that licence at any time by notice to the Provider.

11.1 The Customer must pay all Fees for its selected plan, together with all usage-based charges incurred in its Workspace, in Australian dollars. Published amounts are inclusive of goods and services tax unless expressly stated otherwise.

11.2 Subscription Fees are payable in advance for each billing period. Usage-based charges, including telecommunications and metered third party service charges, are payable in arrears and are calculated from the Telemetry Records for the Customer's Workspace.

11.3 Fees are non-refundable and are not apportioned on early termination, except where a refund is required by law or is expressly provided for in this Agreement. No credit is given for a billing period in which the Customer did not use, or made limited use of, the Platform.

11.4 The Provider may vary Fees and rates on 30 days' notice to the Customer. If the Customer does not accept a variation, it may terminate under clause 22.4 before the variation takes effect. Continued use of the Platform after the variation takes effect is acceptance of it. Charges that are a pass-through of a Third Party Service charge may change without notice where the underlying charge changes, and the Provider will notify the Customer as soon as reasonably practicable.

11.5 The Customer is responsible for all taxes, duties and government charges arising in connection with this Agreement, other than tax on the Provider's income.

11.6 The Customer must raise any query about an invoice in writing within 14 days of the invoice date, specifying the amount queried and the reason. An amount not queried within that period is accepted as correct. A query does not suspend the obligation to pay any amount not in dispute.

11.7 The Customer must not set off, deduct or withhold any amount from a payment due to the Provider.

12.1 The Customer must maintain a valid payment method and a valid payment authority for the duration of the Term, and must keep the details current. The Customer authorises the Provider and its payment service providers to debit that payment method or authority for all Fees as they fall due.

12.2 The Customer authorises the Provider to re-present a failed debit, to debit in instalments, and to debit accrued usage-based charges together with subscription Fees.

12.3 If a payment is not received by its due date, interest accrues daily on the outstanding amount from the due date until payment in full at the rate of 2% per annum above the Reserve Bank of Australia cash rate target, compounded monthly.

12.4 The Customer must reimburse the Provider for all costs and expenses reasonably incurred in recovering an overdue amount, including debt collection agency fees, dishonour and failed payment fees charged to the Provider, and legal costs assessed on a solicitor and own client basis.

12.5 The Provider may apply any payment received to any outstanding amount as it sees fit, and may set off any amount the Provider owes the Customer against any amount the Customer owes the Provider.

13.1 The Customer must raise any dispute about a charge directly with the Provider under clause 11.6 and must allow the Provider a reasonable opportunity of at least 14 days to investigate and respond before initiating a chargeback, reversal, indemnity claim, direct debit dispute or similar process with a financial institution, card scheme or payment authority operator.

13.2 Initiating such a process without first complying with clause 13.1 is a material breach of this Agreement. The Customer acknowledges that the Provider supplies services which are consumed immediately and irreversibly on use, including telecommunications carriage and metered third party services for which the Provider is separately and unavoidably charged.

13.3 On a chargeback, reversal or disputed debit being initiated in breach of clause 13.1, all of the following apply immediately and without further notice:

• the Provider may suspend the Customer's Account, Workspace and all Authorised User access under clause 22.2;
• every amount owing by the Customer under this Agreement, whether or not then due, becomes immediately due and payable;
• the Provider may recover from the Customer the amount charged back, together with any fee, fine, assessment or penalty imposed on the Provider by a financial institution, card scheme or payment authority operator in connection with the dispute;
• the Provider may charge an administration fee reflecting the Provider's reasonable cost of investigating and responding to the dispute, being a genuine pre-estimate of that cost and not a penalty;
• interest accrues under clause 12.3 on all amounts outstanding; and
• the Provider may recover its costs of enforcement under clause 12.4.

13.4 In responding to a chargeback, reversal or disputed debit, the Provider may produce the Telemetry Records for the Customer's Workspace, the acceptance record created under clause 2.2, invoices, communications and any other relevant record. The Customer agrees that those records evidence the Customer's acceptance of this Agreement and the Customer's actual access to and consumption of the Platform, and the Customer must not assert to any third party that the services were not received, not authorised or not consumed where the Telemetry Records show otherwise.

13.5 The Customer indemnifies the Provider against all losses, costs, fees, fines, assessments and expenses the Provider incurs as a result of a chargeback, reversal or disputed debit initiated in breach of clause 13.1, calculated by reference to the Provider's actual loss.

13.6 Where an amount remains outstanding after a chargeback, the Provider may refer the debt to a debt collection agency or a commercial credit reporting body, and may disclose to them the information reasonably necessary to recover the debt, including the records described in clause 13.4.

13.7 Nothing in this clause 13 limits or affects any right the Customer has that cannot lawfully be excluded, including a right to a remedy under the ACL or a right to dispute an unauthorised transaction that the Customer did not in fact authorise.

14.1 Where the Platform facilitates the collection of a payment from an End Customer, that payment is processed by a Third Party Service under the Customer's own arrangements with that provider. The Provider is not a party to the underlying transaction between the Customer and the End Customer, does not hold the funds, and is not a payment service provider to the Customer.

14.2 The Customer is solely responsible for the goods and services it supplies to an End Customer, for the contract it forms with the End Customer, for any deposit, refund, cooling-off right, warranty claim or chargeback arising from it, and for compliance with the ACL in respect of it.

14.3 The Customer indemnifies the Provider against any claim made by an End Customer arising from or in connection with the goods or services the Customer supplies, the representations the Customer makes, or the Customer's handling of an End Customer's money or Personal Information.

15.1 Each party must keep confidential all information of the other party that is by its nature confidential or that is identified as confidential, must use it only for the purposes of this Agreement, and must not disclose it except to its personnel and advisers who need to know it and who are bound by equivalent obligations.

15.2 The obligation in clause 15.1 does not apply to information that is or becomes public other than through a breach of this Agreement, that was lawfully known to the recipient before disclosure, that is independently developed without reference to the disclosing party's information, or that is required to be disclosed by law, a regulator or a court.

15.3 This clause survives termination of this Agreement.

16.1 The Provider will implement and maintain security measures it considers reasonable and appropriate to protect Customer Data against unauthorised access, loss, misuse and alteration, having regard to the nature of the data, the state of the art and the cost of implementation.

16.2 The Customer acknowledges that no method of transmission or storage is completely secure, and that the Provider does not warrant that the Platform or Customer Data will be free from unauthorised access. Security is a shared responsibility and depends substantially on the Customer's own controls, including credential hygiene, device security and the conduct of its Authorised Users.

16.3 To the maximum extent permitted by law, the Provider is not liable for any unauthorised access arising from the Customer's or an Authorised User's act or omission, including credential sharing, credential compromise, misconfiguration by the Customer, or the Customer's failure to revoke access.

17.1 Each party warrants that it has the power and authority to enter into and perform this Agreement.

17.2 Subject to clause 18, and to the maximum extent permitted by law, the Platform is provided on an 'as is' and 'as available' basis, and the Provider excludes all warranties, conditions, guarantees and representations not expressly set out in this Agreement, whether express, implied, statutory or otherwise, including any implied warranty of merchantability, fitness for a particular purpose, accuracy, or non-infringement.

17.3 Without limiting clause 17.2, and subject to clause 18, the Provider does not warrant that:

• the Platform will meet the Customer's requirements or achieve any particular commercial result;
• access will be uninterrupted, timely, secure or error free;
• any estimate, model, projection, layout, savings figure, price or generated document will be accurate, complete or achievable;
• any data obtained from a third party and surfaced in the Platform is accurate or current;
• any defect will be corrected; or
• the Platform will be compatible with any particular hardware, software or Third Party Service.

18.1 Nothing in this Agreement excludes, restricts or modifies any guarantee, warranty, right or remedy conferred by the ACL or any other law that cannot lawfully be excluded, restricted or modified. If a term of this Agreement would do so, that term applies only to the extent it lawfully may.

18.2 Where the ACL applies and the Provider is entitled to limit its liability for breach of a consumer guarantee in respect of services that are not of a kind ordinarily acquired for personal, domestic or household use or consumption, the Provider's liability is limited, at the Provider's option, to supplying the services again or paying the cost of having the services supplied again.

18.3 The limitations and exclusions in clauses 17, 19 and 20 apply subject to this clause 18.

19.1 Subject to clause 18, and to the maximum extent permitted by law, neither party is liable to the other for any indirect, consequential, special, incidental, punitive or exemplary loss, or for any loss of profit, loss of revenue, loss of anticipated savings, loss of business, loss of opportunity, loss of goodwill or reputation, loss or corruption of data, or business interruption, however arising and whether in contract, tort (including negligence), statute or otherwise, even if the party was advised of the possibility of such loss.

19.2 Subject to clause 18, and to the maximum extent permitted by law, the Provider's aggregate liability to the Customer for all claims arising out of or in connection with this Agreement in any 12 month period is limited to the total Fees actually paid by the Customer to the Provider under this Agreement in the 12 months immediately preceding the first event giving rise to liability.

19.3 Subject to clause 18, and to the maximum extent permitted by law, the Provider has no liability whatsoever for any loss arising from or in connection with:

• the accuracy, truth, completeness, legality or currency of Customer Data, or any decision made in reliance on it;
• any estimate, model, projection, layout, savings figure, quotation, price, document or other output of the Platform, or any decision made or representation given in reliance on one;
• any representation, quotation, contract, warranty or promise the Customer makes to an End Customer;
• any dispute between the Customer and an End Customer, an installer, a financier, a supplier, a network operator or a regulator;
• any act, omission, outage, error, price change or discontinuation of a Third Party Service;
• any unauthorised access arising from the Customer's or an Authorised User's act or omission;
• any suspension or termination properly effected under this Agreement; or
• the Customer's breach of this Agreement or of any law.

19.4 The limitations in clauses 19.1 and 19.2 do not apply to the Customer's obligation to pay Fees and other amounts payable under this Agreement, or to the Customer's liability under clauses 13.5, 14.3 and 20.

19.5 Each party must take reasonable steps to mitigate its loss. A party's liability is reduced to the extent the other party's act or omission caused or contributed to the loss.

19.6 The Customer must bring any claim arising out of or in connection with this Agreement within 12 months after the Customer first became aware, or ought reasonably to have become aware, of the circumstances giving rise to it.

20.1 The Customer indemnifies the Provider against all loss, damage, liability, cost and expense (including legal costs assessed on a solicitor and own client basis) actually suffered or incurred by the Provider arising out of or in connection with:

• the Customer's breach of clause 5 (acceptable use), clause 6.2 (rights and consents), clause 7.3 (notices and consents) or clause 13.1 (payment disputes);
• any claim by an End Customer, an Authorised User or a third party concerning Customer Data or the goods or services the Customer supplies;
• any claim that Customer Data infringes the Intellectual Property Rights of a third party;
• the Customer's breach of a law in connection with its use of the Platform; or
• any fee, fine, assessment or penalty imposed on the Provider by a financial institution, card scheme or payment authority operator as a result of the Customer's conduct.

20.2 The indemnity in clause 20.1 is limited to loss actually suffered by the Provider, and is reduced to the extent the Provider's own act or omission caused or contributed to the loss.

20.3 The Provider must notify the Customer of a claim to which the indemnity applies, must not admit liability without the Customer's consent, and must allow the Customer a reasonable opportunity to participate in the defence of the claim at the Customer's cost.

21.1 This Agreement commences on acceptance and continues until terminated in accordance with clause 22 (Term).

21.2 The subscription renews automatically at the end of each billing period unless cancelled in accordance with clause 22.4.

22.1 The Provider may terminate this Agreement immediately by notice if the Customer commits a material breach that is not capable of remedy, or that is capable of remedy and is not remedied within 14 days of notice requiring it to be remedied.

22.2 The Provider may suspend the Customer's access to the Platform immediately, in whole or in part, where: an amount is overdue; a chargeback, reversal or disputed debit has been initiated; the Provider reasonably suspects a breach of clause 5; the Provider reasonably suspects fraud, unauthorised access or a threat to the security or integrity of the Platform; or suspension is required by law. The Provider will notify the Customer of a suspension and the reason for it as soon as reasonably practicable, and will restore access once the cause has been resolved.

22.3 Suspension does not suspend the Customer's obligation to pay Fees for the period of suspension where the suspension arises from the Customer's breach or non-payment.

22.4 The Customer may terminate this Agreement at any time by cancelling its subscription in the Platform or by written notice, with effect from the end of the then current billing period. Fees already paid are not refunded.

22.5 Either party may terminate immediately by notice if the other party becomes insolvent, has a controller or administrator appointed, resolves to wind up, enters into an arrangement with its creditors, or suffers an analogous event.

22.6 On termination: all licences granted to the Customer cease; the Customer must cease using the Platform; and all amounts owing by the Customer become immediately due and payable.

22.7 The Customer may export Customer Data using the export functionality available in the Platform at any time before termination takes effect, and for 30 days afterwards where the Customer requests access in writing and no amount is outstanding. After that period the Provider may delete Customer Data, subject to clause 22.8.

22.8 The Provider may retain Customer Data and Telemetry Records after termination where required by law, for the period necessary to comply with a record-keeping obligation, or to establish, exercise or defend a legal claim. Clause 9.5 continues to apply to Telemetry Records.

22.9 Clauses 1, 6.1, 6.3, 9, 10, 13, 14.3, 15, 17, 18, 19, 20, 22.6 to 22.9, 24 and 25 survive termination.

23.1 The Provider may amend this Agreement by giving the Customer at least 30 days' notice by email to the Account's nominated address or by prominent notice in the Platform. The notice will identify the changes and the date they take effect.

23.2 If an amendment would materially and adversely affect the Customer, the Customer may terminate under clause 22.4 with effect before the amendment takes effect, without liability for any further Fee beyond the current billing period. Continued use of the Platform after the amendment takes effect is acceptance of the amended Agreement.

23.3 The Provider may amend this Agreement without notice where the amendment is required by law or is necessary to address an immediate security or legal risk, and will notify the Customer as soon as reasonably practicable afterwards.

23.4 The Provider records the version of this Agreement in force at each point in time, and the version accepted by the Customer under clause 2.2.

24.1 A party must not commence proceedings about a dispute arising out of this Agreement, other than proceedings for urgent interlocutory relief or for the recovery of a debt, unless it has first complied with this clause 24.

24.2 The party raising the dispute must give the other party written notice setting out the nature of the dispute and the outcome sought. The parties' senior representatives must then meet, in person or by electronic means, within 14 days of the notice and negotiate in good faith to resolve it.

24.3 If the dispute is not resolved within 30 days of the notice, either party may commence proceedings.

24.4 Nothing in this clause prevents the Provider from suspending access under clause 22.2, from exercising a right under clause 13, or from recovering a debt.

25.1 This Agreement is governed by the laws of Victoria, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of Victoria, Australia and the courts competent to hear appeals from them.

25.2 This Agreement, together with the Privacy Policy and any signed order form, is the entire agreement between the parties about its subject matter and supersedes all prior negotiations, understandings and representations. Each party acknowledges it has not relied on any representation not expressly set out in this Agreement.

25.3 The Customer must not assign or novate this Agreement without the Provider's prior written consent, which must not be unreasonably withheld. The Provider may assign or novate this Agreement to a related entity, to a company incorporated by the Provider to carry on the business, or in connection with a sale of the business, on notice to the Customer.

25.4 If a provision of this Agreement is void, voidable, unenforceable or illegal, it is severed to the extent necessary and the remaining provisions continue in full force.

25.5 A failure or delay in exercising a right is not a waiver of it, and a single or partial exercise does not preclude a further exercise. A waiver is effective only if given in writing.

25.6 A notice under this Agreement must be in writing. A notice to the Provider must be sent to hello@argonix.com.au or delivered to 2608/344 City Road, Southbank VIC 3006, Australia. A notice to the Customer may be sent to the email address nominated on the Account or given by prominent notice in the Platform. A notice sent by email is taken to be received on the day it is sent unless the sender receives a delivery failure notification.

25.7 Neither party is liable for a failure or delay in performing an obligation, other than an obligation to pay money, to the extent it is caused by an event beyond its reasonable control, including natural disaster, fire, flood, pandemic, industrial action, war, terrorism, civil unrest, government action, telecommunications or power failure, denial of service attack, or the failure of a Third Party Service.

25.8 The parties are independent contractors. Nothing in this Agreement creates a partnership, joint venture, employment, franchise or agency relationship between them.

25.9 This Agreement does not confer a benefit on any person who is not a party to it.

25.10 This Agreement may be executed or accepted electronically, and an electronic acceptance recorded under clause 2.2 has the same effect as a signed original.