SiteHive Terms of Services

1 DEFINITIONS AND INTERPRETATIONS

1.1 (Definitions): In these Conditions, unless the context otherwise requires:

Agreement means the agreement between SiteHive and the Customer for the supply of Goods and / or Services comprising of:
(a) these general terms and conditions as amended from time to time in accordance with clause 15.1 (Conditions);
(b) the Schedule of Particulars; and
(c) any Specifications.

Analytical Data has the meaning given in clause 10.3(a)(i).

API means the application programming interface for the hosted services as defined by SiteHive and made available by SiteHive to the Customer.
Background IP means any Intellectual Property Rights of a party existing prior to the Commencement Date and all Intellectual Property Rights that are created independent of the Agreement.

Commencement Date has the meaning set out in clause 3.2.

Conditions has the meaning set out in the definition of ‘Agreement’ in this clause 1.1.

Confidential Information in relation to any person means any and all confidential and / or proprietary knowledge, data or information which is in the knowledge, possession or control of that person (or any employee or agent of that person), including:

(a) these Conditions;
(b) the Agreement;
(c) all and every part of the information regarding that party’s business affairs obtained or disclosed during the course of negotiation and implementation of the Agreement;
(d) Intellectual Property Rights, trade secrets, inventions, mask works, ideas, processes, formulas, source and object codes, data, programs, other works of authorship,
know-how, improvements (including without limitation improvements in process), discoveries, developments, drawings, designs and techniques; and
(e) information regarding plans for research, development, new products, marketing and selling, business plans, budgets and unpublished financial statements, licences, prices and costs, suppliers and SiteHive’s other business information.

Corporations Act means the Corporations Act 2001 (Cth).

Customer means the recipient of the Goods and / or Services from time to time as set out in the Schedule of Particulars.

Customer Access Facilities means facilities used for the purpose of receiving the Services, including any laptop, computer or mobile device.

Customer Data means all data, content, materials, methods of working, documents and information:

(a) captured by a Hexanode Device; or
(b) owned, held, used or created by or on the Customer’s behalf that is stored using, inputted otherwise transmitted to the Customer for the provision of the Goods and / or Services.

Deliverable all documents, products and materials developed by SiteHive and its contractors and employees as part of or in relation to the Services in any form or media, including drawings, maps, plans, diagrams, designs, pictures, computer programs, data, specifications and reports (including drafts).

Delivery Dates mean the dates given in the Schedule of Particulars.

End Date means the end date set out in the Schedule of Particulars.

End User means a user nominated by the Customer to use the Services in accordance with the Agreement.

Force Majeure Event means any catastrophic event, and includes fire, flood, earthquake, hurricane or other natural disaster, war, terrorism, blockade or embargo, act of civil or military authority, outbreak of disease, public health emergency, epidemics, pandemics or interruption or failure of utility services including electric power, air, telecommunications or water.

Foreground IP has the meaning given to that term in clause 10.2.

Goods means the goods (or any part of them) set out the Schedule of Particulars.

Goods Specification means any specification for the Goods, including any related plans and drawings, that is agreed in writing by the parties as set out in the Schedule of Particulars.

GST means the goods and services tax imposed under the A New Tax System (Goods & Services Tax) Act 1999 (or a successor act).

Hexanode Devices means the SiteHive Hexanode family of devices produced by SiteHive.

Intellectual Property Rights or Intellectual Property means all intellectual property rights and interests throughout the world whether registered or unregistered, including trade marks, designs, patents, inventions, copyrights and analogous rights, trade secrets, know how processes, concepts, Confidential Information and all other intellectual property.

Objectionable includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way.

Order means an order that a Customer places with SiteHive for the supply of Goods and / or Services.

Personal Information has the meaning given to it in section 6 of the Privacy Act.

Price means the price payable for the supply of the respective Goods and /or performance of the Services determined by clauses 7.1 and 7.2, plus all properly incurred expenses.

Privacy Act means the Privacy Act 1988 (Cth) and its amendments from time to time.

Rental End Date means the rental end date for the Hexanode Devices set out in the Schedule of Particulars.

Schedule of Particulars means the particulars to these Conditions as set out in Schedule 1.

Services means the SiteHive Enviro Software services, including any Deliverables, to be provided by SiteHive set out in the Schedule of Particulars and / or in the Service Specification.

Service Specification means the description or specification for Services that is agreed in writing by the parties as set out in the Schedule of Particulars.

Site mean the location or address where the Goods are to be delivered and / or the Services are to be performed, as set out in the Schedule of Particulars or as otherwise agreed in writing between the parties.

SiteHive Enviro Software means SiteHive’s software referred to as SiteHive Enviro software and/or SiteHive Enviro Pro software (as applicable) provided in the form of the Services.

Specifications means the Goods Specification and Service Specification (as the context requires).

Supported Web Browser means a web browser that supports access to the Services, as determined by SiteHive at its discretion from time to time.

Term means the term of the Agreement as determined pursuant to clause 13.

Third Party Applications means applications, software, platforms and services provided or operated by third parties, including features, aspects and information made available or provided by such third parties.

Underlying Systems means the SiteHive Enviro Software, IT solutions, systems, networks (including software and hardware), User Interface and API used to provide the Services, including any third party solutions, systems and networks.

User Interface means the user interface by which the Customer uses the Services as varied by SiteHive from time to time.

1.2 (Interpretation): In these Conditions unless the contrary intention appears:

(a) Headings are for convenience only and do not form part of these Conditions or affect its interpretation.
(b) A reference to any legislation includes regulations and other instruments under it and any variation or replacement of any of them.
(c) The singular includes the plural and vice versa, and words importing any gender include the other genders.
(d) References to any instrument are to that instrument as it may from time to time to be amended to extended in accordance with its terms.
(e) A reference to a “person” includes an individual, a firm, a body corporate, a partnership, a joint venture, an unincorporated body or association or any authority.
(f) References to dollars or $ is a reference to Australian dollars.

1.3 (Drafting responsibility): No provision of these Conditions be construed against a party
because that party (or that party’s adviser) was responsible for drafting it.

2 NATURE OF THESE CONDITIONS

2.1 (Conflict): Subject to relevant law, to the extent of any conflict or inconsistency between these Conditions, the Schedule of Particulars, or any Specifications, the conflict or inconsistency must be resolved by giving precedence in the following order:

(a) the Schedule of Particulars;
(b) these Conditions;
(c) any Specifications; and
(d) any other terms or conditions agreed to by the parties in writing.

3 THE AGREEMENT

3.1 (Provision of Goods and / or Services): Goods and / or Services may be provided by SiteHive where:

(a) a Customer places an Order with SiteHive which SiteHive then accepts. Any Order placed with SiteHive constitutes an irrevocable offer by the Customer to purchase Goods and / or Services from SiteHive in accordance with this Agreement. SiteHive may accept or reject this offer at SiteHive’s discretion; or
(b) SiteHive provides a quote to a Customer in respect of the provision of Goods and / or Services and the Customer accepts SiteHive’s quote within 30 days of the date of the quote.

These Conditions will apply to the provision of all Goods and / or Services by SiteHive to the Customer.

3.2 (Commencement Date): The date on which this Agreement shall come into existence and shall be binding on the parties is the earlier of (Commencement Date):

(a) both parties executing this Agreement;
(b) SiteHive issuing written acceptance of the Customer’s Order;
(c) a Customer accepting a quote provided by SiteHive within the timeframe specified in clause 3.1(b).
(d) any act by SiteHive that is consistent with fulfilling an Order, Including the supply of any Goods and / or Services; and
(e) the Start Date or Delivery Date set out in the Schedule of Particulars.

3.3 (Excluded terms): These Conditions apply to the Agreement to the exclusion of any other terms that the Customer seeks to impose or incorporate (including any terms or conditions contained in any correspondence, or Order from the Customer), or which are implied by trade, custom, practice or course of dealing. Any terms or conditions attached to any Order or correspondence issued by the Customer in respect of the Goods and Services (other than these Conditions) will not form part of the Agreement and are unenforceable by either party unless such terms or conditions are expressly accepted by SiteHive and the Customer in writing.

3.4 (Goods and Services): These Conditions apply to the supply of both Goods and Services except where the application to one or the other is specified.

3.5 (Non-exclusive): SiteHive’s supply of the Goods and / or Services is non-exclusive and nothing in the Agreement prevents SiteHive from supplying the Goods and / or Services or any Deliverables to any other person in any other location.

4 SUPPLY OF GOODS

4.1 (Supply of Goods): SiteHive will supply the Goods in accordance with the Agreement.

4.2 (Delivery): Where the Goods are to be delivered to the Customer, the Customer agrees that SiteHive will not be liable for any delay in delivery of the Goods.

4.3 (Title and Risk): Subject to clause 4.4, title and risk in the Goods passes to the Customer from SiteHive upon the Goods being delivered to the Site or in the case of Goods which are collected by the Customer from SiteHive’s premises, once the Goods are in the Customer’s possession.

4.4 (Hexanode Devices): Notwithstanding anything in these Conditions (unless otherwise agreed in writing between the parties), the Customer:

(a) acknowledges it will return the Hexanode Devices to SiteHive within 14 days of the Rental End Date or at the end of Term of the Agreement (whichever is earlier), and SiteHive may charge additional fees where there is a failure by the Customer to return the Hexanode Devices in the specified timeframe;
(b) acknowledges that to the extent any Hexanode Devices form part of the Goods supplied to the Customer, the Hexanode Devices are only provided to the Customer on a rental basis and that title to the Hexanode Devices remains exclusively with SiteHive at all times; and
(c) warrants that while the Hexanode Devices are on the Site or in the Customer’s possession, the Customer:
(i) bears all risk in respect of the Hexanode Devices and
(ii) will indemnify SiteHive if a Hexanode Device is lost and for any damage caused to the Hexanode Devices in connection with the Customer’s misuse of the Hexanode Devices (including any failure to comply with any directions provided by SiteHive in respect of the use of the Hexanode Devices) or the Customer’s recklessness, gross negligence or wilful misconduct.

4.5 (Damage to Hexanode Devices): Within seven days of a Customer becoming reasonably aware of any damage to a Hexanode Device, it must notify SiteHive in writing of the damage to the relevant Hexanode Device and include particulars of the damage and details as to what caused the damage.

4.6 (Use and maintenance of Hexanode Devices): The Customer:

(a) must ensure the Hexanode Devices are used in compliance with all laws, used only in the Customer’s general business operations and used only for the purposes which they were designed;
(b) must ensure the Hexanode Device remains at all times in good working order and condition;
(c) must not sell, dispose of, encumber or create a security interest in, or agree or attempt to any of these things without the prior written consent of SiteHive which may be given or withheld in the absolute discretion of SiteHive. If the Customer breaches this clause, the Customer agrees SiteHive has not authorised that dealing or agreed that dealing would extinguish SiteHive’s interest in the Goods;
(d) has no authority to act on behalf of SiteHive or pledge the credit of SiteHive or create any interest or right in, or over, the Hexanode Devices (including any lien).

5 SUPPLY OF SERVICES

5.1 (Supply of Services): SiteHive will supply the Services to the Customer in accordance with the terms of the Agreement.

5.2 (Customer Licence): Subject to clause 5.3, SiteHive grants to the Customer:

(a) for the duration of the Term, a worldwide, revocable, non-exclusive licence to use the Services by means of the User Interface; and
(b) after the Term, a worldwide, revocable licence to access the User Interface solely to view and/or retrieve any Customer Data that SiteHive may have retained a copy of in accordance with clause 9.3, solely for the business purposes of the Customer in accordance with the Agreement.

5.3 (Licence terms): The licence granted by SiteHive to the Customer under clause 5.2 is subject to the User Interface only being used:

(a) through a Supported Web Browser; and
(b) by anyone to whom the Customer grants or provides access to.

5.4 (Availability):

(a) The Customer acknowledges that SiteHive makes no warranty or representation on the availability of the Services and that the Services:
(i) may be unavailable at certain times to permit maintenance or other development activity; and
(ii) are reliant on Third Party Applications and a cloud service provider that SiteHive has no control over.
(b) In the event that a Third Party Application or the cloud service provider is not available, and Services, or a component of the Services, are ceased, SiteHive will use reasonable efforts to re-establish connectivity and restore the Services in a timely manner, either incrementally or in full where reasonably possible. If Services cannot be re-established or otherwise provided to the Customer, SiteHive may cease to supply the Services.

5.5 (Use of Services): The Customer, inclusive of its End Users, must:

(a) use the Services exclusively for its own internal business purposes;
(b) use the Services in accordance with all applicable laws and the Agreement; and
(c) not resell the Services or otherwise commercially exploit the Services in any way whatsoever other than in the course of the Customer’s ordinary business affairs, unless otherwise agreed with SiteHive in writing.

5.6 (Access conditions):

(a) When accessing the Services, the Customer, inclusive of its End Users, must not:
(i) attempt to undermine the security or integrity of the Underlying Systems;
(ii) use, or misuse, the Service in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user of the Services;
(iii) attempt to reverse engineer the SiteHive Enviro Software;
(iv) use the Service in a manner, or transmit, input or store any data, that breaches any third party right (including Intellectual Property Rights and privacy rights) or is Objectionable, incorrect or misleading; and
(v) use the Services in any way which may: (A) involve fraudulent activity; or (B) involves the sale or promotion of any illegal business activities or prohibited products or services.
(b) The Customer must be solely responsible for providing its own Customer Access Facilities in connection with its use of the Services and / or the SiteHive Enviro Software. The Customer warrants that all Customer Access Facilities:
(i) meet the security standards that is reasonably appropriate for use with the Services from time to time; and
(ii) will remain free from any circumstances (including viruses) which may adversely affect SiteHive, the SiteHive Enviro Software, the Underlying Systems and any other technology or component existing in connection with the Services.
(c) The Customer acknowledges that it will take all reasonable steps to ensure the
Customer and its End Users comply with clauses 5.6(a) and 5.6(b).

5.7 (End User Compliance): The Customer must procure each End User’s compliance with the Agreement and any other reasonable condition as notified by SiteHive to the Customer.

6 REMEDIES

6.1 (Remedies): Subject to law, if SiteHive fails to supply the Goods and / or Services in accordance with the Agreement and the Specification (where applicable), SiteHive may choose to undertake the following:

(a) in relation to Goods which do not comply with the Specifications (as applicable), to resupply Goods that do comply with the Specifications; and
(b) in relation to Services which do not comply with the Specifications (as applicable), to supply the Services again.

6.2 (Repairs inclusive): These Conditions shall extend to any substituted or remedial Services and / or repaired or replacement Goods supplied by SiteHive.

7 PRICE

7.1 (Price for Goods): The Price for the Goods is:

(a) the Price set out in the Schedule of Particulars; and
(b) inclusive of the costs of packaging, insurance and carriage of the Goods.

7.2 (Price for Services): The Price for the performance of the Services is:

(a) the Price set out in the Schedule of Particulars; and
(b) the full and exclusive remuneration of SiteHive in respect of the performance of the Services.

7.3 (Invoicing): Unless otherwise agreed to between the parties within the Schedule of Particulars:

(a) in respect of the Goods, SiteHive may invoice the Customer on or at any time after completion of delivery or the Goods being in the Customer’s possession; and
(b) in respect of Services, SiteHive may invoice the Customer immediately after any component of the Services have been performed.

7.4 (Payment): In consideration of the supply of Goods and / or Services by SiteHive, the Customer will, unless otherwise agreed to between the parties within the Schedule of Particulars, pay the invoiced amounts within 30 days of SiteHive issuing an invoice to a bank account nominated in writing by SiteHive.

7.5 (Invoice Disputes): Where, in accordance with clause 7.3, the Customer is issued with an invoice for payment of any part of the Price, if the Customer disputes the whole or any portion of an invoice issued by SiteHive, the Customer must pay the portion of the amount stated in the invoice which is not in dispute by the due date, and must notify SiteHive in writing (within 7 days of receipt of the invoice) of the reasons for disputing the invoice. If it is resolved that some or all of the amount in dispute ought properly to have been paid at the time it was first invoiced, then the Customer must pay the amount finally resolved together with interest on that amount in accordance with clause 7.4 and 7.6.

7.6 (Interest): If the Customer fails to make full payment of an invoice by the due date for payment specified on that invoice, interest must accrue on the unpaid amount, from the due date of payment, at the Interest Rate, compounding daily on the basis of a 365 day year.

8 GOODS AND SERVICES TAX

8.1 (GST): Unless otherwise expressly agreed to in writing between the Customer and SiteHive, all amounts payable by the Customer under the Agreement are exclusive of any GST. Where any Taxable Supply is made under the Agreement by SiteHive to the Customer, the Customer must, on receipt of a valid GST invoice from SiteHive, pay to SiteHive such additional amounts in respect of GST as are chargeable on the supply of the Goods and / or Services at the same time as payment is due for the supply of the Goods and / or Services.

8.2 (Reimbursement): If one party reimburses another party for an amount incurred by the other party, that amount does not include any amount in respect of GST for which the other party is entitled to claim an Input Tax Credit.

8.3 (Undefined terms): Unless otherwise defined in these Conditions, capitalised terms in this clause 8, have the same meaning as those same words in the GST Law.

9 CUSTOMER DATA

9.1 (Access to Customer Data):

(a) The parties acknowledges that the parties assign all rights in the Customer Data to the relevant project entity (where applicable) subject to the parties acknowledging that:
(i) SiteHive may require access to the Customer Data to exercise its rights and perform its obligations under the Agreement; and
(ii) to the extent necessary, SiteHive may authorise a member or members of its personnel to access the Customer Data for any purpose in relation to the Services.
(b) The Customer must arrange all necessary consents and approvals required for SiteHive to access the Customer Data as described in clause 9.1(a).

9.2 (Personal Information): To the extent a Customer is subject to the Privacy Act, the Customer must obtain all necessary consents from the relevant individual to enable the Customer and SiteHive to collect, use, hold and process Personal Information in accordance with the Privacy Act and any other applicable privacy Laws of any jurisdiction, and the Agreement.

9.3 (Backups of data): While SiteHive will use reasonable endeavours to maintain back-ups via its third-party service providers, the Customer agrees to maintain a separate back-up copy of all Customer Data uploaded by it onto the Services. Where requested by a Customer to do so, within 60 months of SiteHive ceasing to provide Goods and / or Services, SiteHive may assist with procuring copies of Customer Data which it may have on record. For the avoidance of doubt, SiteHive does not warrant that it will back up any Customer Data stored using the Services.

10 INTELLECTUAL PROPERTY

10.1 (Background IP): Each party retains all right, title and interest in and to its own Background IP.

10.2 (Ownership): Title to all Intellectual Property Rights that arise or are obtained or developed in connection with the provision of the Goods and / or Services (Foreground IP), will become and remain the property of SiteHive on its creation. The Customer agrees to do all things necessary to all things necessary to assign all rights to SiteHive to give effect to this clause 10.2.

10.3 (Licence for Customer Data):

(a) The Customer grants SiteHive a worldwide, non exclusive, royalty free, fully paid up, transferable, irrevocable licence to:
(i) use Customer Data, and information about any End Users to generate anonymised and aggregated statistical and analytical data (Analytical Data);
and
(ii) use Analytical Data for SiteHive’s internal research and product development purposes and to conduct statistical analysis and identify tends and insights; and
(iii) supply Analytical Data to third parties.
(b) The Customer acknowledges that all title to, and all Intellectual Property Rights in the Analytical Data is and remains the property of SiteHive.

10.4 (Licence): Under the Agreement, SiteHive grants the Customer, without any rights to sublicence, a non-exclusive, royalty free, non-transferable, revocable licence to use SiteHive’s Foreground IP, and any third party Intellectual Property Rights incorporated in the Goods and / or Services, for the sole purposes of receiving the Goods and / or Services. If the Agreement is terminated or the Customer breaches the Agreement, this licence will automatically terminate.

11 CONFIDENTIALITY

11.1 (Confidential Information): Subject to clause 11.2, each party must:

(a) treat all Confidential Information as secret and confidential and not use such Confidential Information for any unauthorised purpose;
(b) not disclose any Confidential Information to any person other than an employee, agent or representative who requires that information to effectively perform their respective duties, who are aware the information is Confidential Information and who are bound to treat it as such; and
(c) not use any Confidential Information for its own purposes, or for the benefit of any third party, except as expressly authorised under the Agreement or with the consent of the other parties.

11.2 (Exception): Nothing in this clause 11 prevents a party from disclosing Confidential Information:

(a) to comply with any relevant law or requirement of any regulatory body, except that in that case, to the extent permitted, the party that is required to make the disclosure must notify the other parties as soon as reasonably practicable after it becomes aware that disclosure is required and take reasonable steps to prevent or restrict the disclosure of that information;
(b) to the extent that disclosure is required to give effect to the Agreement; or
(c) with the prior written consent of the other party.

12 INSURANCE

(a) During the Term of the Agreement, the parties shall maintain in force, with a reputable insurance company, professional indemnity insurance, product liability insurance, public liability insurance, and any other insurance reasonably required to cover the liabilities that may arise under or in connection with the Agreement or the Customer’s use of the Goods and / or Services.
(b) A party shall upon receiving written request from the other party produce within a reasonable timeframe the certificate of currency giving details of the cover in respect of each insurance contemplated in this clause 12.

13 TERM, TERMINATION AND SUSPENSION

13.1 (Duration): The Agreement:

(a) starts on the Commencement Date; and
(b) continues until the End Date, unless otherwise terminated in accordance with these Conditions, (the Term).

13.2 (Termination): Without affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect by giving written notice to the other party if:

(a) the other party commits a breach of any term of the Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 7 days after being notified in writing to do so;
(b) the other party takes any step or action in * connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business; or
(c) the Customer or the Customer’s employee, contractors or agents, conducts themselves in manner that brings or is likely to bring SiteHive into disrepute.

13.3 (Consequences of termination): Termination or expiry of the Agreement does not affect either party’s rights and obligations that accrued before that termination or expiry. For the avoidance of doubt, any part of the Price which has accrued in respect of the supply of the Goods and / or Services will become due and payable immediately upon termination or expiry of the Agreement.

13.4 (Obligations continuing): Clauses which, by their nature, are intended to survive termination or expiry of the Agreement, including clause 4 (Supply of Goods), clause 5 (Supply of Services), clause 9 (Customer Data), clause 10 (Intellectual Property), clause 11 (Confidentiality), clause 13 (Term, Termination and Suspension), clause 14 (Indemnity and Liability), clause 15 (Force Majeure), clause 16 (Amendment), clause 17 (Dispute Resolution), clause 18 (Subcontracting and Assignment) and clause 19 (General Provisions) continue in force.

14 INDEMNITY AND LIABILITY

14.1 (Indemnification): The Customer must at all times indemnify and hold harmless SiteHive and its officers, employees, contractors and agents from and against any loss (including legal costs and expenses) incurred or suffered by SiteHive arising from any claims against SiteHive in respect of:

(a) the delivery, installation, use or change of use of the Goods and/or Services;
(b) the location, condition and operation of the Goods and/or Services;
(c) seizure, forfeiture or other confiscation of the Goods;
(d) loss, destruction, theft or damage of the Goods however caused, including loss of value resulting from insufficient, inadequate or faulty repair; and
(e) any damage to property or death of, or injury to, any person suffered or sustained in connection with the Goods, SiteHive Enviro Software or the Services.

except to the extent such loss is caused by the gross negligence or wilful misconduct of
SiteHive.

14.2 (No liability): Notwithstanding clause 14.1, the Customer acknowledges that SiteHive is not liable or responsible for any errors, misunderstanding, inappropriateness, omissions, inaccuracies or degradation arising from the Customer’s use of the Goods and / or Services.

14.3 (No indirect loss): To the extent that SiteHive is liable for breach of contract in connection with the supply of the Goods and / or Services, SiteHive excludes liability for loss of profit, revenue, business, savings, data (including Customer Data) or product, loss of production, loss of contract, business interruption costs, loss from delay or delay costs, pure economic loss, increased cost of production, loss of customer goodwill, or other special punitive, indirect, exemplary or consequential loss or damage of any kind howsoever arising and whether or not arising from one or more event and whether or not such loss or liability was foreseeable and whether or not beyond the ordinary measure of loss.

14.4 (Maximum liability): Notwithstanding anything else in the Agreement, the maximum aggregate liability of SiteHive under or in connection with the Agreement or relating to the Goods and / or Services, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not in any year exceed an amount equal to the Price paid by the Customer in the previous six months from the date of the event giving rise to liability (which in the first twelve months is deemed to be the total Price paid by the Customer from the Commencement Date to the date of the first event giving rise to liability).

14.5 (Mitigation): Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of any act or omission by the other party under or in connection with the Agreement.

15 FORCE MAJEURE

15.1 (Force Majeure Event): SiteHive will not be liable for any failure to perform or delay in performing an obligation under the Agreement if the failure or delay arose from a Force Majeure Event.

15.2 (Notice): SiteHive must give the Customer written notice of the nature and extent of the Force Majeure Event as soon as practicable after becoming aware of it and must take all reasonable steps to mitigate the consequences of the failure or the duration of the delay.

16 AMENDMENT

16.1 (Amendment): The Agreement may only be varied by written agreement between the parties from time to time.

16.2 (Effectiveness): Any amendment of the Agreement in accordance with this clause 16 will have full force and effect as if it were contained in the Agreement on the date that it is signed by all parties.

17 DISPUTE RESOLUTION

17.1 (Informal resolution): The parties will initially attempt to resolve any dispute that may arise between them in relation to the performance of the obligations set out in the Agreement, by informal means and at a time and in a manner acceptable to all parties.

17.2 (Issue of notice): If the parties are not able to resolve their dispute by informal means, either party may issue a notice requiring the dispute be resolved in accordance with this clause 17.

17.3 (Mediation): If, after 7 days from the date of the notice given in accordance with clause 17.2, the parties’ dispute remains unresolved, the parties agree to submit to mediation of the dispute.

17.4 (Terms of Mediation): Any mediation of the dispute must:

(a) take place within Sydney, New South Wales; and
(b) be conducted by a mediator selected by the parties, or if no agreement can be reached, by a mediator selected by the President of the Law Society of the New South Wales.

17.5 (Cost): The cost of mediating the dispute will be borne equally by all parties.

17.6 (Urgent relief): This clause 17 does not prevent any party from seeking urgent injunctive, declaratory or other interlocutory relief.

17.7 (No relief from obligations): Notwithstanding that a negotiation, or mediation of the dispute may have commenced, nothing in this clause is intended to relieve any party from providing their obligations under the Agreement.

18 SUBCONTRACTING AND ASSIGNMENT

18.1 (Assignment):

(a) The Customer must not assign, novate, subcontract or transfer any right or obligation under the Agreement without the prior written consent of SiteHive (not to be unreasonably withheld). The Customer remains liable for its obligations under the Agreement despite any approved assignment, subcontracting or transfer. Any assignment, novation, subcontracting or transfer must be in writing.
(b) SiteHive may, at any time, assign, novate, subcontract or transfer any right or obligation under the Agreement (including as a result of Change of Control) without the prior written consent of the Customer. SiteHive remains liable for its obligations under the Agreement despite any assignment, subcontracting or transfer.

19 GENERAL PROVISIONS

19.1 (Notices): A notice required to be given under the Agreement must be in writing and delivered using any of the following means:

(a) hand delivery;
(b) courier; or
(c) e-mail,

in each case to the contact details set out in the Schedule of Particulars or such updated or replacement address notified by a party from time to time.

19.2 (Counterparts): The Agreement may be executed in any number of counterparts which:

(a) when taken together constitute one document; and
(b) once executed, are each an effective instrument.

19.3 (Entire Agreement): The Agreement comprises the parties’ entire understanding in relation to the subject matter of the Agreement and supersedes any prior agreement or arrangement.

19.4 (Cumulative): The rights, remedies and powers of the parties under the Agreement is cumulative and not exclusive of any rights, remedies or powers provided to the parties by law.

19.5 (Consent): Unless the Agreement expressly provides otherwise, any approval or consent required to be obtained under the Agreement may be withheld, given conditionally, or given unconditionally, in each case in the relevant party’s absolute discretion.

19.6 (Waiver): A right granted to one party under the Agreement may only be waived by that party giving notice in writing to the other parties. A party does not waive any right granted under the Agreement merely by not exercising that right immediately.

19.7 (Severance): Any provision of the Agreement, which is invalid or unenforceable in a particular jurisdiction, may be read down or severed to the extent of the invalidity or unenforceability in that jurisdiction only. The invalidity or unenforceability of a provision of the Agreement in one jurisdiction does not affect the:

(a) application of that provision in any other jurisdiction in which it is valid and
enforceable; or
(b) remaining provisions of the Agreement.

19.8 (Acceptance of Agreement): The Customer acknowledges that it will be deemed to have accepted the terms of this Agreement by the Customer or its duly authorised representatives:

(a) signing this Agreement;
(b) electronically consenting to being bound to, or accepting them terms of this Agreement; or
(c) by the Customer’s conduct, including accepting the provision of any Goods and / or Services by SiteHive pursuant to this Agreement.

19.9 (Governing law and Jurisdiction): The Agreement is governed by the laws in force in New South Wales and the parties submit to the exclusive jurisdiction of the Supreme Court of New South Wales to decide any dispute between them in relation to the Agreement.