Terms and Conditions
Last updated April 22, 2026
Your attention is drawn to the following key terms:
A. You are responsible for the acts and omissions of your users of the Supplies as if they were your own acts or omissions.
B. You acknowledge and agree that we are not responsible for your use of the Supplies, or any actions you take or conclusions you reach based on your use of the Supplies.
C. You acknowledge and agree that the AI generated outputs may contain errors, inaccuracies or “hallucinations” and must not be relied upon or used without you first ensuring that an appropriate level of human review and verification has taken place by you by appropriately qualified personnel with relevant expertise.
D. Our Product includes a platform to assist with your management of employees. You acknowledge and agree that, by providing the Supplies under this Contract, we do not provide any legal advice or any other professionally regulated advice, and you agree not to treat the Supplies as such. The Supplies are only for the intended use for which they are supplied by us.
E. Important restrictions, obligations and disclaimers in relation to the Supplies are set out in clauses 7 and 13. You must review these carefully and, in several areas, it is your responsibility to ensure that any users observe these terms.
F. Please ensure that you understand all the limitations of the Supplies, as well as our arrangement for Charges, before you start using the Supplies.
G. Subscriptions automatically renew unless either party gives 30 days’ notice of non-renewal.
H. Typically, you cannot cancel a Subscription part-way through the Initial Subscription Period or any Subscription Renewal Period.
I. Typically, payments of Charges are in advance and are non-refundable.
J. Important limitations of our liability are set out in clause 14.
K. These Terms are governed by the laws of New South Wales, Australia.
Who we are and how to contact us
1.1 We are ReFresh OS Pty Ltd ACN 687 813 832 of 28 Pearl Bay Avenue, Mosman NSW 2088, Australia (we, us and our).
Understanding these Terms
2.1 We use bold text in these terms and conditions (Terms) to identify where a word has been given a specific meaning. For example, you and your refer to the party that is identified as our customer in an Order.
Placing an order and its acceptance
3.1 We supply access to our software-as-a-service product (Products) and related services such as training (Services) which together, we refer to as Supplies.
3.2 We agree to supply, and you agree to acquire, Supplies when you agree an order with us online or otherwise in writing in relation to those Supplies (Order), at which point and on which date (Commencement Date) a contract comprising these Terms and the Order between you and us will come into existence (Contract). The Order will set out the corresponding Supplies. The Contract will relate only to those Supplies confirmed in the Order.
3.3 If you accept an offer via a cloud marketplace that references these Terms, that acceptance will constitute an Order.
3.4 To the extent permitted by law, no other terms are implied by trade, custom, practice or course of dealing.
Access Periods and Subscriptions
4.1 Usually, access to our Products is by way of subscription (Subscription). A Subscription commences on the Subscription Start Date set out in the Order and continues for:
(a) the Initial Subscription Period set out in the Order and if it is not set out in the Order, it is 12 months; and
(b) any Subscription Renewal Periods,
(the Initial Subscription Period and any Subscription Renewal Periods are together, the Access Period).
4.2 Unless either party gives 30 days’ notice before the expiry of the Initial Subscription Period, the Subscription will renew for 12 months (Subscription Renewal Period).
4.3 Unless either party gives 30 days’ notice before the expiry of a Subscription Renewal Period, the Subscription will renew for a further Subscription Renewal Period (and will continue to do so).
4.4 Subject to your rights under the Australian Consumer Law and other applicable legislation, it is not possible to cancel a Subscription part-way through the Initial Subscription Period or any Subscription Renewal Period except where we agree in writing or where you are entitled to terminate under clause 16.
4.5 Occasionally, in an Order, we might agree to a different period in which you may access the Products (in which case that period will be the Access Period).
Other restrictions
5.1 The Order may specify use restrictions that apply to access to the Products.
5.2 We may charge you for, and you agree to pay us for, any use beyond those use restrictions, at our then-current rates (which we will notify to you in writing prior to charging).
Services
6.1 We must provide any Services with due care and skill.
6.2 We will use reasonable endeavours to provide any Services by the applicable delivery date set out in the Order.
6.3 We will not be responsible for any failure to provide the Services where any assumptions stated in the Order are not met.
Your obligations
7.1 It is your responsibility to ensure that:
(a) the terms of your Order are complete and accurate;
(b) you cooperate with us in all matters relating to the Supplies;
(c) you provide us with such information and materials we may reasonably require in order to supply the Supplies, and ensure that such information is complete and accurate in all material respects;
(d) you perform all Customer responsibilities identified in the Order;
(e) you obtain and maintain all necessary licences, permissions and consents which may be required for the Supplies before the date on which the Supplies are to be provided; and
(f) you comply with all applicable laws.
7.2 If our ability to provide the Supplies is prevented or delayed by any failure by you to fulfil any obligation listed in clause 7.1 (Your Default):
(a) we will be entitled to suspend access to the Supplies (after giving you 7 days' written notice to remedy the default, except in cases of emergency or where Your Default poses an immediate risk to our systems or other customers) until you remedy Your Default, and to rely on Your Default to relieve us from the obligation to provide the Supplies, in each case to the extent Your Default prevents or delays our provision of the Supplies. In certain circumstances Your Default may entitle us to terminate the Contract under clause 16 (Termination);
(b) we will not be responsible for any costs or losses you sustain or incur arising directly or indirectly from our failure or delay to provide the Supplies; and
(c) you will reimburse us on written demand for any reasonable costs or losses that we sustain or incur arising directly from Your Default.
7.3 You are responsible for all use of the Supplies, and must ensure that no person uses the Supplies:
(a) in breach of this Contract;
(b) for any purpose other than your internal business purposes;
(c) in a manner that breaks any law or infringes any person’s rights (including, but not limited to, intellectual property rights);
(d) in any way that damages, interferes with or interrupts the supply of the Supplies;
(e) to transmit, publish, communicate, view or create any material that is or may be pornographic, defamatory, offensive, menacing, unwanted, obscene, illegal or unlawful; or
(f) in a way that disrupts, misuses or excessively uses our (or any of our third-party service provider’s) hardware, bandwidth access, storage space or our (or any of our third party service provider’s) other resources.
7.4 Additionally, you must not:
(a) permit any third party to access the Supplies;
(b) share any user credentials;
(c) engage in data scraping, web crawling, or the use of bots or other automated data collection tools in connection with the Supplies;
(d) remove or alter any proprietary notices or legal markings from the Supplies;
(e) lease, sublicence, resell or otherwise distribute Supplies or content from the Supplies;
(f) create derivative works based on any Supplies or our website;
(g) copy, frame or mirror any part or content of any Supplies or our website;
(h) reverse engineer any Supplies or our website (except to the extent permitted by applicable law); or
(i) access any Supplies or our website in order to:
(i) build a competitive product or service; or
(ii) copy any features, functions or graphics of any Supplies or our website, and must ensure that no person does any of the acts described in clause 7.4(a) to 7.4(i).
7.5 You agree to, and will procure that your End Users, use the Supplies only in compliance with our reasonable published usage policies (Usage Policies) as notified to you in writing and as amended from time to time upon at least 30 days' prior written notice to you. We will provide you with access to current Usage Policies upon request.
7.6 Although we have no obligation to monitor your use of the Supplies, we may do so and may, in our sole discretion, prohibit any use of the Supplies that we reasonably believe may be in violation of the Usage Policies or applicable laws and regulations.
7.7 You are responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Supplies, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, Equipment).
7.8 You acknowledge and agree that it is your sole responsibility to ensure that:
(a) the facilities and functions of the Supplies meet your requirements; and
(b) the Supplies are appropriate for your specific circumstances and are within the laws and regulations of your jurisdiction.
7.9 You are responsible for the acts and omissions of your users of the Supplies as if they were your own acts or omissions.
7.10 Subject to clause 14.5, you acknowledge and agree that we are not responsible for your use of the Supplies, or any actions you take or conclusions you reach based on your use of the Supplies.
Support
8.1 Unless we agree otherwise, we have no obligation to provide any support services to you in relation to the Supplies, other than to use reasonable endeavours to provide the Supplies in accordance with our practices described in the Order.
Charges
9.1 In consideration of us providing the Supplies, you must pay our charges (Charges) in accordance with this clause 9.
9.2 The Charges are the prices set out in the Order.
9.3 Our Charges are exclusive of goods and services tax (GST). Where GST is payable in respect of some or all of the Supplies, you must pay us such additional amounts in respect of GST, at the applicable rate, at the same time as you pay the Charges.
9.4 We may change the Charges and add new Charges at the start of a Subscription Renewal Period upon at least 45 days’ prior written notice to you (which may be sent by email).
9.5 If payment is made via credit card or similar, we may automatically bill that method for recurring charges (renewals/add-ons), unless otherwise agreed.
9.6 You are responsible for paying all taxes associated with your purchase of the Supplies, excluding taxes based on our net income or receipts, property or employees.
10. Invoicing and payment
10.1 Invoicing and payment arrangements are as set out in the corresponding Order.
10.2 To the extent permitted by law, payments are non-refundable, except:
(a) in the event of valid termination for cause by you, in which case we will refund you any prepayments made that relate to the period after termination; or
(b) if you are otherwise entitled to a refund under the Australian Consumer Law or other applicable consumer protection legislation.
10.3 We will send you an electronic invoice within seven days of the beginning of the month following payment.
10.4 If you fail to make a payment under the Contract by the due date, then, without limiting our remedies under clause 16 (Termination), you will have to pay interest on the amount unpaid at the daily 11.00 am cash rate quoted on the Reserve Bank of Australia's website (or if that rate is no longer published, such equivalent rate as we reasonably determine) plus 4% per annum. Interest accrues on a day-to-day basis from the due date up to and including the date of actual payment. You additionally agree to pay all our reasonable costs associated with recovery of overdue Charges.
10.5 Notwithstanding the rest of clause 10, if you acquire Supplies through a cloud marketplace (e.g., AWS Marketplace, Azure Marketplace), billing and refunds may be handled via that marketplace.
11. Intellectual property rights
11.1 All intellectual property rights in the Supplies (including any improvements, customisations and modifications to the same) will be owned by us (or our licensors).
11.2 We agree to grant you a fully paid-up, worldwide, non-exclusive, royalty-free licence during the Access Period to access the Products specified in your Order for the purpose of receiving and using those Products for your internal business purposes. You may not sub-license, assign or otherwise transfer the rights granted in this clause 11.2.
11.3 In these Terms, Customer Materials means all intellectual property rights, data, information, content, materials, documentation, prompts, inputs and other items (in any form) that you or your users provide, upload, submit, transmit or otherwise make available to us or to the Supplies in connection with this Contract, including any personal information but, for the avoidance of doubt, excludes the Supplies and any Feedback you provide.
11.4 As between you and us, all intellectual property rights in any Customer Materials (including any improvements, customisations and modifications to those intellectual property rights) will be owned by you as will your outputs derived from the Supplies (except to the extent they comprise our intellectual property rights).
11.5 You grant us a fully paid-up, worldwide, non-exclusive, royalty-free, non-transferable licence during the Access Period to copy and modify any Customer Materials provided by you to us for the purpose of providing the Supplies to you and supporting those Supplies.
11.6 You grant us a fully paid-up, worldwide, non-exclusive, royalty-free, irrevocable, perpetual, transferable and sublicensable licence to use, reproduce, modify, create derivative works from, distribute and otherwise exploit any suggestions, ideas, enhancement requests, recommendations, feedback or other information you or your users provide relating to the Supplies (Feedback) for any purpose, including to develop, improve and commercialise the Supplies, without any obligation to you.
11.7 We may collect and use anonymised, pseudonymised and/or aggregated data derived from your use of the Supplies, including metadata and usage statistics (Usage Data), for the purpose of analytics, benchmarking, service improvement, support, product development, and marketing.
11.8 No rights or licenses are granted except as expressly set out in this Contract.
11.9 Each party (Indemnifying Party) indemnifies and holds harmless the other party (Indemnified Party) from and against any loss, damage, liability, cost or expense (including reasonable legal costs) suffered or incurred by the Indemnified Party arising out of any claim, demand, action or proceeding by a third party that the Supplies (in the case of us as the Indemnifying Party) or Customer Materials (in the case of you as the Indemnifying Party), when used in accordance with this Contract, infringe any third party’s intellectual property right (IP Claim).
11.10 The Indemnified Party must promptly notify the Indemnifying Party of any IP Claim and provide reasonable information and assistance in relation to the defence and settlement of the IP Claim.
11.11 The Indemnifying Party will have sole control of the defence and settlement of the IP Claim, provided that the Indemnifying Party must not settle an IP Claim in a manner that imposes any admission of liability, restriction on the Indemnified Party’s conduct or obligation on the Indemnified Party (other than payment of money covered by the indemnity) without the Indemnified Party’s prior written consent (not to be unreasonably withheld or delayed).
11.12 In the case of us as the Indemnifying Party, the indemnification given by us in this clause does not apply to the extent an IP Claim arises from:
(a) any modification of the Supplies not made or authorised in writing by us;
(b) combination of the Supplies with any products, services, software, data or materials not supplied by us, where the infringement would not have occurred but for that combination;
(c) use of the Supplies otherwise than in accordance with this Contract or applicable documentation; or
(d) any Customer Materials or any instructions, specifications or requirements given by you, to the extent the IP Claim would not have occurred but for those Customer Materials, instructions, specifications or requirements.
11.13 If an IP Claim is made or, in our reasonable opinion, is likely to be made in respect of the Supplies, we may (at our option and expense):
(a) procure for you the right to continue using the affected Supplies;
(b) modify or replace the affected Supplies so that they become non-infringing (without materially reducing their functionality); or
(c) if neither of the above is reasonably practicable, terminate the affected Supplies (or this Contract) on written notice and refund any pre-paid Charges for the terminated portion of the Access Period.
12. Personal information, data and security
12.1 We will use and disclose any personal information you provide to us to:
(a) provide the Supplies;
(b) process your payment for the Supplies;
(c) inform you about similar products or services that we provide, but you may stop receiving this information at any time by contacting us or using the unsubscribe mechanism in our communications; and
(d) as provided for in our Privacy Policy which is available here.
12.2 Each party agrees to comply with its obligations under the Privacy Act 1988 (Cth) and any other legislation affecting privacy, personal information or the collection, handling, storage, processing, use or disclosure of data to the extent that such legislation applies to that party in connection with performance of this Contract (Privacy Laws).
12.3 You agree to procure all permissions and make all disclosures necessary to allow us to obtain, use and disclose the personal information and sensitive information (as those terms are used in the Privacy Act 1988 (Cth)) that you and any user (including your End Users) provide or make available to us in the course of this Contract, or that we access from any End Users or platform in the course of providing the Supplies, for the purposes of:
(a) performing this Contract;
(b) the purposes set out in our Privacy Policy; and
(c) as otherwise required or permitted by law.
You agree to indemnify us and hold us harmless against all claims, loss, damage, costs, expenses, legal fees, penalties, fines, demands or liability that we incur or suffer arising out of or in connection with your breach of this clause 12.3.
12.4 You must provide us with all assistance reasonably required and comply with all reasonable directions given by us from time to time in relation to our Privacy Policy, our compliance with the Privacy Laws or any investigation, request or enquiry (formal or otherwise) from the Office of the Australian Information Commissioner or any other regulatory body regarding the information disclosed to us under this Contract.
12.5 You must notify us promptly if you become aware of any breach, suspected breach, or likely breach of this clause 12, or any data breach, unauthorised access or security incident involving personal information provided to us under this Contract.
12.6 You must ensure that your computer network and systems are secure and implement and maintain appropriate technical and organisational measures consistent with industry standards to protect any data accessed through or stored in connection with the Supplies, including personal information. You are solely responsible for the security of your data, your computer network and systems, and your user credentials.
12.7 We must notify you without undue delay and in any event within 72 hours after becoming aware of any data breach, unauthorised access or security incident involving Customer Materials or personal information provided to us under this Contract (a Security Incident). We will provide reasonable information about the Security Incident as it becomes available and will cooperate with you in good faith to assist you in complying with applicable Privacy Laws and notification obligations.
12.8 We will implement and maintain reasonable and appropriate administrative, physical and technical safeguards during the applicable Access Period designed to protect the security, confidentiality and integrity of Customer Materials against unauthorised or unlawful access, disclosure, alteration or destruction.
12.9 Without limiting clause 12.8, our safeguards will include (to the extent appropriate having regard to the nature of the Customer Materials and the Supplies):
(a) encryption of Customer Materials in transit and at rest (where supported by the relevant systems);
(b) logical access controls (including role-based access and least-privilege principles) and multi-factor authentication for administrative access;
(c) security logging and monitoring of production systems;
(d) a vulnerability management and patching program; and
(e) periodic security awareness training for personnel with access to Customer Materials.
12.10 Upon reasonable request (no more than once in any 12-month period), we will make available to you reasonable information regarding our security program relevant to the Supplies, which may include copies or summaries of our policies and any third-party assurance reports or certifications that we obtain from time to time (if any), subject to confidentiality and security requirements.
12.11 We may use sub-processors and service providers to support provision of the Supplies. We will ensure that any sub-processor that processes Customer Materials on our behalf is subject to written obligations materially consistent with this clause 12. A list of our current sub-processors is available at https://trust.refresh.tech/ (as updated from time to time). We will provide reasonable prior notice of any material change to that list and, if you reasonably object to a new sub-processor on data protection grounds, the parties will work in good faith to address your concerns.
13. Restrictions, obligations and disclaimers
13.1 You represent, warrant and undertake to us that:
(a) all information given to us in relation to this Contract is correct, complete and not misleading; and
(b) any material, content, data or information that you supply, provide or make available to us will not and does not:
(i) infringe or breach any third party intellectual property rights, privacy rights, confidentiality obligations or other rights;
(ii) breach any applicable laws or regulations;
(iii) contain any viruses, malware or harmful code; or
(iv) contain material that is defamatory, offensive, obscene or otherwise unlawful.
13.2 Subject to clause 14.5, to the extent permitted by law and except where otherwise expressly stated:
(a) we do not guarantee that the Products, or any services provided in connection with the Product, will always be available, uninterrupted or be error-free;
(b) we do not make any warranty as to the results that may be obtained from use of the Products;
(c) the Supplies are provided on an "as is" and "as available" basis, and (except as set out in these Terms) we make no representations or warranties, express or implied, regarding the operation or availability of the Supplies;
(d) we may change the content of a Product from time-to-time providing we do not remove material functionality without providing an equivalent or better replacement to that functionality;
(e) without limiting the generality of clauses 13.2 and 13.2(c), we do not warrant that the Supplies will meet your requirements, will operate in combination with other software or integrations;
(f) we do not warrant that all software errors, defects or inefficiencies will be corrected and we do not assume any liability for failure to correct any such errors, defects or inefficiencies;
(g) you acknowledge and agree that the AI generated outputs may contain errors, inaccuracies or “hallucinations” and must not be relied upon or used without you first ensuring an appropriate level of human review and verification has taken place by you by appropriately qualified personnel with relevant expertise; and
(h) we make no warranty, and you assume the entire risk, as to the capabilities, suitability, use or performance of any Supplies under this Contract.
13.3 Among other things, the operation and availability of the systems used for accessing the Supplies, including computer networks and the internet, can be unpredictable and may from time to time interfere with or prevent access to the Supplies. Subject to clause 14.5, we are not responsible or liable for any of these failures. We will use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption.
13.4 Subject to clause 14.5 and to the extent permitted by applicable law, we exclude all express, statutory and implied conditions, guarantees and warranties in relation to any Supplies other than the warranties expressly set out in this Contract.
13.5 If you choose, or you are provided with, a user identification code, password or any other piece of information as part of our security procedures, you must treat such information as confidential. You must not disclose it to any third party. We have the right to disable any user identification code or password, whether chosen by you or allocated by us, at any time, if in our reasonable opinion you have failed to comply with any of the provisions of the Contract. If you know or suspect that anyone other than you knows your user identification code or password, you must promptly notify us.
13.6 Our Product includes a platform to assist with your management of employees. You acknowledge and agree that, by providing the Supplies under this Contract, we do not provide any legal advice or any other professionally regulated advice, and you agree not to treat the Supplies as such. The Supplies are only for the intended use for which they are supplied by us.
13.7 You acknowledge that the Supplies may include artificial intelligence, machine learning or predictive analytics functionalities developed by or on behalf of ReFresh or its licensors (AI Features). Customer acknowledges and agrees that:
(a) outputs generated by AI Features (AI Outputs) may vary in accuracy and quality;
(b) similar prompts may generate similar outputs across different customers;
(c) the same input may yield different results over time; and
(d) to the extent permitted by law, AI Outputs are provided “as is” and without warranty of accuracy, completeness, reliability or fitness for purpose.
13.8 You are solely responsible for evaluating the appropriateness of AI Outputs before relying on or using them. AI Outputs must not be presented as having been human-generated.
13.9 To the extent permitted by law, we disclaim all liability in connection with your or your users’ use of or reliance on AI Outputs.
13.10 Any descriptions or illustrations on our website are published for the sole purpose of giving an approximate idea of the products and services described in them.
13.11 Depending on the Supplies in your Order, you may enable integrations with third-party applications or services (Third Party Products). Use of such Third Party Products is subject to the corresponding third party’s terms. To the extent permitted by law, we disclaim any responsibility or liability arising from Third Party Products or any third-party services (e.g., audits or penetration testing) arranged independently by you, including those referenced in any Order Form.
14. Limitation of liability
14.1 Nothing in this Contract limits or excludes either party’s liability:
(a) for death or personal injury caused by its negligence or wilful misconduct or that of its employees, as applicable;
(b) for fraud or fraudulent misrepresentation by it or its employees, as applicable; or
(c) where liability cannot be limited or excluded by applicable law.
14.2 Subject to clause 14.1 and 14.5, neither party is liable to the other, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with this Contract, including (but not limited to) any:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of production;
(d) loss of agreements or contracts;
(e) loss of business opportunity;
(f) loss of anticipated savings;
(g) loss of or damage to goodwill;
(h) loss of reputation; or
(i) loss of use or corruption of software, data or information.
14.3 Subject to clauses 14.1, 14.2, 14.4 and 14.5, and other than your obligation to pay the Charges, each party’s maximum aggregate liability to the other for any loss or damage or injury arising out of or in connection with this Contract, including any breach of this Contract however arising, under any indemnity, in tort (including negligence), under any statute, custom, law or on any other basis in each 12-month period following the Commencement Date is limited to the actual Charges paid by you to us under this Contract in that 12-month period.
14.4 Subject to clauses 14.1, 14.2 and 14.5, each party’s maximum aggregate liability to the other for any loss or damage or injury arising out of or in connection with the indemnity in clause 11.9 (intellectual property rights indemnity) and/or breach of clauses 12 (Personal information, data and security) and/or 15 (Confidentiality) is limited in the aggregate to $5 million.
14.5 Nothing in this Contract is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of Part 5-4 of the Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth) (ACL), or the exercise of a right conferred by such a provision, or any liability of ours in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of goods or services.
14.6 If we are liable to you in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, our total liability to you for that failure is limited to, at our option:
(a) in the case of services, the resupply of the services or the payment of the cost of resupply; and
(b) in the case of goods, the replacement of the goods or the supply of equivalent goods, or the repair of the goods, or the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired.
14.7 This clause 14 will survive termination of the Contract.
15. Confidentiality
15.1 We each undertake that we will not at any time disclose to any person any confidential information concerning one another's business, affairs, customers, clients or suppliers, except as permitted by clause 15.2.
15.2 We each may disclose the other's confidential information:
(a) where the information is in the public domain as at the date of this Contract (or subsequently becomes in the public domain other than by breach of any obligation of confidentiality binding on either of us);
(b) if either of us is required to disclose the information by applicable law or the rules of any recognised stock exchange or other document with statutory content requirements, provided that the recipient has to the extent practicable having regard to those obligations and the required timing of the disclosure consulted with the provider of the information as to the form and content of the disclosure;
(c) where the disclosure is expressly permitted under this Contract or is necessary to fulfil an obligation under this Contract (for example, disclosure to our subprocessors);
(d) if disclosure is made to our respective officers, employees, contractors, related bodies corporate and professional advisers to the extent necessary to enable either of us to properly perform our obligations under this Contract, in which case the we each must ensure that such persons keep the information secret and confidential and do not disclose the information to any other person;
(e) where the disclosure is required for use in legal proceedings regarding this Contract; or
(f) if the party to whom the information relates has consented in writing before the disclosure.
15.3 Each of us may only use the other's confidential information for the purpose of fulfilling our respective obligations and enjoy our respective rights under the Contract.
15.4 This clause 15 will survive termination of the Contract.
16. Termination
16.1 Without affecting any of our other rights, we may suspend the provision of the Supplies, or terminate this Contract with immediate effect by giving written notice to you if:
(a) you fail to pay any undisputed amount due under this Contract on the due date for payment and you remain in default not less than 30 days after being notified in writing to make such payment;
(b) you commit a material breach of any other term of this Contract and that breach is irremediable or (if that breach is remediable) you fail to remedy that breach within a period of 10 days after being notified in writing to do so;
(c) subject to any provision of the Corporations Act 2001 (Cth) or any related subordinate legislation that may prevent or restrict the exercise of a right of termination or other right under this Contract, an insolvency event occurs in relation to you; or
(d) you undergo a change of control (if you are a company) and the person or entity acquiring control is a direct competitor of ours or we reasonably believe the change of control is likely to materially and adversely affect our legitimate business interests (including default risk, information security risks or regulatory/sanctions risk).
16.2 Without affecting any of your other rights, you may terminate this Contract with immediate effect by giving written notice to us if:
(a) we commit a material breach of any other term of this Contract and that breach is irremediable or (if that breach is remediable) we fail to remedy that breach within a period of 14 days after being notified in writing to do so; or
(b) subject to any provision of the Corporations Act 2001 (Cth) or any related subordinate legislation that may prevent or restrict the exercise of a right of termination or other right under this Contract, an insolvency event occurs in relation to us.
16.3 On termination of this Contract:
(a) you must immediately stop using the Supplies;
(b) we will make your data available to you in a form that we deem appropriate (acting reasonably) for a period of thirty days, after which we may, but are not obliged to, delete your stored data (subject to any applicable legal restriction).
16.4 Termination of this Contract does not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages for any breach of the Contract that existed at or before the date of termination.
16.5 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination will remain in full force and effect.
17. Force majeure
17.1 A party will not be liable or responsible for any failure to perform, or delay in performance of, any of its obligations under the Contract (other than payment obligations) that is caused by any act or event beyond its reasonable control (Event Outside Of Control).
17.2 If an Event Outside Of Control takes place that affects the performance of obligations under the Contract:
(a) the affected party will contact the other party as soon as reasonably possible to notify the other party; and
(b) the affected party’s obligations under the Contract will be suspended and the time for performance of its obligations will be extended for the duration of the Event Outside Of Control, provided that if the Event Outside Of Control continues for more than 90 days, either party may terminate this Contract by giving 14 days' written notice to the other party.
18. Dispute resolution
18.1 The parties agree to use best endeavours to resolve in good faith any dispute concerning this Contract.
18.2 If a dispute arises between the parties that cannot be resolved promptly, either party may notify the other party of a formal dispute. Each party must nominate a senior executive to meet within 7 days of the notice (or another agreed period) to try and resolve the dispute.
18.3 Any dispute, controversy or claim arising out of, relating to or in connection with this contract, including any question regarding its existence, validity or termination, shall be resolved by arbitration in accordance with the ACICA Arbitration Rules. The seat of arbitration shall be Sydney, Australia. The language of the arbitration shall be English. The number of arbitrators shall be one.
19. Trial, pilot or beta access
19.1 If we agree to provide you with access to the Supplies on a trial, pilot or beta basis, your Order will set out:
(a) a time period in which the trial, pilot or beta access will be provided; and
(b) use restrictions that apply to the trial, pilot or beta access.
19.2 If you exceed the time period or any use restrictions, we have the right to immediately suspend your access to the Supplies.
19.3 When provided on a trial, pilot or beta basis, and to the extent permitted by law, in no event will we, our affiliates or their licensors, service providers, employees, agents, officers or directors be liable for damages of any kind, under any legal theory, arising out of or in connection with your use, or inability to use, the Supplies, including any direct, indirect, special, incidental, consequential or punitive damages, including but not limited to, personal injury, pain and suffering, emotional distress, loss of revenue, loss of profits, loss of business or anticipated savings, loss of use, loss of goodwill, loss of data, and whether caused by tort (including negligence), breach of contract or otherwise, even if foreseeable. Notwithstanding anything to the contrary in the Contract, we offer no indemnification in relation to Supplies provided on a trial, pilot or beta basis.
19.4 Any information submitted by you during a trial, pilot or beta may be deleted following expiry of that trial period unless you enter into a full Subscription or export your data before expiry.
19.5 We may discontinue trial, pilot or beta access at any time in our discretion and are under no obligation to make the features of such access generally available.
20. Insurance
20.1 ReFresh must, at its own cost, maintain during the Access Period the following insurances with reputable insurers:
(a) professional liability insurance;
(b) network security liability insurance;
(c) privacy liability insurance;
(d) cyber incident response costs insurance;
(e) public liability insurance;
(f) products liability insurance; and
(g) workers’ compensation insurance.
20.2 On request by you, ReFresh must provide current certificates of currency for those insurances.
21. Notices
21.1 When we refer to "in writing" in these Terms, this includes email.
21.2 Any notice or other communication given by one of us to the other under or regarding the Contract must be in writing and be delivered personally, sent by pre-paid post or email.
21.3 A notice or other communication is deemed to have been received:
(a) if delivered by hand to the nominated address, when delivered to the nominated address;
(b) if sent by pre-paid post, at 9.00 am (addressee's time) on the second Business Day after the date of posting; or
(c) if sent by email, at the time the email is sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that the email has not been delivered, provided that if the email is sent after 5:00 pm (addressee's time) or on a day that is not a Business Day, it is deemed to be received at 9:00 am (addressee's time) on the next Business Day.
21.4 In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email, that such email was sent to the specified email address of the addressee.
21.5 The provisions of this clause 21 will not apply to the service of any proceedings or other documents in any legal action.
22. Variation
22.1 If we propose to amend these Terms unilaterally, we will give you at least 30 days' written notice of any proposed change to these Terms, and
(a) if the change is material and is not detrimental to you, or the change is not material, that change will have effect from the latest of:
(i) the date identified in the written notice; and
(ii) 30 days from the date of the written notice; and
(b) if the change is material and is detrimental to you, we will contact you to discuss amending these Terms. If we cannot reach agreement within 30 days, you may terminate this Contract by giving us 30 days' written notice, without penalty.
23. Subcontractors
We may engage subcontractors to provide any part of the Supplies. We are responsible for the acts and omissions of any subcontractor as if they were our own acts and omissions.
24. No waiver
24.1 Neither of us may rely on the words or conduct of any other party as being a waiver of any right, power or remedy arising under or in connection with this Contract unless the other party or parties expressly grant a waiver of the right, power or remedy. Any waiver must be in writing, signed by the party granting the waiver and is only effective to the extent set out in that waiver.
24.2 Words or conduct referred to in clause 24 include any delay in exercising a right, any election between rights and remedies and any conduct that might otherwise give rise to an estoppel.
25. Assignment
25.1 A party may assign or transfer its rights or its obligations under the Contract to another person with the other party’s consent (such consent not to be unreasonably withheld). However, a party (the first party) may assign this Contract without the other party’s consent to:
(a) any of the first party’s related bodies corporate (as defined in the Corporations Act 2001 (Cth));
(b) any successor to the first party’s business (including by way of merger, acquisition, corporate reorganisation or sale of substantially all of the first party’s assets); or
(c) any government entity or authority that assumes responsibility for the first party’s functions,
Any assignment under this clause 25.1 takes effect only if the assignee agrees in writing to be bound by this Contract, and the first party remain responsible for performance of its obligations until that occurs.
26. Severability
26.1 If the whole or any part of a provision of this Contract is or becomes invalid or unenforceable under the law of any jurisdiction, it is severed in that jurisdiction to the extent that it is invalid or unenforceable and whether it is in severable terms or not.
26.2 Clause 26.1 does not apply if the severance of a provision of this Contract in accordance with that clause would materially affect or alter the nature or effect of the parties' obligations under this Contract.
27. Relationship of the parties
The Contract is between you and us. No other person has any rights to enforce any of its terms.
28. Announcements
No party will make, or permit any person to:
(a) make any public announcement statement, press release or other publicity or marketing materials concerning the existence, subject matter or terms of this Contract, the wider transactions contemplated by it, or the relationship between the parties; or
(b) use the other party's trade marks, service marks, trade names, logos, symbols or brand names,
in each case, without the prior written consent of the other party, such consent not to be unreasonably withheld, conditioned or delayed, except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
29. Export compliance
You acknowledge that the Supplies may be subject to export control laws and regulations. You must not access or use the Supplies in violation of such laws or in any jurisdiction subject to embargo or sanctions. You also represent that you are not listed on any applicable sanctions or export control list.
30. Anti-corruption
Each party represents that it has not received or been offered any improper payment, bribe, kickback, or thing of value from the other party’s personnel in connection with this Contract. Reasonable gifts and hospitality in the ordinary course of business are excluded. If a party becomes aware of any breach of this clause, it shall promptly notify the other party.
31. Modern Slavery
31.1 We must comply with all applicable modern slavery and human trafficking laws and regulations in connection with this Contract, including the Modern Slavery Act 2018 (Cth) (together, Modern Slavery Laws).
31.2 We represent and warrant that we have not been convicted of, and are not the subject of any investigation, inquiry or enforcement proceedings in relation to, any offence under Modern Slavery Laws.
31.3 We must implement and maintain policies and procedures designed to identify, assess and address risks of modern slavery in our operations and supply chains relevant to the Supplies, including:
(a) supplier and subcontractor due diligence and risk assessment processes (including in relation to our key service providers and sub-processors); and
(b) appropriate training for relevant personnel.
31.4 We must maintain appropriate records evidencing our compliance with this clause and, upon reasonable request by you (no more than once in any 12-month period unless required by law, a regulator or a credible allegation of modern slavery), provide reasonable information demonstrating our compliance (which may include copies or summaries of relevant policies, training materials, and due diligence processes, subject to confidentiality and security requirements).
31.5 We will notify you promptly if we become aware of any actual or suspected modern slavery in connection with the performance of this Contract (including within our relevant operations or supply chain) and will cooperate in good faith with you regarding any reasonable remediation steps.
31.6 If you reasonably require us to support your compliance with Modern Slavery Laws (including preparing or updating a modern slavery statement), we will provide reasonable assistance, provided that any such assistance is limited to information within our knowledge or control and does not require disclosure of commercially sensitive information beyond what is reasonably necessary.
32. Governing law and jurisdiction
These terms and conditions, their subject matter and their formation, are governed by New South Wales law. You and we both agree that the courts in New South Wales will have non-exclusive jurisdiction.