ACONEX TERMS OF SERVICE AGREEMENT (AUSTRALIA AND NEW ZEALAND)
Both Paying Organisations and Non-Paying Organisations must accept this Agreement in order to use the Aconex services. However, some provisions of this Agreement apply only to Paying Organisations and a few provisions apply only to Non-Paying Organisations. If your organization is paying Aconex for Services, then your organization is a Paying Organisation. If your organization is using the Services and another organization is paying, your organization is a Non-Paying Organisation. Please read this Agreement carefully. If you are unsure whether your organization is a Paying or Non-Paying Organisation, or you have other questions about this Agreement, please contact Aconex on your local helpdesk number (listed at www.aconex.com, 1300 ACONEX if calling from within Australia or 0800 ACONEX if calling from within New Zealand) or by email to firstname.lastname@example.org.
1.1 Aconex means for Paying Organisations, the entity specified on the Services Order or if none, and for all Non-Paying Organisations, Aconex Limited (ABN 49 091 376 091), a company incorporated in Australia, and, unless expressly included in the Agreement, excludes any Aconex Affiliates.
1.2 Aconex Affiliate means (a) Aconex; (b) any entity controlling or controlled by Aconex; and (c) any entity under common control with Aconex, for so long as such common control continues to exist, where “control” means ownership either directly or indirectly of not less than 50% of the voting shares.
1.3 Aconex Reseller means an entity authorized by Aconex to market, sell, offer or deliver some or all of the Services.
1.4 AEST means Australian Eastern Standard Time.
1.5 Agreement means (i) this Aconex Terms of Service Agreement; and (for Paying Organisations only) (ii) the applicable Service Order.
1.6 Business Day means a day that is not a Saturday, Sunday or holiday observed by Aconex in Melbourne, Australia.
1.7 Client means a Paying Organisation or a Non-Paying Organisation.
1.8 Client Data means data related to the Engagement(s) which the Client uploads to or transmits via the Platform and includes first level metadata (such as the time, date, distribution parties relating to a specific document or item of correspondence on any Hosted Platform) but excludes secondary metadata (such as the structure of database tables within the Platform code and folder structures established on the Hosted Platform).
1.9 Confidential Information means any non-public information disclosed by either Party to the other Party in writing which is designated as “confidential” or “proprietary” (or with a similar legend), or that is disclosed orally and confirmed in writing as confidential within a reasonable time. Even if not so marked, the Parties agree that Client Data and the terms of this Agreement are Confidential Information.
1.10 Data Archive means the services Aconex provides relating to the provision of Client Data to Client as described in Section 3.1(f)(i) or 3.1(f)(ii).
1.11 Effective Date means the date the Client accepts this Agreement by clicking the button “I agree” below, or for Paying Organisations and only if earlier, the date stipulated in the Service Order.
1.12 Engagement means the scope described in the applicable Service Order.
1.13 Fees means the charge(s) payable by the Client to Aconex pursuant to this Agreement, as specified in the Service Order and this Agreement.
1.14 Force Majeure Event means any forces of nature, disruptions to the internet infrastructure, public bandwidth shortages, industrial action, acts of terrorism, protests, riots, civil commotion, fire, explosion, flood, epidemics, lock-outs, strikes and action or inaction by a government agency (including any quasi-government agency) which causes a Party to be prevented or delayed in performing its obligations.
1.15 Hosted Platform means the Platform as hosted by Aconex or for Aconex by an authorized sub-contractor of Aconex.
1.16 Implementation Fee means the Fee for Implementation Services.
1.17 Intellectual Property Rights means patents, copyrights, trade secrets, and other proprietary rights recognized in any jurisdiction worldwide, and all applications and registrations therefore.
1.18 Materials means all manuals, data, documents, and information which are prepared, written, made accessible, provided or developed by Aconex or its licensors in connection with the Services, including help and support documentation.
1.19 Monthly Fee means the monthly Fee(s) for Service(s) as specified in the Service Order. If (a) the Fee(s) for any Service(s) are partly or fully payable up front, or (b) the Fee(s) for any Service(s) are partly or fully payable on a periodic basis other than monthly, then in both cases Monthly Fee means the amount calculated by dividing the total Fees by the number of months covered by the Service Order.
1.20 Non-Paying Organisation means any organisation authorised to use the Services by the Paying Organisation where permitted by, and pursuant to, this Agreement, who is not required to pay Aconex for access to the Platform.
1.21 Optional Services means the services specified in Section 3.1(f).
1.22 Party means either Aconex or the Client as the context dictates, and Parties means Aconex and the Client.
1.23 Paying Organisation means the organisation specified as the Client in the Service Order.
1.24 Platform means machine readable object code owned by or licensed to Aconex, together with other Materials to be provided by Aconex pursuant to this Agreement as they exist as of the Effective Date, and Upgrades thereto released during the term of the Agreement, and which is accessed and used by the Client, and regardless of whether the Platform is hosted by Aconex or a third party.
1.25 Price List means the standard price list for the Services as it may be changed from time to time at Aconex's discretion and which is available from Aconex.
1.27 Service Order means the applicable order form for the provision of Services, which may also form a separate agreement between the Client and an Aconex Reseller, relating to the provision of goods and services by Aconex, and as further described at Section 20.2. Service Order also includes a Project Confirmation Sheet, a Corporate Agreement, a Client Agreement, a Variation Agreement (to the extent that the same amends the scope of the original agreement) and any similar document by which the Parties agree the particulars of the Paying Organisation's use of the Platform.
1.28 Services means the services described in Section 3.1 of this Agreement.
1.29 Upgrades means any bug fixes, error corrections, modifications, updates, upgrades and new versions of the Platform that are provided by Aconex generally to its clients at no additional charge. Upgrades excludes new products that are charged for separately by Aconex.
2.1 Commencement of an Engagement. An Engagement commences: (i) for a Paying Organisation upon executing a Service Order for that Engagement and (ii) for a Non-Paying Organisation once Aconex activates a Paying Organisation's active or passive request to add that Non-Paying Organisation. For the purpose of this clause, "passive" means as a consequence of the operation of Platform.
2.2 Expiration of an Engagement. Unless terminated earlier, an Engagement will expire: (i) for a Paying Organisation in accordance with the terms of the Service Order; and (ii) for a Non-Paying Organisation once the corresponding Paying Organisation’s Engagement has expired, the Non-Paying Organisation is no longer associated with the Engagement or 14 days after Aconex receives a Paying Organisation’s request to remove the Non-Paying Organisation. An Engagement is “active” after commencement and prior to expiration or termination.
3.1 Services and Schedule. In consideration for any applicable Fees and the terms and conditions of this Agreement, Aconex will provide such of the following Services as are specified in the Service Order, pursuant to the terms and conditions of this Agreement. Optional Services may be requested from Aconex, will be subject to the payment of Fees and may be subject to a separate Service Order at Aconex's option. Aconex will use reasonable commercial efforts to provide the Services according to any schedule agreed in the Service Order.
3.2 Cancelling a Service. Provided that it has complied with Section 7 at the date of cancellation, the Paying Organisation may cancel an Engagement upon 90 days' written notice to Aconex at any time within the first 90 days of that Engagement.
3.3 Term of License or Service. Aconex will provide each Service in respect of an Engagement for the duration that such Engagement is active, as defined in Section 2.2.
3.4 Client Responsibilities.
4. CLIENT DATA
4.1 Ownership. The Client retains all of its right, title and interest in and to Client Data, and ownership of Client Data is not transferred to Aconex under this Agreement.
4.2 Right to Use. The Client grants Aconex a nonexclusive license, for the term of this Agreement, to use Client Data to accommodate the Client's authorized use of the Platform and Services. Client further grants Aconex a nonexclusive, worldwide, perpetual license to use usage data (such as, by way of example and not by way of limitation, numbers of documents uploaded) in an aggregated form that is not identifiable to any person or organization in order to compile statistics on Platform use and improve the Platform.
4.3 Retention. At the end of the Engagement, Aconex will retain the Client Data applicable to that Engagement without additional charge for a minimum of twelve calendar months from the date the applicable Platform License ends (“Retention Period”). At any time during this Retention Period, the Client may purchase Data Archive services at the Fee specified in the Service Order (or if none the Fee specified in the Price List). Aconex will not be liable for any damages of any kind in connection with a decision not to retain Client Data after the Retention Period.
4.4 Warranty regarding Client Data and Use of the Services. The Client warrants that it has appropriate rights in Client Data and that the Client Data and the Client's use of the Client Data will not violate applicable laws or this Agreement. Aconex is not obligated to screen Client Data, although Aconex reserves the right to screen Client Data and to remove without warning Client Data that it reasonably considers may breach this Agreement. Aconex will notify the Client if Aconex removes Client Data and will repost or return Client Data provided that, in Aconex's reasonable opinion, doing so would not place Aconex at risk of loss or damage. To the extent permitted by law and subject to Section 14.3, Aconex is not liable for any damage or loss caused by Aconex's decision to remove Client Data. The Client is entirely responsible for the content and delivery of Client Data, including without limitation, the accuracy, usefulness, timeliness and completeness of Client Data. The Client is responsible for ensuring Client Data is correctly addressed and on-time and does not represent a breach of any obligations to a third party or of law.
5. LICENSE TO ACCESS CLIENT'S COMPUTER
Aconex support staff operate a piece of software that enables Aconex support staff, if the Client agrees, to view the Client's computer screen and control the Client's computer temporarily in order to provide support or training. Aconex support staff will always ask the Client's permission before doing so. In addition, the Client must enable the Aconex support person's access each time. If the Client so enables access, the Client grants Aconex a temporary license to access and use the Client's computer solely for the purpose of providing the Client with support and training in connection with this Agreement. Any such license is for the term of each support session only.
6. HOSTED PLATFORM SERVICE LEVELS
Aconex provides the following service levels to all Clients for the Hosted Platform. The specified credits are, to the extent permitted by law, the Paying Organisation's sole remedy in respect of any unavailability of the Hosted Platform. A Non-Paying Organisation has no remedy in respect of any unavailability of the Hosted Platform.
Downtime shall be calculated in accordance with the following 2 formulae:
DBH = TDBH — E
DAH = TDAH — E
The following definitions apply to this Section: Downtime: Aconex will test the Hosted Platform to assess uptime every 3 minutes. Downtime begins from the time that the Hosted Platform does not give a valid response to two consecutive tests and continues until the Hosted Platform returns a valid response. TDBH: “total Downtime during Business Hours”; TDAH: “total Downtime After Hours”; E: excusable downtime which is: Downtime of an aggregate total of 30 minutes in any two-week period necessary to conduct regular software and hardware updates to the Hosted Platform, including bug fixes and patches; Downtime which is out of Aconex’s control due to a Force Majeure Event and the first 30 minutes of any emergency; Downtime necessary as a result of a critical security breach. A failure to ensure the Hosted Platform is available is not a breach of this Agreement and entitles the Paying Organisation to the stated credit and, to the extent permitted by law, to no further cause of action or damages of any kind. The credit is a credit of X percent (see table above) of the Paying Organisation’s Monthly Fees for the month previous to the month for which the Paying Organisation is claiming. Aconex will provide this credit as a credit against future Fees. The Paying Organisation must claim any credit by sending notice of the same to Aconex within 10 Business Days of the end of the calendar month in which the Downtime occurred. Aconex is not required to credit claims that are not claimed in writing or not claimed within the time limit.
7.1 Fees. Unless otherwise specified in this Agreement, the Client must pay Fees: (a) in advance, and in accordance with any payment schedule contained in the Service Order; (b) by the means and to the bank account stipulated on the invoice; (c) within 30 calendar days of the issue date on an invoice; and (d) to the party specified in the invoice. If the Client fails to pay any amount payable by it under this Agreement, in addition to any other rights, Aconex will be entitled to charge the Client interest on the overdue amount, payable by the Client immediately on demand, from the due date up to the date of actual payment at a rate equal to 2% above the prevailing base lending rate quoted by the Commonwealth Bank of Australia (or, if less, the maximum amount permitted by applicable law) and such interest shall accrue daily, be calculated weekly and be compounded monthly. With the exception of any outstanding or overdue Fees, periodic Fees will cease to be payable when the Client advises Aconex that the Agreement has expired in accordance with its terms, or this Agreement is terminated whichever is sooner.
7.2 Disputed Invoices. If the Client in good faith disputes the whole or any portion of the amount claimed in an invoice submitted by Aconex, the Client will pay the portion of the amount stated in the invoice which is not in dispute and will notify Aconex in writing by 5:00pm (AEST) on the tenth Business Day following receipt of the invoice of the reasons for disputing the remainder of the invoice. If the Client fails to notify Aconex by the deadline, the Client is deemed to have accepted 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 Client will pay the amount finally resolved.
7.3 Reasonable Use; Change in Engagement Scope; Change in Law. Without prejudice to any other right Aconex may have in the circumstances, if the Paying Organisation, in Aconex's reasonable discretion, uses the Platform in excess of the specification contained in the Paying Organisation's Service Order, or the Engagement scope increases, or there is a change in the law that affects the pricing of the Services, Aconex may charge the Paying Organisation for such price increases using pro rata the Paying Organisation's Fees or, if a pro rata billing model is unreasonable in the circumstances, in accordance with the Price List. On reasonable notice and no more than once annually, the Client will allow an independent third party selected by Aconex and reasonably acceptable to the Client to verify that the Client is using the Platform within the scope of the Engagement, including by providing access to the Client's books and records.
7.4 Taxes. All Fees specified hereunder do not include and are net of any foreign or domestic governmental taxes or charges of any kind that may be applicable to this Agreement, including without limitation excise, sales, use, property, license, value-added taxes, goods and services tax, franchise, income, withholding or similar taxes, customs or other import duties or other taxes, tariffs or duties, other than taxes which are imposed based on the net income of Aconex. Any such taxes which are otherwise imposed on payments to Aconex shall be the sole responsibility of Paying Organisation.
7.5 Currency. All amounts are quoted and to be paid in Australian Dollars.
8. ACCEPTABLE USE OF THE SERVICES
The Client must use the Services in accordance with this Agreement and in accordance with all applicable laws. The Client must not attempt to breach or circumvent Platform security. In addition, the Client must not use the Services in any fashion that would, or assist others to: mislead or deceive; post or transmit information that infringes or violates the rights of a third party, including the rights of privacy and publicity; cause or knowingly facilitate the spread of a virus, worm, Trojan horse, or another harmful object; post or transmit unsolicited messages, junk mail, spam or chain letters or material that might be considered offensive; collect or store personal data without permission; promote in any way illegal or unwelcome or unsociable activities; attempt to breach or circumvent Platform security; assist Aconex competitors; or undertake promotions or undertake commercial activity not connected with the business purposes the Services are intended to support. In order to provide the Services effectively and in accordance with applicable law and this Agreement, Aconex may monitor and record the Client's use of the Services and the Client authorizes Aconex to collect, store and use all such information provided Aconex complies with Section 10.
10.2 Transfer of Client PII. Due to the global nature of its business, Aconex may for these purposes transfer Client PII to any country in which an Aconex Affiliate operates. The Client agrees to such transfer in its own right and on behalf of those from which it collects Client Data.
11. USER COMMUNICATIONS
Aconex reserves the right to communicate with users regarding matters relating to system usage, administration and support.
12. INTELLECTUAL PROPERTY RIGHTS
12.1 Platform and Services. The Client acknowledges and agrees that Aconex and its licensors own all right, title and interest in and to the Services and the Platform, including all Intellectual Property Rights therein and thereto, including any materials or software that may be developed by Aconex in the performance of the Services. No transfer of any Intellectual Property Rights occurs pursuant to this Agreement. This Agreement is not a sale and does not convey to Client any rights of ownership in or related to the Platform or the Services, or any Intellectual Property Rights therein.
12.2 Feedback. Notwithstanding anything to the contrary in this Agreement, Aconex has and retains the exclusive right to own, use and disclose, in the course of its business, all feedback provided by Client with respect to the Services and Platform.
13. SUSPENSION FOR BREACH
Without affecting any other rights and obligations in this Agreement or at law or equity (including a right of termination and a right to claim damages), Aconex may suspend the Platform License and delivery of any or all of the Services if the Client commits a breach of this Agreement and does not remedy that breach within seven days (and in the case of a breach of Section 7, Aconex may furthermore require all Fees to be payable in advance). Any reversal of the suspension will be subject to the reconnection fee specified in the Price List.
14. LIMITED WARRANTY AND DISCLAIMERS
14.1 Limited Warranty. Aconex warrants to Client that Aconex will use reasonable professional skill and care in providing all Services. Aconex's sole liability and the Client's sole remedy for any failure to so perform the Services will be for Aconex to re-perform such Services.
14.2 Disclaimers. CLIENT ASSUMES ALL RESPONSIBILITIES FOR SELECTION OF THE PLATFORM TO ACHIEVE THE CLIENT'S INTENDED RESULTS, FOR THE USE OF, AND RESULTS OBTAINED FROM, THE PLATFORM, AND FOR TAKING APPROPRIATE MEASURES TO PREVENT LOSS OF DATA. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 14.1 ABOVE AND SUBJECT TO THE TERMS OF SECTION 14.3, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ACONEX DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. ACONEX SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, QUALITY AND FITNESS FOR A PARTICULAR PURPOSE. ACONEX DOES NOT WARRANT THAT THE PLATFORM WILL BE ERROR-FREE OR THAT THE PLATFORM WILL WORK WITHOUT INTERRUPTIONS. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
14.3 Certain legislation, including the Trade Practices Act 1974 (Cth), may imply warranties or conditions or impose obligations on Aconex which cannot be excluded, restricted or modified or cannot be excluded, restricted or modified except to a limited extent. This Agreement must be read subject to these statutory provisions. If these statutory provisions apply, to the extent to which Aconex is entitled to do so, Aconex limits it liability in respect of any claim under those provisions to, in the case of services, the supplying of the services again.
15. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW AND SUBJECT TO SECTION 14.3, ACONEX WILL NOT BE LIABLE FOR ANY SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT, CONSEQUENTIAL LOSS, OR DAMAGES, LOSS OF PROFIT, INTEREST, REVENUE, BUSINESS, GOODWILL, SAVINGS OR ANTICIPATED PROFIT OR ANY LOSS OF OR DAMAGE TO ANY CLIENT DATA, OR LOSS OF OR INTERRUPTION TO THE CLIENT'S BUSINESS, IN EACH CASE ARISING OUT OF OR IN ANY WAY CONNECTED TO THE PROVISION OF THE PLATFORM OR THE SERVICES INCLUDING, WITHOUT LIMITATION, LOSS OR DAMAGE CAUSED BY A COMPUTER VIRUS OR OTHER MALWARE, AND IN EACH CASE REGARDLESS OF WHETHER ACONEX WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
TO THE MAXIMUM EXTENT PERMITTED BY LAW AND SUBJECT TO SECTION 14.3, REGARDLESS OF WHETHER A CLAIM ARISES IN CONTRACT, TORT (INCLUDING IN NEGLIGENCE) OR OTHERWISE, UNDER NO CIRCUMSTANCES WILL ACONEX'S (INCLUDING ITS OFFICERS, EMPLOYEES, CONTRACTORS, AFFILIATES AND AGENTS): (A) LIABILITY IN ANY MONTH BE GREATER THAN 100% OF THE MONTHLY FEE FOR THAT MONTH (FOR PAYING ORGANISATIONS) AND $2,000 (FOR NON-PAYING ORGANISATIONS); AND (B) ACONEX'S AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT EXCEED THE SUM OF 100% OF THE TOTAL FEES PAID TO THE DATE THE CLAIM AROSE (FOR PAYING ORGANISATIONS) OR $10,000 (FOR NON-PAYING ORGANISATIONS).
The Client and Aconex agree that the disclaimer, exclusions and limitations in this Agreement are fair and reasonable given the amount of Fees paid by the Paying Organisation and the number of Clients receiving the Services. The Fees charged for the Services are calculated on the basis of the validity of the indemnities, limitations and exclusions in this Agreement. Increased liability on the part of Aconex would result in higher Fees. YOU ACKNOWLEDGE THAT THE FEES REFLECT THIS ALLOCATION OF RISK AND THAT THE DISCLAIMER, EXCLUSIONS AND LIMITATIONS ARE ESSENTIAL ELEMENTS OF THIS AGREEMENT.
16.1 Aconex Indemnity.
16.2 Client Indemnity. The Client shall defend or at its option settle any third party claim, action or proceeding brought against Aconex, any Aconex Affiliate or any Aconex Related Entity alleging that (a) the Client has breached any law or regulation in the use of the Platform or the Client Data, or (b) the Client has misused any Client Data or infringed any third party Intellectual Property Rights in the use of the Client Data, and Client shall pay any final judgments awarded or settlements entered into; provided that Aconex provides Client with: (i) prompt written notice of such claim; (ii) sole control over the defence and settlement of such claim; and (iii) all necessary information and assistance (at the Client's expense) to defend and/or settle such claim. Aconex may participate in the defence of a claim asserted hereunder after the Client has assumed the defence or settlement, provided that Aconex shall bear any legal fees and expenses or other costs it incurs in so participating. Client shall not be liable for any costs or expenses incurred by Aconex by acting without the Client's prior written authorization. Client may not settle or compromise any claim under this Section 16.2 that requires Aconex to admit liability or pay any money without Aconex's prior written consent, which consent shall not be unreasonably withheld or delayed.
This Agreement is effective from the Effective Date and continues until the date the Client is deregistered from the Platform, unless terminated earlier. A Client with no active Engagements will be deregistered: (a) within 10 Business Days of sending a written request to email@example.com, or (b) at Aconex's discretion.
18.1 Termination for Breach. Either Party may terminate this Agreement in the event that the other party commits a material breach of this Agreement and where such breach is capable of remedy, fails to remedy the breach within 30 days of receiving written notice from the other Party. Aconex may terminate this Agreement where the Client's access has been suspended under Section 13 and the Client has not taken the necessary action to restore access within a further 23 days. A failure to make payment by the due date of an amount greater than 10% of Fees (whether singly or in aggregate) constitutes a material breach.
18.2 Termination for Insolvency. Aconex may terminate this Agreement immediately by notice in writing if: (a) the Client is unable to pay its debts as and when they become due or becomes, threatens or resolves to become or is in jeopardy of becoming insolvent or subject to an order, proceedings or resolution for liquidation or dissolution (unless for the purposes of amalgamation or reconstruction,) or entering into a compromise or arrangement with, or assignment for the benefit of any of its members or creditors, or an administrator is appointed to the Client, a resolution that an administrator be appointed to it is passed or proposed, or any other steps are taken to appoint an administrator to the Client or the Client is wound up or liquidated, voluntarily or otherwise other than for the purpose of amalgamation or reconstruction whilst solvent or any event occurs having a substantially similar effect to any of the preceding events; (b) the Client, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving; (c) the Client, being a natural person, dies; or (d) there is a change of control of Client.
18.3 Payment in the Event of Termination. In the event that (a) Aconex terminates this Agreement pursuant to this Section 18 or (b) the Client indicates it is unwilling or unable to continue to perform its obligations, (each a “Termination Event”), without prejudice to Aconex's rights and remedies hereunder, the Client will immediately be required to pay Aconex 75% of all Fees uninvoiced as at the date of the Termination Event.
18.4 Effect of Termination. The Client must cease to use the Platform and the Services upon termination. On termination of this Agreement, the Client immediately loses all rights to use or possess the Platform and must return any Materials to Aconex or comply with all directions of Aconex for the destruction or return of the Materials and, at Aconex's request, the Client must procure that an authorized representative of the Client, certifies that the Materials has been returned or destroyed. The Client must pay any and all amounts outstanding promptly following termination.
18.5 Survival. Sections 3, 4, 8, 9, 10, 11, 12, 14, 15, 16, 18.4, 19, 20 and 21 shall survive termination.
19. GOVERNING LAW AND DISPUTE RESOLUTION
19.1 Governing Law And Jurisdiction. This Agreement is governed by the laws of the state of Victoria, Australia and the Client submits to the non-exclusive jurisdiction of that state and waives any right it might have to claim that those courts are an inconvenient forum.
19.2 Dispute Resolution.
19.3 Injunctive Relief. Notwithstanding the foregoing, if either Party breaches, or threatens to breach the provisions of this Agreement concerning confidentiality or Intellectual Property Rights, each Party agrees that the non breaching Party will have no adequate remedy at law and is therefore entitled to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual money damages, in any court having jurisdiction.
20.1 Force Majeure. With the exception of any payment obligations, neither Party will be liable for any delay or failure to perform its obligations pursuant to this Agreement to the extent such delay is due to a Force Majeure Event. With the exception of payment obligations, to the extent a delay or failure of a Party to perform its obligations is caused or anticipated due to a Force Majeure Event, the performance of that Party's obligations will be suspended and neither Party will be liable to the other Party for a failure to perform its obligations as a result of a Force Majeure Event. If a delay or failure by a Party to perform its obligations due to a Force Majeure Event exceeds 3 calendar months, either Party may immediately terminate the Agreement without cause on providing notice in writing to the other Party.
20.2 Entire Agreement.
20.3 No Reliance on Representations. The Client warrants that it has not relied on any representation, undertaking, statement or understanding which has not been stated expressly in this Agreement or upon any descriptions, illustrations or specifications contained in any document including catalogues or publicity material produced by Aconex.
20.4 Independent Contractor. Aconex is not a party to any transactions Clients enter into with one another using the Platform. Under this Agreement, Aconex and its personnel will never be the employee, agent or partner of a Client, and is not engaged in a joint venture with a Client. Clients agree to waive to the maximum extent possible any and all rights they may have against Aconex arising out of any transaction or dealings they conduct with another Client or third party through the Platform.
20.5 Subcontracting And Assignment.
20.6 Waiver. A right may only be waived in writing, signed by the Party giving the waiver, and: no other conduct of a Party (including a failure to exercise, or delay in exercising, the right) operates as a waiver of the right or otherwise prevents the exercise of the right; a waiver of a right on one or more occasions does not operate as a waiver of that right if it arises again; and the exercise of a right does not prevent any further exercise of that right or of any other right.
20.7 Modification. The provisions of this Agreement will not be varied, except by express written agreement and by making explicit reference to this Agreement. Aconex reserves the right to modify the terms and conditions of this Agreement at any time, and such modifications shall apply to Service Orders executed after the effective date of the change. Aconex will notify Client of such modification, either via email, via the Platform, or in a manner deemed commercially reasonable by Aconex. Client is responsible for regularly reviewing this Agreement.
20.8 Severability. If any provision or part provision of this Agreement is held invalid, unenforceable or illegal by any court or tribunal for any reason, the Agreement will remain otherwise in full force apart from such provisions or part provisions which will be deemed deleted or modified to the minimum extent necessary to remove the invalidity, unenforceability or illegality.
20.9 Client Reference. Aconex may not issue any press release regarding the Client's use of the Platform without the prior written consent of the Client (not to be unreasonably withheld, delayed or conditioned). However, Aconex may use the Client's name and logo and refer to the fact that the Client is a client of Aconex in its annual report, list of references or presentations to actual or potential clients without the Client's consent.
20.10 United States Export Controls. The Service (including the Platform) uses software and technology that may be subject to United States export controls. Client agree that Client will not, directly or indirectly, export or re-export, or knowingly permit the export or re-export of, the Services (including the Platform) or any technical information about the Services (including the Platform) to any country for which such export or re-export is restricted by any applicable U.S. regulation or statue, without the prior written consent, if required, of the government entity that has jurisdiction over such export or re-export. Aconex and its licensors make no representation that the Service (including the Platform) is appropriate or available for use in other locations. If Client uses the Service (including the Platform) from outside of the U.S., Client is solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. A failure to comply with this Section will be regarded as a material breach incapable of remedy.
20.11 No Third Party Beneficiaries. No provisions of this Agreement are intended or shall be construed to confer upon or give to any person or entity any rights, remedies or other benefits as a third party beneficiary. Without limiting the generality of the foregoing, Non-Paying Organisations may not enforce the rights granted to Paying Organisations and vice versa under any circumstances.
20.12 Language Of Agreement. This Agreement has been written in the English language and, in the event of any conflict between the English-language version and any translation of this Agreement, the English-language version will prevail.
21.1 Method of Communication. A notice, consent or other communication under this Agreement is only effective if it is: (a) in writing, sent by or on behalf of and at the express instruction of the person giving it; (b) addressed in accordance with Section 21.3 to the person to whom it is to be given; and (c) either: (i) delivered or sent by pre paid mail (by airmail, if the addressee is overseas); or (ii) sent by fax and the machine from which it is sent produces a report that states that it was sent in full and the recipient does not alert the sender to the fact that fax was not received in a legible form by the close of business the next Business Day; or (iii) sent via the Platform (providing the Platform account of the person it was sent to is recorded by the Platform as active at the time of receipt).
21.2 Deemed Delivery. A notice, consent or other communication that complies with this Section is deemed given and received: (a) if it is delivered or sent by fax: (i) by 5 pm (local time in the place of receipt) on a Business Day – on that day; or (ii) after 5 pm (local time in the place of receipt) on a Business Day, or on a day that is not a Business Day – on the next Business Day; (b) if it is sent by mail: (i) within the United States – four Business Days after posting; or (ii) to or from a place outside of the United States – seven Business Days after posting; and (iii) if it is sent via the Platform – by 5 pm the next Business Day (local time in the place of receipt).
21.3 Addresses. The Client’s representative and postal and email address and fax number will be as specified in the Service Order or otherwise in writing to Aconex or, if not specified the Client’s representative will be the organization administrator as recorded in the Client’s account on the Platform, and the Clients’ contact details will be the contact details recorded in the Client’s Account on the Platform. Aconex’s representative for notice will be “General Counsel” and the addresses are: for notice sent via the Platform – “Mr Aconex Legal” (as it appears in the Platform directory); the fax number or postal address for the Aconex office in Melbourne, Australia as specified on the Aconex website (currently found at www.aconex.com).