Important: This NEON Platform is owned by CloudWave Pty Ltd ACN 162 198 790 (referred to as we, us, our). Please carefully read the terms and conditions of this End User License Agreement before clicking on the “Accept” button or proceeding to use the NEON Platform. By clicking on the “Accept” button, you, on behalf of the company or institution set forth on the Order Form (“Order Form”) of which this End User License Agreement is a part (referred to as Customer, you, your), are agreeing to the terms and conditions of this End User License Agreement (EULA) and the Order Form (collectively referred to as the “Agreement”). You represent and warrant that you are at least eighteen (18) years of age and that you have full authority and capacity to bind the Customer to these terms. If you do not wish to accept the terms of this Agreement, please do not proceed with using the NEON Platform.

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1.    Definitions

In this Agreement the following words and phrases shall have the following meanings, unless the context otherwise requires:

“AWS Connect Account” means an AWS account that allows you to directly access your NEON Platform instance, on a subscription basis, in accordance with the terms of this EULA;

“AWS” means Amazon Web Services, Inc. which is a Third Party that provides the hosting infrastructure pursuant to the AWS Terms;
“AWS Marketplace” means Amazon Web Services digital solutions market place;

"AWS Marketplace Subscription” means the agreement between AWS and the Customer for the procurement of the NEON Platform via the AWS Marketplace;

“AWS Terms” means AWS’ terms located at https://s3.amazonaws.com/Reseller-Program-Legal- Documents/AWS+Reseller+Customer+License+Terms.pdf;

"Client Customer Data” data you input into the NEON Platform;

“CloudWave” means CloudWave Pty Ltd ACN 162 198 790 the owner and provider of the NEON Platform;

"CloudWave Account” means an account with CloudWave that enables you to access the Neon Platform;

“Effective Date” means the date that the Customer accepts the Agreement;

“Intellectual Property Rights” means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trademarks, designs, patents, circuit layouts, software, business and domain names, inventions and other results of intellectual activity related to or connected with the NEON Platform;

“Loss” means any loss, liability, cost, charge, expense, tax, duty or damage of any nature whatsoever, including special, incidental, or consequential damages, losses or expenses (howsoever arising or caused, including, without limitation, negligence);

"Managed Service(s)” means a service provided by CloudWave and may include: (i) the hosted infrastructure through AWS; (ii) the NEON Platform; and (iii) services on behalf of the Customer, which includes, but are not limited to the provision, installation, management, monitoring, backup, security and support of the hosted infrastructure in AWS;

“NEON Platform” or “Software as a Service” means CloudWave’s intellectual property software that is hosted in the cloud that may incorporate certain Third-Party components and services (as applicable),
 
and is either: (i) hosted by AWS and is directly managed by the Customer through an AWS Connect Account; or (ii) is managed by CloudWave as a Managed Service;

“Order Form” means an ordering document between the parties and could include a customer online subscription form.

“Service” means any ancillary services provided by CloudWave which is entered into pursuant to a separate ordering document (such as a Statement of Work) between you and CloudWave;

“Term” means, collectively, the Initial Term and Renewal Term specified in the Order Form, during which you can access and use the NEON Platform in accordance with this EULA;

“Third Party or “Third Parties” means a third-party provider of a component of the NEON Platform;

“Third Party Terms” means (if applicable) the Third Party’s end user license terms as further provided for in clause 8 below;

2.    Interpretation

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In this Agreement the following rules of interpretation apply, unless the contrary intention appears or context otherwise requires:

(a)    Headings and subheadings are for convenience only and do not affect the interpretation of this Agreement.

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(b)    Words denoting the singular include the plural and words denoting the plural include the singular.

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(i)    The word ‘person’ includes any individual, corporation or other body corporate, partnership, joint venture, trust, association and any Government Agency.

(ii)    A reference to a body (other than a party to this Agreement), whether statutory or not, that ceases to exist or has its powers or functions transferred to another body is a reference to the body that replaces it or that substantially succeeds to its powers or functions.

(iii)    No provision of this Agreement will be construed adversely to a party because that party was responsible for the preparation of that provision or this Agreement.

(iv)    Specifying anything in this Agreement after the terms ‘include’, ‘including’, ‘includes’, ‘for example’, ‘such as’ or any similar expression does not limit the sense of the words, description, definition, phrase or term preceding those terms unless there is express wording to the contrary.

(v)    A reference to writing or written includes email.

(vi)    Where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.

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3.    NEON Platform System and Access

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(a)    The NEON Platform includes the provision of:

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(i)    the hosted facility at AWS locations;
(ii)    the hosted infrastructure, which includes, but is not limited to, servers, storage, compute and networking;

(iii)    CloudWave’s proprietary software deployed on the system in a CloudWave- managed cloud environment; and

(iv)    Where you have elected for Managed Services, the managed services, which include, but are not limited to the provision, installation, management, monitoring, backup, security and support of the AWS hosted environment.

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(b)    From the Effective Date, CloudWave grants you, subject to the terms of this EULA, a limited, non-exclusive, non-assignable, non-sublicensable and non-transferable license during the Term to use the NEON Platform for internal business or as otherwise specified in the Order Form . Unless otherwise agreed by the parties in writing, you:

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(i)    acknowledge and agree:

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A.    that you will not, as a result of being granted a non-exclusive licence, acquire any rights (including without limitation Intellectual Property Rights) in the NEON Platform other than the limited rights granted to you in accordance with this Agreement.

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B.    That in order to use this NEON Platform, you require the equipment and connections necessary to access the internet. Without limitation, you are responsible for:

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I.    the provision of any such connection or access to the internet;

II.    the payment of any fees associated with such connection or access (such as those charged by an internet service provider or other online service); and

III.    the provision of all equipment necessary for you to make any such connection to the internet, including a computer and a modem.

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(c)    If the Order Form does not specify fees for the installation of new software releases, data migration, configuration, or customization services, Customer may purchase Services at an additional fee for these tasks.

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4.    Term

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(a)    The Initial Term goes for the period of time specified in the Order Form (Initial Term);

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(b)    At the expiration of the Initial Term, the licence may be renewed at the mutual agreement of the parties, such renewal to be accomplished by CloudWave sending an invoice or change request to Customer reflecting the licence renewal period, licence renewal fees and applicable taxes and Customer paying the invoice. Customer’s payment of each licence renewal invoice shall constitute renewal of the licence for the applicable NEON Platform for the licence renewal period specified on the invoice subject to the terms and conditions of this Agreement (each a Renewal Term).

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Collectively, the Term.

5.    Account
 
(a)    In order to use the NEON Platform you will need to create a CloudWave Account. In creating and using your CloudWave Account:

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(i)    you must not use false or misleading information and you must update your details should they have changed from the last time you used the NEON Platform. We are not responsible for any Loss (including misdirected notifications) which may occur because you have not provided us with up to date, accurate or complete information;

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(ii)    you may be required to choose a username and password. You are responsible for the security of your login information and we will assume that anyone using your CloudWave Account is authorised to do so by you and you are responsible for their actions. Under no circumstances will unauthorised access and use of your CloudWave Account reduce your liability to us;

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(iii)    you must notify us immediately if you become aware of any unauthorised use of your CloudWave Account or other security breach;

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(iv)    Unless otherwise specified in the Order Form, only the Customer’s employees and contractors who are located in the agreed country (“Territory”) and who are performing work solely for the benefit of Customer’s operations in the Territory (collectively, “End Users”) may access and use the NEON Platform. NEON Platform usage shall be limited to the licence scope restrictions set forth in this EULA and additional scope restrictions and pricing metrics, if any, described in the Order Form. Except to the extent allowed by law, Customer may not use the NEON Platform or allow any other person or entity to use the NEON Platform: (a) for the purpose of bringing an intellectual property infringement claim against CloudWave;
 

(b)    for the purpose of creating a commercial offering or product directly or indirectly competing with an offering or product from CloudWave; or (c) for the benefit of any person or entity where such use may result in the creation of a commercial offering or product directly or indirectly competing with an offering or product from CloudWave.

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(v)   Title to the NEON Platform remains with CloudWave and its Third Party licensors at all times. Copyright notices and other proprietary rights notices in the NEON Platform shall not be deleted or modified. This EULA does not transfer any ownership rights.

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(b)    AWS: where you elect to manage the hosting environment for your NEON Platform service, you may access and use AWS’s services in accordance with AWS’ Terms, by first creating an AWS Connect Account via the AWS portal.

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(i)    CloudWave may provide you with account keys which will allow you to access the NEON Platform via your AWS Connect Account. You are responsible for all activities that occur under these accounts, regardless of whether the activities are undertaken by you, your employees or a third party (including your contractors or agents) and we are not responsible for unauthorized access to these accounts.

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(ii)    AWS Service Level Agreements do not apply to your use of AWS’ services. You will adhere to all laws, rules, and regulations applicable to your use of the Services, including any Service Terms, the Acceptable Use Policy and the other Policies communicated to you by AWS.

 
(c)    Customer is responsible for: (a) the security of access credentials; and (b) any virus Customer introduces into the NEON Platform through the Client Customer Data or otherwise.

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6.    Fees, Invoicing, Payment

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(a)    Fees. the fees that payable by you include the Amazon Web Services Marketplace Subscription; and / or the fees specified in an Order Form for the Term. Initial fees and any non-standard usage rights are listed on the Order Form. Renewal fees shall be listed on invoices or other ordering document (such as a change order) and may vary for each Term. Prior to any Renewal Term, CloudWave may propose pricing changes that will apply to the Renewal Term. Any applicable Services fees are based on the Services description set forth in the Order Form or another ordering document. Unless otherwise provided in the Order Form, travel and living expenses incurred by CloudWave in its performance of Services are additional.

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(b)    Invoices.

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(i)    Where you have a Managed Service, CloudWave will invoice the Customer for any fees due: (a) upon Customer’s acceptance of this Agreement and (b) prior to each applicable Renewal Term. Payment terms for all invoices are net thirty (30) days from the invoice date. Unless otherwise stated in the Order Form, NEON Platform and Services fees do not include applicable taxes. CloudWave will use reasonable efforts to include all taxes applicable to Customer on the relevant invoice and Customer agrees to pay such taxes to CloudWave.

(ii)    Where you have an AWS Connect Account, AWS will invoice you directly for the AWS Connect Account and the AWS Marketplace Subscription.

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(c)    All amounts paid to us under or in connection with this Agreement or any invoice issued by us are non-refundable to the extent permitted by law, including without limitation in the event of termination of this Agreement or any other arrangement by you for convenience.

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(d)    In the event that you make an overpayment to us, that overpayment can be utilised towards future services that you obtain from us.

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7.    System Integrity & User Conduct

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(a)    You must not use the NEON Platform to:

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(i)    impersonate or otherwise misrepresent your identity or affiliation with any other person or entity;

(ii)    input, upload, post, disclose or transmit any material that is defamatory, obscene, indecent, lewd, violent, abusive, insulting, threatening, harassing, fraudulent or misleading or deceptive;

(iii)    input, upload, post, disclose or transmit any material which is subject to Intellectual Property Rights of CloudWave or any third party or breaches any duty of confidence or contractual obligation owed to CloudWave or any third party;

(iv)    input, upload, post, disclose or transmit any material that is unlawful, dangerous or violates any law;
 
(v)    send junk, obscene, indecent, offensive or threatening electronic mail or electronic mail in contravention of the Spam Act 2003 (Cth) to any person or company;

(vi)    download and store electronically, reproduce, transmit, display, copy, distribute or use the NEON Platform or any materials contained in the NEON Platform;

(vii)    upload any files that contain viruses, Trojan horses, worms, time bombs, corrupted files or any other similar software or programs that may damage the operation of the NEON Platform or another’s computer or property of another;

(viii)    sub-license, rent, lease, transfer or attempt to assign the rights in the NEON Platform to any other person and any dealing in contravention of this sub-clause shall be ineffective;

(ix)    falsify or delete any attributions, legends, or other proprietary designations of origin or source of any content of the NEON Platform;

(x)    conduct, display, or forward surveys, contests, pyramid schemes, or chain letters;

(xi)    interfere with or disrupt the NEON Platform or servers or networks connected to the NEON Platform, or disobey any requirements, procedures, policies, or regulations of networks connected to the NEON Platform;

(xii)    attempt to gain unauthorised access to the NEON Platform or computer systems or networks connected to the NEON Platform through any means;

(xiii)    commit forgery (or attempted forgery), harass any individual, or harm minors in any way;

(xiv)    collect, store, input, upload, post, disclose or transmit personal information or data about others, including, without limitation email addresses;

(xv)    contravene or breach any applicable state, Commonwealth or international law, convention or regulation.

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(b)    You acknowledge and agree that you must not:

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(i)        use the NEON Platform for any purpose other than the purpose for which it was designed and intended;

(ii)    commit or permit any act which may interfere with the use of the NEON Platform by any other user;

(iii)    infringe any third party’s rights or violate any applicable laws;

(iv)    create liability for CloudWave;

(v)    damage the credibility or integrity of the NEON Platform or CloudWave;

(vi)    copy, store or otherwise access any information contained in the NEON Platform for purposes not expressly permitted in this Agreement;

(vii)    tamper with, hinder the operation of or make unauthorised modifications to the NEON Platform or any part thereof;
 
(viii)    damage or modify the NEON Platform or any part thereof;

(ix)    reverse engineer, decompile, disassemble or otherwise attempt to read the source code of the NEON Platform or any part thereof;

(x)    copy, republish, frame, download, transmit, rent, lease, loan, sell, distribute, licence or sublicense the NEON Platform or any content or any part thereof; or

(xi)    modify, alter, adapt or amend the NEON Platform or any content or any part thereof in any way.

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(c)    Warranties

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(i)    The NEON Platform is provided to you “AS IS” and “AS AVAILABLE”. Subject to any express warranties under the Competition and Consumer Act 2010 (Cth), CloudWave provides no warranty or undertaking, and makes no representation of any kind that the NEON Platform will meet your requirements, achieve any intended results, be compatible or work with any other software, applications, systems or services, operate without interruption, meet any performance or reliability standards or be error free or that any errors or defects can or will be corrected.

(ii)    Without limiting the foregoing, neither CloudWave nor any Third Parties makes any representation or warranty of any kind, express or implied: (i) as to the operation or availability of the NEON Platform, or the information, content, and materials or products included thereon; (ii) that the NEON Platform will be uninterrupted or error-free or that CloudWave will correct any errors; (iii) as to the accuracy, reliability, or currency of any information or content provided through the NEON Platform; or (iv) that the NEON Platform, its servers, the content, or e-mails sent from or on behalf of CloudWave are free of viruses, scripts, trojan horses, worms, malware, timebombs or other harmful components. You acknowledge that CloudWave does not control the transfer of data over communications facilities, including the internet and that the service may be subject to limitations, delays and other problems inherent in the use of such communications facilities and NEON Platform is not responsible for any delays, delivery failures or other damage resulting from such problems.

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(d)    Functionality:

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(i)    CloudWave may from time to time provide enhancements or improvements to the features/functionality of the NEON Platform, which may include patches, bug fixes, updates, upgrades and other modifications (“Updates”).

(ii)    Updates may modify certain features and/or functionality of the NEON Platform. You agree that CloudWave has no obligation to provide any Updates.

(iii)    Updates may delete functionality of the NEON Platform. 6 months’ notice will be provided prior to any such deletion.

(iv)    You further agree that all Updates will be (i) deemed to constitute an integral part of the NEON Platform, and (ii) subject to the terms and conditions of this Agreement.

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(e)    Critical Applications:
 
(i)    The NEON Platform is not fault-tolerant and is not designed or intended for any use in any environment that requires fail-safe performance in which the failure of the NEON Platform could lead to death, personal injury or significant property damage (“Critical Applications”). Such environments include, among others, control systems in a nuclear, chemical, biological or other hazardous facility, aircraft navigation and communications, air traffic control, and life support systems in a healthcare facility. You assume full risk for its use of the NEON Platform in any such Critical Applications.

(ii)    you acknowledge that the NEON Platform may contain programming that: (i) restricts, limits and/or disables access to certain features, functionality or capacity of such NEON Platform subject to being subscribed to such features, functionality or capacity; or (ii) periodically deletes or archives data generated by use of the NEON Platform and stored on the applicable storage device if not backed up on an alternative storage medium after a certain period of time.

 

8.    Third Parties

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(a)    Except for as already specified in this Agreement, we may engage Third Party vendors in the future to license, supply or maintain components to CloudWave which are contained within or used from the NEON Platform. By using the NEON Platform, you agree to be bound by and adhere to those Third Party Terms. Where you breach any of those Third Party Terms, it will constitute a breach of this Agreement. Third-Party Services and links thereto are provided solely as a convenience to you and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.

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(b)    Unless explicitly specified in the Order Form or this Agreement, CloudWave exercises no control over the flow of information to or from the NEON Platform, network, or other portions of the internet. Such flow depends in large part on the performance of internet services provided or controlled by third parties. At times, actions or inactions of such Third Parties can impair or disrupt connections to the NEON Platform. CloudWave will use commercially reasonable efforts to take all actions it deems appropriate to avoid or remedy such events, but CloudWave cannot guarantee that such events will not occur.

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(c)    Amazon Web Services (AWS):

(i)    You acknowledge and agree that the following AWS Terms apply to your use of the NEON Platform and any content and programs made available on the NEON Platform, and you agree to be bound by the most current version of the AWS Terms. AWS reserves the right to amend its terms.

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9.    Intellectual Property Rights

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(a)    The information, names, text materials, graphics, logos, button icons, images, video and audio clips, trademarks (whether registered or not), advertisements, layout, arrangement, graphical user interface, look and feel, and control features of the NEON Platform (Content) is protected by Intellectual Property Rights.

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(b)    The Content, the NEON Platform, and any software documentation are protected by Intellectual Property Rights. You acknowledge that either CloudWave or other Third Parties
/ affiliates are the owner of these rights (as applicable).
 
(c)    All Services and company names and logos contained within the NEON Platform are the trademarks, service marks or trading names of their respective owners, including CloudWave or the Third Parties.

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(d)    You acknowledge and agree that no right, title or interest in any of the Intellectual Property Rights in the Content, Third Party software documentation, or the NEON Platform is transferred or granted to you, other than the rights granted expressly by this Agreement.

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(e)    You agree that:

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(i)    any Intellectual Property Rights created, formulated or discovered by you through the use or access to the NEON Platform will be the sole and exclusive property of CloudWave or its Third Parties;

(ii)    you will promptly sign all documents and do all things necessary to register, vest or transfer any interest or ownership in the Intellectual Property Rights created under to us or our Third Parties.

(f)    You warrant that any Client Customer Data will not:

(i)    breach the provisions of any law, statute or regulation;

(ii)    infringe the Intellectual Property Rights or other legal rights of any person; or

(iii)    give rise to any cause of action against us,

in each case in any jurisdiction and under any applicable law.

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10.    Information Provided and Privacy

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(a)    Protection of Personal Data

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The use of the NEON Platform may require the processing of personal data pertaining to you and/or to your personnel. Personal data required to use the NEON Platform will need to be submitted to CloudWave and may need to be submitted to CloudWave’s suppliers or Third Parties (as the case may be). If such data is not submitted, the End User will not be able to use the NEON Platform. Personal data received by CloudWave will be handled in accordance with CloudWave’s Privacy Policy or a Data Processing Addendum (as the case may be). You or your personnel have a right to access and correct erroneous personal data pertaining to you or your personnel and to object for legitimate reasons to the processing and transfer of such data. You can exercise this right by contacting the Privacy Officer of CloudWave.

(b)    Privacy Policy

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CloudWave collects, stores, maintains, and shares information about you in accordance with its Privacy Policy, which is available at https://www.cloudwave.com.au/privacy. By accepting this Agreement, you acknowledge that you hereby agree and consent to the terms and conditions of our Privacy Policy and / or Data Processing Addendum.
The Client Customer Data will be used in accordance with this Agreement, our Privacy Policy and the AWS Terms.

(c)    CloudWave Obligations. Upon expiration or termination of the Order Form, CloudWave will delete or render inaccessible all Client Customer Data in the NEON Platform within thirty (30) days, unless the Order Form specifies different retention practices required for
 
compliance with applicable law. CloudWave may: (a) retain one copy of the Client Customer Data as necessary to comply with legal, audit or internal CloudWave requirements; and (b) defer the above activities to the extent and for the duration that CloudWave cannot reasonably and practically expunge Client Customer Data from the NEON Platform.

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(d)    Sensitive Information. Unless authorized by CloudWave in the Order Form, Customer will not use Sensitive Information in the NEON Platform or transmit Sensitive Information to CloudWave. If Customer uses or transmits any Sensitive Information in the NEON Platform in violation of this section, Customer will reimburse CloudWave for any costs associated with its removal.

 

11.    Warranties

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(a)    CloudWave does not warrant that:

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(i)    the NEON Platform will provide any function for which it is not specifically designed;

(ii)    the NEON Platform will provide any minimum level of performance;

(iii)    the NEON Platform will be virus free or free of performance anomalies or be operational without interruption.

(b)    You warrant to us that at the time of entering the NEON Platform, you were not relying on any representation made by us.

(c)    Except as expressly provided to the contrary, and to the extent permitted by law, we make no representations or warranties of any kind, express or implied as to the operation of your access to or the results of your access to the NEON Platform (including any related or linked websites) or the correctness, accuracy, timeliness, or completeness or reliability of the information, content, materials or Services included on the NEON Platform.

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12.    Exclusion and Limitation of Liability

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(a)    CloudWave provides the NEON Platform on an “as is” basis and without any warranties, representations, or conditions of any kind, whether express, implied or statutory, to the extent permitted by law. Subject to the other terms of this clause 13, CloudWave excludes all rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms in relation to the NEON Platform that are not expressly set out in this Agreement to the maximum extent permitted by law.

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(b)    Subject to the other terms of this clause 13, CloudWave’s maximum aggregate liability to you for any Loss or damage or injury arising out of or in connection with this Agreement, including any breach by CloudWave of this Agreement however arising, under any indemnity, in tort (including negligence), under any statute, custom, law or on any other basis, is limited to the actual charges paid by you to CloudWave under this Agreement in the six (6) month period preceding the matter or event giving rise to the claim.

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(c)    Nothing in this Agreement 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 ACL or any other Laws that apply to the provision of the NEON Platform to you, or the exercise of a right conferred by such a provision, or any liability of CloudWave 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.

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(d)    If CloudWave is liable to you in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the Australia Consumer Law and /or the Telecommunications Act that cannot be excluded, CloudWave’s total liability to you for that failure is limited to, at the option of CloudWave:

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(i)    in the case of services, the resupply of the services or the payment of the cost of resupply; and

(ii)    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.

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(e)    Without limitation to the other terms of this clause 13, CloudWave excludes any liability to you, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with this Agreement.

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(f)    Notwithstanding anything else in this clause 13, CloudWave’s liability will be reduced to the extent the loss or damage is caused by or contributed to by you or your Personnel.

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(g)    Without limiting the above, you release us from any Loss arising from the use of, or reliance on, the NEON Platform, whether or not caused by any negligent act or omission by us including but not limited to:

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(i)    loss of use, data or profits arising out of or in connection with the use of or the inability to use the NEON Platform;

(ii)    your reliance on the NEON Platform;

(iii)    the statements or actions of any employee or agent of CloudWave;

(iv)    any unauthorised access to or alteration of your transmissions or data;

(v)    any information that is sent or received or not sent or received;

(vi)    any failure to store or loss of data or files or other content;

(vii)    your fraudulent, negligent or otherwise unlawful behaviour;

(viii)    any delay or interruption of the NEON Platform;

(ix)    any loss incurred as a result of a third party obtaining your access details, either with or without your knowledge; and

(x)    any loss or damages in relation to the supply of services on or in relation to this NEON Platform or information made available on the NEON Platform.

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13.    Indemnity

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(a)    You indemnify CloudWave against, and hold CloudWave harmless from, any Losses (including any direct, indirect, special or consequential Losses) and all interest, penalties
 
and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses suffered or incurred by CloudWave arising out of or in connection with:

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(i)    your breach or negligent performance or non-performance of this Agreement;

(ii)    the enforcement of this Agreement;

(iii)    any claim made against CloudWave for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with your use of the Services;

(iv)    You must make payments under this clause 14:

A.    in full without set-off or counterclaim, and without any deduction in respect of taxes unless prohibited by law; and

B.    in the currency in which the payment is due, and otherwise in Australian dollars, in immediately available funds.

(v)    Except where expressly stated to the contrary in this Agreement, the rights of a party under this clause 14 are in addition to any other rights available to that party whether those rights are provided for under this Agreement or by law.

(vi)    It is not necessary for CloudWave to incur expense or make payment before enforcing a right of indemnity under this clause 14.

(vii)    The indemnities in this clause 14:

(viii)    are continuing obligations on you, independent from its other obligations under this Agreement and survive termination or expiry of this Agreement; and

(ix)    are absolute and unconditional and unaffected by anything which otherwise might have the effect of prejudicing, releasing, discharging or affecting your liability.

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14.    Service Levels

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CloudWave shall use reasonable endeavours to maintain the availability of the NEON Platform to the Customer in accordance with the Service Levels outlined in the Order Form.

15.    Breach and Termination

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(a)    If CloudWave reasonably considers that you are using the NEON Platform in breach of this Agreement, CloudWave reserves the right to remove any infringing data, file, content or material from the NEON Platform and CloudWave shall have no liability to you.

(b)    CloudWave reserves the right to deny you access to, or use of, all or part of the NEON Platform, without prior notice, if you engage in any conduct that CloudWave believes, in its sole discretion:

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(i)    violates any term or provision of this Agreement or any other terms or policies of CloudWave in place from time to time; or

(ii)    violates the rights of CloudWave or any third party; or

(iii)    is otherwise inappropriate for continued access and use of the NEON Platform.

 

(c)    CloudWave may terminate your right to access to, or use of, all or part of the NEON Platform, immediately on written notice to you if you:

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(i)    commit a material breach of this Agreement, which is capable of remedy, and you fail to remedy the breach within a reasonable time of a written notice to do so;

(ii)    commit a material breach of this Agreement which cannot be remedied;

(iii)    are repeatedly in breach of this Agreement; or

(iv)    are the subject of a bankruptcy order, or become insolvent, or make any arrangement or composition with or assignment for the benefit of your creditors, or if you go into voluntary (otherwise than for reconstruction or amalgamation) or compulsory liquidation, or a receiver or administrator is appointed over your assets.

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(d)    On termination or expiry of this Agreement your right to use the NEON Platform shall cease.

(e)    Termination of your access to the NEON Platform or the AWS Connect Account shall be without prejudice to the rights of the parties accrued before termination. All restrictions imposed on you, disclaimers and limitations of liability set out in this Agreement will survive termination.

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16.    General

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(a)    CloudWave may from time to time amend, update, or change the NEON Platform or the Third Parties, without prior notice.

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(b)    This Agreement constitute the entire agreement between you and CloudWave with respect to this NEON Platform, and the Agreement replaces all prior or contemporaneous understandings or agreements, written or oral, regarding the NEON Platform.

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(c)    No oral explanation or information provided by a party to another affects the meaning or interpretation of this Agreement or constitutes any collateral agreement, warranty or understanding.

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(d)    If any provision of this Agreement is found to be invalid or unenforceable, that provision shall be enforced to the maximum extent possible and will be deemed deleted to the extent that it is not enforceable, and the remaining provisions of the EULA shall remain in full force and effect.

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(e)    The failure by CloudWave to insist upon or enforce strict performance of any of this Agreement will not be construed as a waiver of any right or remedy of CloudWave in respect of any existing or subsequent breach of this Agreement.

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(f)    No waiver by a party of a provision of this Agreement is binding unless made in writing.

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(g)    The laws of New South Wales, Australia govern this Agreement. You hereby consent and submit to the non-exclusive jurisdiction and venue of the Courts of New South Wales and the Commonwealth of Australia for any cause of action relating to or arising under this Agreement.

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(h)    CloudWave or its Third Parties owns the NEON Platform. Information contained on the NEON Platform may not be appropriate or available for use in other locations. If you access the NEON Platform from other locations, you do so at your own initiative and you are solely responsible for compliance with local laws.

(i)    Where possible, the obligations of the parties under this Agreement will indefinitely survive the finalisation or discontinuance of this Agreement.

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(j)    This Agreement shall be for the benefit of and binding upon the parties and their heirs, executors, successors and permitted assigns.

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(k)    The parties must execute and deliver all documents and must do all things as are necessary for the complete performance of their respective obligations under this Agreement.

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(l)    The rights and remedies of a party to this Agreement are in addition to the rights or remedies conferred on the party at law or in equity.

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(m)    You may not assign any part of your rights, title, interest and obligations pursuant to this Agreement to a third party without obtaining our prior written consent, which shall not be unreasonably withheld. We may assign our rights, title, interest and obligations pursuant to this Agreement to a third party without your consent or notice to you.