16. Warranty
16.1 Exclusion of express warranties
Subject to the obligations of DragonVR in respect of the provision of the Hosted Services and/or Software under this Agreement, DragonVR makes no warranties or guarantees:
(a) that the Hosted Services and/or Software will be accessible at all times, uninterrupted or error free;
(b) that any of the Hosted Services and/or Software is without bugs or viruses;
(c) that any of the technical information is without error or inaccuracy;
(d) that the Hosted Services and/or Software is immune to unauthorised access or security breach; and
(e) in respect of the retention of, or continued accessibility of, any data.
17. Liability
(a) The Client acknowledge and agree that
(i) the Client’s use of the Hosted Services and/or Software is at its own risk;
(ii) DragonVR is not responsible for the conduct or activities of any other user of the Hosted Services and/or Software; and
(iii) the Client is acquiring the Services and otherwise entering into and acquiring goods or services under this Agreement for commercial purposes and not for domestic, personal or household use.
(b) If the Client is a consumer within the meaning of the Consumer Law, there are certain rights (such as the consumer guarantees implied by the Consumer Law, which cannot by law be excluded (Non-Excludable Condition). This clause is subject to those Non-Excludable Conditions.
(c) Subject to the application of any applicable Non-Excludable Condition and to the maximum extent permitted by law, DragonVR:
(i) excludes from this Agreement all guarantees, conditions and warranties that might but for this clause be implied into this Agreement;
(ii) excludes all liability to the Client for any Costs, expenses, losses and damages suffered or incurred directly or indirectly by the Client in connection with this Agreement, including using the Services, whether that liability arises in contract, tort or under statute; and
(iii) will not, under any circumstances, be liable to the Client for any Consequential Loss.
(d) If DragonVR’s liability under this Agreement cannot be lawfully excluded, to the maximum extent permitted by law, DragonVR’s liability for breach of any Non-Excludable Condition is limited:
(i) in the case of goods, to (at DragonVR’s option) the replacement of the goods or the supply of equivalent goods; the repair of the goods; 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;
(ii) in the case of services, to (at DragonVR’s option) the supplying of the services again; or the payment of the cost of having the services supplied again.
18. Indemnity
18.1 General indemnity
The Client indemnifies DragonVR against all costs suffered or incurred by DragonVR, however caused, arising wholly or partially, directly or indirectly, in connection with this Agreement.
18.2 Indemnity
Without limiting the indemnities provided in clause 18.1 the Client indemnifies and will keep DragonVR and its Representatives indemnified against all liability arising from claims for:
(a) libel, slander, defamation, product disparagement or indecent, false, misleading or deceptive conduct;
(b) infringement of Intellectual Property Rights;
(c) piracy, counterfeiting, plagiarism, unfair competition or idea misappropriation;
(d) breach of any provision of the Privacy Act;
(e) any incorrect, fraudulent or false information provided by the Client; and
(f) any breach of the provisions of this clause 18;
18.3 Conditions of Indemnity
(a) DragonVR may make a claim under and indemnity provided in this Agreement in relation to a Cost before having incurred the Cost, or before making a payment in relation to the Cost.
(b) The indemnities in this Agreement shall be in addition to any damages for breach of contract to which DragonVR may be entitled. Nothing in the indemnities in this Agreement will be construed so as to prevent DragonVR from claiming damages in relation to a breach by the Client of any term of this Agreement.
(c) Each indemnity in this Agreement is a continuing obligation, separate and independent from the other obligations of the parties and survives termination of this Agreement for whatever reason.
19. Termination
19.1 Expiry of this Agreement
This Agreement will end when agreed in writing by the parties.
19.2 Immediate Termination by DragonVR for Default
DragonVR may terminate this Agreement immediately by notice to the Client if the Client breaches this Agreement.
19.3 Immediate Termination by DragonVR for Insolvency Event
DragonVR may terminate this Agreement immediately by notice to the Client if the Client:
(a) is in liquidation or provisional liquidation or under administration;
(b) has a controller as defined in the Corporations Act 2001 (Cth) or an analogous person appointed to it or to any of its property;
(c) is taken under section 459F(1) of the Corporations Act 2001 (Cth) to have failed to comply with a statutory demand;
(d) is unable to pay its debts or is insolvent;
(e) dies, ceases to be of full legal capacity or becomes incapable of managing its own affairs for any reason;
(f) takes any step that could result in the Client becoming an insolvent under administration as defined in section 9 of the Corporations Act 2001 (Cth);
(g) enters into a compromise or arrangement with, or assignment for the benefit of, any of its members or creditors; or is affected by any analogous event.
20. Effects of Termination
20.1 Termination not to affect the obligation to pay
Termination of this Agreement shall not affect the Client’s obligation to pay any outstanding amounts owed to DragonVR.
21. Dispute Resolution
(a) This clause does not apply where there is a dispute concerning a payment or any amount owing by the Client to DragonVR.
(b) Subject to clause 21(f) any dispute which arises between the parties in connection with this agreement (dispute) must be dealt with in accordance with the requirements of this clause 21, before either party will be entitled to commence proceedings against the other party in respect of the dispute.
(c) The party claiming that a dispute has arisen (complainant) must give the other party a written notice setting out a detailed explanation of the nature of the dispute; and what action the complainant thinks will resolve the dispute (dispute notice).
(d) Within 10 business days of the dispute notice being received by the other party, a nominated senior executive of each party must meet, act in good faith and use best endeavours to resolve the dispute at that meeting, or such subsequent meetings as may be reasonably required.
(e) If the dispute is not resolved pursuant to clause 21(d) within 30 days of the dispute notice being received by the other party, the parties agree to attend a privately held mediation with a mediator appointed by the nominated senior executive or both parties and in the absence of agreement within 7 days of disagreement by such mediator as appointed by the President, or person in like office of the Resolution Institute.
(f) If the dispute is not resolved within a further 30 days pursuant to clause 21(e) then either party may commence proceedings against the other party in respect of the dispute.
(g) Nothing in this clause 21 prevents a party from seeking urgent injunctive or similar relief from a court.
22. Confidentiality
(a) A party will not, without the prior written approval of the other party, disclose the other party’s Confidential Information.
(b) A party will not be in breach of this confidentiality clause in circumstances where it is legally compelled to disclose the other party’s Confidential Information.
(c) Notwithstanding any other provision of this clause, a party may disclose the terms of the Agreement (other than Confidential Information of a technical nature) to its related companies, solicitors, auditors, insurers and accountants.
(d) Each party will take all reasonable steps to ensure that its employees and agents, and any subcontractors engaged for the purposes of the Agreement, do not make public or disclose the other party’s Confidential Information.
22.2 Breach notifications
A party must notify the disclosing party in writing, giving full details known to it immediately, when it becomes aware of any actual, suspected, likely or threatened: breach by any person of any obligation in relation to the Confidential Information; or theft, loss, damage, or unauthorised access, use or disclosure of or to any Confidential Information.
22.3 Survival
The obligations under this clause 22 survive termination of the Agreement.
23. General
23.1 Notices
(a) A notice under this Agreement must be given by email and is deemed to be received when the email is capable of being retrieved by the addressee at an email address designated by the addressee.
(b) DragonVR designated email address is info@lwphoenix.com.au, or any other designated email address notified to the Client from time to time.
(c) The Client’s designated email address is the email address as set out in the Project Scope. The Client may change the designated email address at any time by notifying DragonVR.
23.2 Assignment
(a) The Client may only assign, encumber, declare a trust over or otherwise create an interest in its rights under this document with the consent of DragonVR.
(b) DragonVR may assign, encumber, declare a trust over or otherwise create an interest in its rights under this document without the consent of the Client, and may disclose to any potential holder of the right or interest any information relating to this document or any party to it.
23.3 Unforeseen Event
A party is not responsible for any loss arising out of any occurrences or condition beyond its control (other than an obligation to pay money), including but not limited to acts of war (whether declared or not) or terrorism, the mobilisation of armed forces, civil commotion or riot, natural disaster, industrial action or labour disturbance, currency restriction, embargo, action or inaction by a government, a failure of a supplier, public utility or common carrier or computer disruption due to the effects of a computer virus, trojan, malware or other malicious code.
23.4 Liability for expenses
Each party must pay its own expenses incurred in negotiating, executing, stamping and registering this document.
23.5 Giving effect to this document
Each party must do anything (including execute any document), and must ensure that its Representatives do anything (including execute any document), that the other party may reasonably require to give full effect to this document.
23.6 Waiver of rights
A right may only be waived in writing, signed by the party giving the waiver, and:
(a) 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;
(b) a waiver of a right on one or more occasions does not operate as a waiver of that right if it arises again; and
(c) the exercise of a right does not prevent any further exercise of that right or of any other right.
23.7 Relationship
Nothing in this Agreement is intended to create or be construed as creating a relationship of agency, joint venture or partnership between any of the parties. Unless expressly stated in this Agreement, no party may act as agent of or in any way bind another Party to any Obligation.
23.8 Operation of this document
(a) This document contains the entire agreement between the parties about its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this document and has no further effect.
(b) Any right that a person may have under this document is in addition to, and does not replace or limit, any other right that the person may have.
(c) Any provision of this document which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make this document enforceable, unless this would materially change the intended effect of this document.
23.9 Consents
Where this Agreement states that the consent or approval DragonVR is required, DragonVR may: give or withhold that consent or approval in its absolute discretion; and give that consent or approval subject to conditions, unless this Agreement expressly states otherwise.
23.10 Liability of Parties
If a party consists of more than one person: an obligation of that party is a joint obligation of all of those persons and a several obligation of each of them; a right given to that party is a right given jointly and severally to each of those persons, and if exercised by one of them, is deemed to be exercised jointly; and a representation, warranty or undertaking made by that party is made by each of those persons.
23.11 Inconsistency with other documents
If this document is inconsistent with any other document or agreement between the parties, this document prevails to the extent of the inconsistency.
23.12 Reliance
Neither party has entered into any contract under this Agreement in reliance on or as a result of any representation, promise, statement, conduct or inducement by the other otherwise than as set out in this Agreement.
23.13 Time is of the essence
Time is of the essence in this Agreement.
23.14 Counterparts
This Agreement may be agreed to in any number of counterparts including where they are exchanged by email containing this Agreement as an unalterable attachment. All counterparts together will be taken to constitute one instrument.
23.15 Governing law
The laws of Queensland, Australia govern this Agreement. The parties submit to the non‑exclusive jurisdiction of courts exercising jurisdiction there.
23.16 Independent Legal Advice
The Client acknowledges that DragonVR has recommended that the Client seek independent legal and other appropriate professional advice in respect of this Agreement.
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