ArcadiaSky Terms of Service

ArcadiaSky
ARCADIASKY PTY LTD ACN 607 825 918

INTRODUCTION

  1. ArcadiaSky is a web service that connects users seeking drone operator services with the professional UAV operators.
  2. In these Terms of Service, the “Important Terms” mostly deal with using ArcadiaSky, and the “General Conditions” set out the legal basis on which ArcadiaSky is provided. You must accept these terms to use ArcadiaSky.

IMPORTANT TERMS

  1. KEY TERMS
    1. The following terms are used regularly throughout these Terms of Service and have a particular meaning:
      1. Account means a registered User account within ArcadiaSky.
      2. Agreement means the agreement formed in accordance with these Terms of Service between the Company and the User.
      3. ArcadiaSky means the Company’s suite of tools, applications and services available via the Site, known together as “ArcadiaSky”.
      4. Australian Consumer Law means the laws relating to the sale of goods or services to consumers pursuant to the Competition and Consumer Act 2010 (Cth) as apply in each State or Territory of Australia.
      5. Authorised User means a person authorised by a User to use the User’s Account.
      6. Brief means the specification of a project that a Customer submits via ArcadiaSky seeking a Proposal from an Operator for UAV services.
      7. Company means ArcadiaSky Pty Ltd ACN 607 825 918 .
      8. Content means all information, data, text, software, music, sound, photographs, graphics, video and other matter of any kind accessible via ArcadiaSky.
      9. Customer means the person or entity that holds an Account and uses the features and tools associated with the Customer user type.
      10. Fee means a fee payable to the Company for access to or use of ArcadiaSky.
      11. Operator means the person or entity that holds an Account and uses the features and tools associated with the Customer user type.
      12. Privacy Policy means the Company’s privacy policy as updated from time-to-time, accessible from here: https://www.arcadiasky.com/privacy-policy.
      13. Profile Page means an Operator’s profile page, created for the purpose of advertising the Operator’s UAV services and managed using their Account.
      14. Proposal means a proposal or quote submitted by an Operator via ArcadiaSky in response to a Brief.
      15. Services has the meaning described in item B.2 of the Important Terms.
      16. Site means the website found at https://www.arcadiasky.com.
      17. Sale means a sale of services between an Operator and a Customer arranged via ArcadiaSky.
      18. Third Party Services means any of the User’s third party service accounts connected to and/or integrated with ArcadiaSky.
      19. UAV means an unmanned aerial vehicle.
      20. UAV Services means the services offered by an Operator to Customers via ArcadiaSky.
      21. User is the collective term used to refer to a Customer, an Operator, an Authorised User or Visitor as the use of the term in its context implies.
      22. Visitor means a User that:
        1. Visits the Site; and
        2. Is neither a Customer, an Operator nor an Authorised User.
  2. AGREEMENT
    1. This Agreement governs the use of ArcadiaSky by any User and limits the liability of the Company to each User. This Agreement has specific terms of use (in addition to the General Conditions) that apply to:
      1. Customers (Item D)
      2. Operators (Item E)
      3. Visitors (Item G)
    2. ArcadiaSky allows:
      1. Users to register an Account for use as a Customer or an Operator;
      2. Operators to create a Profile Page to advertise UAV Services;
      3. Users to view Operator Profile Pages and compare the UAV Services offered by the various Operators;
      4. Customers to submit Briefs in order to solicit Proposals from Operators;
      5. Briefs to be supplied to Operators;
      6. Operators to create and submit a Proposal in response to a Brief;
      7. Sales to be arranged between a Customer and the Operator selected by the Customer.
        (a) – (g) together are referred to as the services (Services).
    3. The Site is available through the URL https://www.arcadiasky.com (or other domain as used by the Company from time-to-time).
    4. In addition to any other express or implied consents, by using ArcadiaSky the User accepts and agrees to the terms of:
      1. This Agreement; and
      2. The Privacy Policy.
  3. USING ARCADIASKY
    1. To access the Services, each User must register with ArcadiaSky (as a Customer or Operator, as the case may be) with a valid email address.
    2. Each User uses ArcadiaSky at its own risk. The Company’s liability to a User is limited to the provision of the Services, and the Company accepts no responsibility for:
      1. The Content a User makes available via ArcadiaSky or contained in any correspondence with other Users;
      2. The provision of (or failure to provide) UAV Services by an Operator;
      3. The payment for UAV Services by a Customer; or
      4. A Visitor’s access to or use of ArcadiaSky.
    3. The Company provides instructional documentation on the Site and within ArcadiaSky to assist Users with ArcadiaSky. This documentation shall be updated from time-to-time without notice.
    4. ARCADIASKY
      1. ArcadiaSky is accessible to registered Users via login from the Site.
      2. ArcadiaSky:
        1. Contains the Content that a User enters into ArcadiaSky to create and manage an Account, Profile Page, Proposal or Brief;
        2. May connect the Operator or Customer’s Account with Third Party Services; and
        3. Provides each Customer or Operator with Account management tools.
    5. Third Party Services
      1. ArcadiaSky connects to and integrates with many Third Party Services. However ArcadiaSky has no business relationship with, and does not necessarily endorse the use of Third Party Services.
      2. ArcadiaSky cannot warrant the ongoing availability or efficacy of any Third Party Services.
      3. The User authorises the Company to access the Customer Data in any Third Party Services enabled by the User.
      4. The User must comply with the terms of use of any Third Party Service, and in no way will the Company be liable for any breach of such terms by the User’s connection of ArcadiaSky to a Third Party Service.
    6. Dependencies
      1. The User agrees and acknowledges that:
        1. ArcadiaSky has third party dependencies which may affect its availability, including (without limitation) infrastructure providers; and
        2. The Company has no means of controlling the availability of such dependencies, although each of those services have a robust operating standard suitable for commercial dependency.
    7. Support
      1. The Company provides user support for ArcadiaSky via a dedicated support email, as published on the Site.
      2. The Company shall endeavour to respond to all support requests within 24 hours.
      3. The Company reserves the right to require the payment of reasonable Fees for non-standard support requests prior to the provision of such support.
  4. CUSTOMER TERMS
    1. The Customer agrees and accepts that:
      1. The Customer warrants that it is over the age of 18, can form legally binding contracts and has the authority to create a Customer Account.
      2. The Customer may only use the Services associated with a Customer account as determined by the Company in its sole discretion. The Company may change the tools and features associated with a Customer Account at any time without notice.
      3. The Customer indemnifies the Company, and will hold the Company harmless for any claim that arises from the Content that the Customer makes available via ArcadiaSky (including within a Brief) or the Content of any correspondence with any other User.
      4. ArcadiaSky only facilitates the Customer’s ability to discover and contact an Operator. The Company makes no representation as to an Operator’s;
        1. Identity or reputation;
        2. Ability to fulfil a Brief;
        3. Access to equipment; or
        4. Suitability for the purposes of providing UAV Services to the Customer.
      5. The Customer consents to being contacted by the Company for the following purposes:
        1. To provide the Customer with Proposals in response to a Customer’s Brief and to discuss the provision of UAV Services;
        2. To advise the Customer of changes to ArcadiaSky Services, Terms of Service or Privacy Policy;
        3. To advise the Customer of any special offers from the Company, an Operator or other advertiser in connection with ArcadiaSky.
      6. The Customer indemnifies the Company for all loss or damage to property, or injury to any person as a result of the UAV Services that the Customer acquires using Services.
      7. Any dispute that may arise between the Customer and an Operator must be dealt with between the Customer and the relevant Operator. In no circumstances will the Company perform a dispute resolution role between a Customer and an Operator.
  5. OPERATOR TERMS
    1. The Operator agrees and accepts that:
      1. The Operator warrants that it is over the age of 18, can form legally binding contracts, and has the authority to create an Operator Account.
      2. The Operator will pay to the Company any Fees incurred through its use of ArcadiaSky.
      3. The Operator warrants that the information that the Operator publishes about its UAV Services, or that it communicates directly with a Customer is accurate.
      4. The Operator indemnifies the Company for all loss or damage to property, or injury to any person as a result of the Operator providing UAV Services.
      5. The Operator indemnifies the Company for any claim arising from its provision of UAV Services, that results from:
        1. The Operator breaching privacy laws;
        2. Aviation laws;
        3. Or any other law that the Operator is bound to comply with in providing UAV Services.
      6. The Company may change the Services associated with an Operator Account by providing not less than 30 days written notice to the Operator prior to the change taking effect. If the Operator is not satisfied with the proposed change to the Services associated with their account type, the Operator may terminate its Account.
  6. PAYING FOR ARCADIASKY
    1. Fees
      1. Fees for the Services shall be payable on such terms as described on the Site from time to time, but in default shall be charged as follows:
        1. You shall pay fees (described below) to ArcadiaSky. Upon selection of a Paid Plan, You will provide ArcadiaSky with the necessary billing information.
        2. Credit cards are the only payment mechanism ArcadiaSky will accept for payment of a monthly subscription fee for a Paid Plan.
        3. If you select a Paid Plan, You must provide current, complete and accurate Billing Data. You must promptly update all Billing Data to keep Your Account current, complete and accurate (such as a change in billing address, credit card number or credit card expiration date) and You must promptly notify ArcadiaSky if Your Payment Method is changed (for example, for loss or theft) or if You become aware of a potential breach of security, such as the unauthorized disclosure or use of Your name or password. If You fail to provide any of the foregoing information, You agree that ArcadiaSky may continue charging You for any use of the Paid Plan under your Billing Data unless You have terminated Your Paid Plan as set forth herein.
        4. The credit card that You provide as part of the Billing Data will be automatically and immediately billed on the monthly anniversary of your subscription date each Month. You agree that ArcadiaSky may charge to Your credit card all amounts due and owing for Your Account on that monthly basis or upon cancellation.
        5. As long as Your Account remains active and in good standing, You will be charged the Subscription Fee even if You never use the service. You may, however, cancel Your Paid Plan at any time.
      2. The Company reserves the right to introduce or change any Fees from time-to-time by giving the User no less than 14 days’ written notice. Any new or changed Fees will apply from the date stated in the notice provided it is compliant with this clause.
      3. If an Operator does not accept a change to any Fees, then it can simply terminate its Account provided all Commission Fees have been paid.
    2. Currency.
      Unless otherwise noted, all Fees are quoted in Australian dollars.
    3. GST.
      For Operators in Australia, GST is applicable to any Fees charged by the Company to the User. Unless expressed otherwise, all Fees shall be deemed inclusive of GST. The Company will provide the Operator with a Tax Invoice for all payments.
    4. Refunds.
      1. No refunds of Fees are offered other than as required by law, except where the Company exercises its discretion.
    5. Cancellation.
      1. Operators can cancel their account at anytime. Any prepaid length of time will not be refunded for the unused portion of the membership.
      2. If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, and you do not change your Payment Method or cancel your account, we may suspend your access to the service until we have obtained a valid Payment Method.
  7. VISITOR TERMS
    1. Each Visitor agrees and accepts that:
      1. The Visitor accesses the Site at its own risk.
      2. The Company holds no duty of care to a Visitor to ensure ongoing access to the Site.
      3. The Company makes no warranty or representation as to the quality, safety or fitness for purpose of any UAV Service, product or other service described on the Site.
      4. The Company takes no responsibility for any harm or loss suffered by a Visitor as a result of visiting the Site, including relying on information contained in a Profile Page.
      5. If a Visitor suffers loss or harm as a result of visiting the Site, the Visitor agrees that:
        1. The Visitor shall have no recourse against the Company; and
        2. The relevant User that created or made the Content available via the Site remains responsible for any such loss or harm under Australian Consumer Law.
    2. For the avoidance of doubt a Visitor shall have no claim against the Company for its use of, or reliance on the Contents of a Profile Page. Any claim that a Visitor may have arising from its access to, or reliance on a Profile Page shall be between the Visitor and the Operator that created the Profile Page, and not involve the Company under any circumstances.
  8. CONTENT
    1. The User understands and agrees that all information, sound, photographs, graphics, video, data, text, software, music, messages and other matter of any kind accessible via the Site (Content) is subject to this Agreement.
    2. Content is the sole responsibility of the User that made the content available via the Site by uploading, publishing it or otherwise providing it.
    3. A User may not upload, modify, rent, lease, loan, sell, distribute or create derivative works based on any of the Content (either in whole or in part) unless:
      1. The User is the owner of the Content; or
      2. The User has been authorised to do so by the owners of that Content.
    4. The User understands that it uses the Site at its own risk (including relying on any information contained in a Profile Page, Brief or Proposal).
    5. To the extent permitted by law, under no circumstances will the Company be liable in any way for any Content, including but not limited to:
      1. Errors or omissions in any Content;
      2. Editing, restricting or removing Content; or
      3. Loss or damage of any kind incurred as a result of the use of any Content.
    6. The User agrees that Content that it makes available via the Site may be removed or altered by the Company, subject to applicable provisions of this Agreement and any legislation including, without limitation, privacy legislation.
    7. The User agrees that it will not upload or otherwise post, insert or provide any Content which:
      1. Is defamatory, fraudulent, unlawful, threatening, intimidating, harassing, harmful, hateful, abusive, tortious, vulgar, obscene, invasive of another's privacy, sexist, racist, homophobic, violent, discriminatory or degrading;
      2. Infringes the intellectual or other proprietary interests of third parties;
      3. Attempts to solicit personal information from another user, except in accordance with this Agreement or otherwise in complaince with the law;
      4. Impersonates another person or entity;
      5. Contains sexually explicit language or images, advertises or promotes the sale of products or services such as firearms, tobacco or alcohol, adult products and services and any other products or services the Company considers to be inappropriate;
      6. Contains spam, chain letters, pyramid and other such selling and marketing schemes, computer viruses, computer code, files or programs or other harmful components that are designed to interrupt, destroy, change or limit the functionality of the Site or any other computer software, hardware or other electronic equipment, information which in any way impinges on another user's use or enjoyment of the Site or otherwise breaches or encourages other users to breach of this Agreement;
      7. Violates any law, statute or regulation;
      8. Forges information to disguise the origin of any Content; or
      9. Encourages or incites any other person to engage in any of the above behaviour.
  9. TERMINATION & SUSPENSION
    1. Either party may end this Agreement at any time by written notice in accordance with these Terms.
    2. The Company may suspend the User’s Account should any Fees be outstanding to the Company at any time.
    3. The User agrees that the Company shall not be liable in any way for any valid termination or suspension of the User’s access to ArcadiaSky.

GENERAL CONDITIONS

  1. INTERPRETATION
    1. The following definitions apply in this document:
      1. ABN means Australian Business Number.
      2. ACN means Australian Company Number.
      3. Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Melbourne, Australia.
      4. Commencement Date means the date set out in this Agreement.
      5. Confidential Information means all information (whether or not it is described as confidential) in any form or medium concerning any past, present or future business, operations or affairs of either party, including, without limitation:
        1. all technical or non-technical data, formulae, patterns, programs, devices, methods, techniques, plans, drawings, models and processes, source and object code, software and computer records;
        2. all business and marketing plans and projections, details of agreements and arrangements with third parties, and User and supplier information and lists;
        3. all financial information, pricing schedules and structures, product margins, remuneration details and investment outlays;
        4. all information concerning any employee, User, contractor, supplier or agent of the relevant party;
        5. the party's policies and procedures; and
        6. all information contained in this document,

          but excludes information that the other party can establish:
        7. is known by or is in the other party's possession or control other than through a breach of this document and is not subject to any obligation of confidence; or
        8. is in the public domain other than by a breach of this document or any obligations of confidence.
      6. Corporations Act means the Corporations Act 2001 (Cth).
      7. Customer Data means all information, Content, data and other such materials that the User enters into or uploads to ArcadiaSky .
      8. Force Majeure means an event or cause beyond the reasonable control of the party claiming force majeure. It includes each of the following, to the extent it is beyond the reasonable control of that party:
        1. Act of God, lightning, storm, flood, fire, earthquake or explosion cyclone, tidal wave, landslide, adverse weather conditions;
        2. Act of public enemy, war (declared or undeclared), terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic;
        3. The effect of any change in applicable laws, orders, rules or regulations of any government or other competent authority; and
        4. Embargo, inability to obtain necessary materials, equipment or facilities, or power or water shortage.
      9. General Conditions means the terms and conditions set out in the section of this Agreement entitled “General Conditions”.
      10. GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
      11. Intellectual Property means all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property;
      12. Intellectual Property Rights means, for the duration of the rights in any part of the world, any Moral Rights, industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property, applications for the registration of any Intellectual Property and any improvements, enhancements or modifications to any Intellectual Property registrations.
      13. Important Terms means this Agreement’s details and variables set out in the section of this Agreement entitled “Important Terms”.
      14. Moral Rights means:
        1. Moral rights pursuant to the Copyright Act 1968 (Cth);
        2. Or any rights analogous to the rights set out in Article 6bis of the Berne Convention for Protection of Literary and Artistic Works 1886 (as amended from time to time).
      15. Privacy Act means the Privacy Act 1989 (Cth).
      16. Special Conditions means the terms and conditions set out in the section of this agreement entitled “Special Conditions”.
      17. Tax Invoice has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
    2. Headings are only for convenience and do not affect interpretation. The following rules apply unless the context requires otherwise:
      1. The singular includes the plural and the opposite also applies.
      2. If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.
      3. A reference to a clause refers to clauses in this Agreement.
      4. A reference to legislation is to that legislation as amended, reenacted or replaced, and includes any subordinate legislation issued under it.
      5. Mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included.
      6. A reference to a party to this Agreement or another agreement or document includes that party’s successors and permitted substitutes and assigns (and, where applicable, the party’s legal personal representatives).
      7. A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.
      8. A reference to information is to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets.
      9. A reference to dollars or $ is to an amount in Australian currency.
  2. APPLICATION OF THIS AGREEMENT
    1. This Agreement applies to use of and access to ArcadiaSky.
    2. Where the User does not accept or can no longer comply with the terms and conditions of this Agreement, the User must immediately cease using ArcadiaSky.
    3. This Agreement may be updated by the Company at its absolute discretion from time-to-time, and unless stated otherwise by the Company in writing, such updates shall come into effect for use of ArcadiaSky at the date specified in a notice that informs the User that such changes will come into effect.
  3. ARCADIASKY
    1. The User agrees and accepts that ArcadiaSky is:
      1. Hosted by the Company using a secure third-party hosting services and shall only be installed, accessed and maintained by the Company;
      2. Accessed by the User using the internet or other connection to the servers hosting ArcadiaSky and is not available ‘locally’ from the User’s systems; and
      3. Managed and supported exclusively by the Company from the Company’s third party hosting services and that no ‘back-end’ access to ArcadiaSky is available to the User unless expressly agreed in writing.
    2. As a hosted and managed service, the Company reserves the right to upgrade, maintain, tune, backup, amend, add or remove features, redesign, improve or otherwise alter ArcadiaSky.
    3. The Company shall not exercise its rights under clause 3.2 in a manner that would intentionally cause the User to lose access to Customer Data or fundamentally decrease the utility of ArcadiaSky to the User, other than in accordance with the terms of this Agreement.
  4. LICENSE
    1. By accepting the terms and conditions of this Agreement, the User is granted a limited, non-exclusive and revocable license to access and use ArcadiaSky for the duration of this Agreement, in accordance with the terms and conditions of this Agreement.
    2. The Company may revoke or suspend the User’s license(s) in its absolute discretion for any reason that it sees fit, including for breach of the terms and conditions in this Agreement by the User or any of its users. The Company will ordinarily advise the User of any suspension or revocation however it is under no obligation to do so.
  5. USE
    1. The User agrees that it shall only use ArcadiaSky for legal purposes and shall not use it to engage any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by the Company in its discretion.
  6. AUTHORISED USERS
    1. The User shall authorise users to access ArcadiaSky in its absolute discretion. The User agrees that additional Fees may be payable for each additional user it authorises.
    2. The Company accepts no liability for access to User Content by users authorised by the User or using login details of users authorised by the User.
    3. The User is solely responsible for the security of its username and password for access to ArcadiaSky.
    4. The User is responsible for ensuring that Authorised Users comply with this Agreement in full and are liable for any breach of them.
  7. CUSTOMER DATA
    1. The Company obtains no right, title or interest in Customer Data including any Intellectual Property found within it.
    2. The Company accepts no liability for the content of Customer Data.
    3. The User is responsible for the accuracy, quality and legality of Customer Data and the User’s acquisition of it, and the users that create, access and/or use Customer Data.
    4. Despite clause 7.1, the Company shall be authorised to permanently delete Customer Data where outstanding Fees remain unpaid in accordance the Important Terms.
    5. The Company shall not access, use, modify or otherwise deal with Customer Data except:
      1. Where required by compulsion of law;
      2. In accordance with a provision of this Agreement; or
      3. Upon the User’s authority (such as to provide support for ArcadiaSky).
  8. PRIVACY
    1. The Company maintains the Privacy Policy in compliance with the provisions of the Privacy Act for data that it collects about the User and other customers.
    2. The Privacy Policy does not apply to how the User handles Customer Data. It is the User’s responsibility to meet the obligations of the Privacy Act, including by implementing a Privacy Policy in accordance with law (if so required).
    3. The Company makes no warranty as to the suitability of ArcadiaSky in regards to the User’s privacy obligations at law or contract, and it is the User’s responsibility to determine whether ArcadiaSky is appropriate for the User’s circumstances.
  9. INVOICING & PAYMENTS
    1. The Company shall issue the User a Tax Invoice for all Fees for which GST applies.
    2. The terms of payment set out in the Important Terms shall apply.
    3. Should the User dispute a Tax Invoice, the User must notify the Company of the disputed item within 5 Business Days of the date of the Tax Invoice. The User must pay the amount of the Tax Invoice not in dispute within the prescribed payment period.
    4. Overdue Tax Invoices shall accrue interest at the rate of 1.5% per month, or in default, the maximum rate of penalty interest prescribed under law.
  10. DATA
    1. Security. The Company takes the security of ArcadiaSky and the privacy of its Users very seriously. The User agrees that the User shall not do anything to prejudice the security or privacy of the Company’s systems or the information on them.
    2. Transmission. The Company shall do all things reasonable to ensure that the transmission of data occurs according to accepted industry standards. It is up to the User to ensure that any transmission standards meet the User’s operating and legal requirements.
    3. Storage. The Company may limit the amount of data that the User stores in ArcadiaSky, and shall advise the User of such. Data that is stored with the Company shall be stored according to accepted industry standards.
    4. Backup. The Company shall perform backups of its entire systems in as reasonable manner at such times and intervals as is reasonable for its business purposes. The Company does not warrant that it is able to backup or recover specific Customer Data from any period of time unless so stated in writing by the Company.
  11. ACCESS
    1. Solution. By accepting the terms of this Agreement the User agrees that the Company shall provide access to ArcadiaSky to the best of its abilities, however it accepts no responsibility for ongoing access to ArcadiaSky.
  12. INTELLECTUAL PROPERTY
    1. Trademarks. The Company has moral & registered rights in its trademarks and the User shall not copy, alter, use or otherwise deal in the marks without the prior written consent of the Company.
    2. Proprietary Information. ArcadiaSky may use software and other proprietary systems and Intellectual Property for which the Company has appropriate authority to use, and the User agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally. The User warrants that it shall not infringe on any third-party rights through the use of ArcadiaSky.
    3. Solution. The User agrees and accepts that ArcadiaSky is the Intellectual Property of the Company and the User further warrants that by using ArcadiaSky the User will not:
      1. Copy ArcadiaSky or the services that it provides for the User’s own commercial purposes; and
      2. Directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in ArcadiaSky or any documentation associated with it.
    4. Content. All content (with the exception of Customer Data) remains the Intellectual Property of the Company, including (without limitation) any source code, ideas, enhancements, feature requests, suggestions or other information provided by the User or any other party with respect to ArcadiaSky.
  13. LIABILITY & INDEMNITY
    1. The User agrees that it uses ArcadiaSky at its own risk.
    2. The User acknowledges that the Company is not responsible for the conduct or activities of any user and that the Company is not liable for such under any circumstances.
    3. The User agrees to indemnify the Company for any loss, damage, cost or expense that the Company may suffer or incur as a result of or in connection with the User’s use of ArcadiaSky or conduct in connection with ArcadiaSky, including any breach by the User of this Agreement.
    4. In no circumstances will the Company be liable for any direct, incidental, consequential or indirect damages, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the User’s access to, or use of, or inability to use ArcadiaSky, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not the Company knew or should have known of the possibility of such damage, to business interruption of any type, whether in tort, contract or otherwise.
    5. Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted or modified. Apart from those that cannot be excluded, the Company and the Company’s related entities exclude all conditions and warranties that may be implied by law. To the extent permitted by law, the Company’s liability for breach of any implied warranty or condition that cannot be excluded is restricted, at the Company’s option to:
      1. The re-supply of services or payment of the cost of re-supply of services; or
      2. The replacement or repair of goods or payment of the cost of replacement or repair.
  14. DISPUTES
    1. All disputes between a User and the Company shall be handled in accordance with the Company’s dispute resolution policy.
    2. Where the Company does not have a relevant dispute resolution policy for a type of dispute, the following process shall apply:
      1. Negotiation. If there is a dispute between the parties relating to or arising out of this Agreement, then within 5 Business Days of a party notifying the other party of a dispute, senior representatives from each party must meet (or discuss directly via the telephone or internet) and use all reasonable endeavours acting in good faith to resolve the dispute by joint discussions;
      2. Mediation. If the dispute between the parties relating to or arising out of this Agreement is not resolved within five Business Days of notification of the dispute under Clause 14.1, the parties must agree to submit the dispute to mediation, administered by lawyers engaged in alternative dispute resolution;
      3. Court proceedings. A party may not commence court proceedings in relation to a dispute relating to or arising out of this Agreement until it has exhausted the procedures in this clause 14.2 unless the party seeks appropriate injunctive or other interlocutory relief to preserve property or rights or to avoid losses that are not compensable in damages.
  15. TERMINATION
    1. Breach. Where a party is in Material Breach of this Agreement, the other party may terminate this Agreement by giving written notice of termination, which shall become effective 5 Business Days after the date of the notice.
    2. Insolvency. Either party may terminate this Agreement immediately by notice, if either party:
      1. Stops or suspends or threatens to stop or suspend payment of all or a class of its debts;
      2. Is insolvent within the meaning of section 95A of the Corporations Act;
      3. Fails to comply with a statutory demand (within the meaning of section 459F(1) of the Corporations Act) unless:
        1. The debt to which the statutory demand relates is discharged within 15 Business Days of the date of the failure; or
        2. The party demonstrates to the satisfaction of the other party (acting reasonably) that it is able to pay all its debts as and when they become due and payable;
      4. Has an administrator appointed in respect of it;
      5. Has a controller within the meaning of section 9 of the Corporations Act or similar officer appointed to the whole or a substantial part of its assets or undertaking and that controller or similar officer is not removed within 15 Business Days of the appointment;
      6. Has an order made or a resolution passed for its winding up or dissolution or it enters into an arrangement, compromise or composition with or assignment for the benefit of its creditors or a class of them;
      7. Has any security enforced over, or a distress, execution or other similar process levied or served against, the whole or a substantial part of its assets or undertaking; or
      8. Is subject to any event, which, under the law of any relevant jurisdiction, has an analogous or equivalent effect to any of the events listed above.
    3. Expiry or termination of this Agreement is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of this Agreement up to the date of expiry or termination.
    4. The rights and obligations under the relevant provisions of clauses 6, 7, 8, 9, 12, 13, 14, 15, 16 and 17 survive termination of this Agreement.
  16. FORCE MAJEURE
    1. If a party is prevented in whole or in part from carrying out its obligations under this Agreement as a result of Force Majeure, it will promptly notify the other party accordingly. The notice must:
      1. Specify the obligations and the extent to which it cannot perform those obligations;
      2. Fully describe the event of Force Majeure;
      3. Estimate the time during which the Force Majeure will continue; and
      4. Specify the measures proposed to be adapted to remedy or abate the Force Majeure.
    2. Following a notice of Force Majeure in accordance with clause 16.1 and while the Force Majeure continues, the obligations which cannot be performed because of the Force Majeure will be suspended, other than obligations to pay money that is due and payable.
    3. The party that is prevented from carrying out its obligations under this Agreement as a result of Force Majeure must remedy the Force Majeure to the extent reasonably practicable and resume performance of its obligations as soon as reasonably possible.
    4. The party that is prevented from carrying out its obligations under this Agreement as a result of Force Majeure must take all action reasonably practicable to mitigate any loss suffered by the other party as a result of the party’s failure to carry out its obligations under this Agreement.
    5. The term of this Agreement will not be extended by the period of Force Majeure.
  17. ELECTRONIC COMMUNICATION AND ASSIGNMENT
    1. The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.
    2. The User can direct notices, enquiries, and complaints and so forth to the Company as set out in this Agreement. The Company will notify the User of a change of details from time-to-time.
    3. The Company will send the User notices and other correspondence to the details that the User submits to the Company, or that the User notifies the Company of from time-to-time. It is the User’s responsibility to update its contact details as they change.
    4. A consent, notice or communication under this Agreement is effective if it is sent as an electronic communication unless required to be physically delivered under law.
    5. Notices must be sent to a party’s most recent known contact details.
    6. The User may not assign or otherwise create an interest in this Agreement without the written consent of the Company.
    7. The Company may assign or otherwise create an interest in its rights under this Agreement by giving written notice to the User.
  18. GENERAL
    1. Prevalence. Each party to this Agreement agrees to the clauses in the Important Terms and the Special Conditions. The Important Terms, any Special Conditions and the General Conditions form a single legal agreement. To the extent that the Important Terms or the Special Conditions are inconsistent with the General Conditions, the terms of the Important Terms will prevail. To the extent that the Special Conditions are inconsistent with the Important Terms, the Special Conditions will prevail.
    2. Disclaimer. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Agreement.
    3. Relationship. The relationship of the parties to this Agreement does not form a joint venture or partnership.
    4. Waiver. No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
    5. Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to this Agreement and the transaction facilitated by it.
    6. Governing Law. This Agreement is governed by the laws of the state of Victoria, Australia. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.
    7. Severability. Any clause of this Agreement, which is invalid or unenforceable is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Agreement.

END GENERAL CONDITIONS