Terms & Conditions
This document was last updated on 17th January, 2024.
Introduction
This Agreement sets forth the terms and conditions of the Mutexer platform
Services: Mutexer Pty Ltd (‘Mutexer’) is an industrial automation software platform. The Customer wishes Mutexer to supply the Services to the Customer. Mutexer agrees to supply the Services to the Customer in accordance with the terms of this Agreement. The Customer agrees to use the Services in accordance with the terms of this Agreement.
Term
Start Date and End Date: This Agreement starts on the date the Customer accepts the Agreement and ends when the Customer’s account is cancelled, unless earlier terminated in accordance with its terms (‘Term‘).
Acceptance: The Customer accepts this Agreement by the earlier of:
(a) signing and returning a copy to Mutexer;
(b) confirming by email or accepting via the platforms or applications through which Mutexer provides the Agreement to the Customer; or
(c) instructing Mutexer (whether orally or in writing) to proceed with the provision of the Services or making part or full payment of the Fees.
Acting on behalf of an entity: If the Customer is agreeing to this Agreement on behalf of an entity it represents (‘Customer Entity‘), then ‘Customer‘ means the Customer as the individual user and the Customer Entity and the Customer is binding the Customer Entity to this Agreement. If the Customer accepts this Agreement on behalf of the Customer Entity, the Customer represents that the Customer has the legal authority to do so.
Non-Solicitation
No solicitation: The Customer will not solicit or entice any employee or contractor of Mutexer to work for the Customer or any business which competes with Mutexer during the term of this Agreement or for a period of 12 months after the date of expiry or termination of this Agreement (unless the Customer obtains Mutexer’s express prior written consent, for which a fee may be payable).
Payment
Currency: Mutexer charges the Customer for the Services in USD. Mutexer reserves the right to alter the currency as required.
Payment: The Customer will pay for the Services via an automated credit card billing system. Mutexer may, at its sole discretion, offer alternative payment arrangements (such as invoicing) to the Customer. Where this is offered, the Customer is bound by the terms on the invoice.
Payment in Advance: The Customer will be charged for each billing period at the start of the period.
Recurring Billing: The Customer will be continuously billed at the beginning of each billing period until the Customer cancels their account or the Agreement is terminated.
No Refunds: The Customer acknowledges that no refunds will be due for any issues accessing or making use of the Services. Mutexer may offer refunds on a case by case basis at its sole discretion.
Fees: The fees for the Services are outlined on the Mutexer Website. The Customer will pay the specified price for the selected plan monthly (unless otherwise agreed with Mutexer).
Payment Processing Fees: The Customer may be charged additional fees by the payment processor.
Changes to Fees: Mutexer may, at its sole discretion, alter the Fees for the Services by providing written notice to the Customer with at least 30 days notice. The Customer accepts any changes by continuing to use the Services after the notice period.
Third party supplier increases: The Customer acknowledges that if any other supplier on which Mutexer relies to supply the Services increases the cost of such services to Mutexer, then Mutexer may increase the Fees by an amount reasonably determined by Mutexer to recover such increase.
Dispute: If the Customer does not dispute any payment prior to its due date, the Customer will be deemed to have accepted the charge. If the Customer wishes to dispute any portion of a charge, the Customer must pay the undisputed portion of the charge.
Credit limit: Mutexer may impose a credit limit for the Customer and, if the Customer exceeds such credit limit, Mutexer may:
(a) require the Customer to pay in advance for any Services; or
(b) suspend the supply of the Services or any part of the Services until the Customer’s account is brought within such credit limit.
Interest on late payments: Mutexer may charge monthly compound interest on any overdue amounts owed by the Customer at a rate of 5% per annum above the Reserve Bank of Australia’s cash rate target.
Termination for late payment: Mutexer reserves the right to cancel the Customer’s account and Terminate this Agreement if the Customer does not pay its debts as they fall due.
Non-Mutexer Fees: Mutexer is not responsible for any fees incurred by the Customer’s ISP or other suppliers for additional usage triggered by the use of Mutexer services.
Confidential Information
Disclosure: Each party (‘Receiving Party’) agrees:
(a) not to disclose the Confidential Information of the other party (‘Disclosing Party’) to any third party;
(b) to use all reasonable endeavours to protect the Confidential Information of the Disclosing Party from any unauthorised disclosure; and
(c) to only use the Confidential Information of the Disclosing Party for the purposes for which it was disclosed or provided by the Disclosing Party, and not for any other purpose.
Exclusions: The obligations in clause 11 do not apply to Confidential Information that:
(a) is required to be disclosed in order for the parties to comply with their obligations under this Agreement;
(b) is authorised to be disclosed by the Disclosing Party;
(c) is in the public domain and/or is no longer confidential, except as a result of a breach of this Agreement; or
(d) must be disclosed by Law or by a regulatory authority.
Urgent relief: Each party agrees that monetary damages may not be an adequate remedy for a breach of this clause 11. A party is entitled to seek an injunction, or any other remedy available at law or in equity, at its discretion, to protect itself from a breach (or continuing breach) of this clause 11.
Reasonable safeguards: Each party will ensure that party, and each member of that party’s Personnel, will take all reasonable steps to keep the other party’s Confidential Information secure including but not limited to by using the security measures and degree of care no less than that party applies to that party’s own confidential or proprietary information.
Intellectual Property Rights
Existing IP: As between the parties:
(a) Mutexer owns all Intellectual Property Rights in the Mutexer Materials; and
(b) the Customer owns all Intellectual Property Rights in the Customer Materials, and
(c) nothing in this Agreement constitutes a transfer or assignment of any Intellectual Property Rights in the Mutexer Materials or the Customer Materials.
Licence to the Customer of Mutexer Materials: Mutexer grants the Customer a non-exclusive, revocable, worldwide, non-sublicensable and non-transferable right and licence, to use Mutexer Materials that Mutexer provides to Customer, solely for the purposes for which they were developed and for the Customer’s use and enjoyment of the Services, as contemplated by this Agreement.
New Customer Materials: As between the parties, ownership of all Intellectual Property Rights in any New Customer Materials will at all times vest, or remain vested, in Customer upon creation.
Customer licence to Mutexer to enable the provision of the Services: The Customer grants Mutexer a non-exclusive, royalty-free, revocable, worldwide, right and licence, to use the Customer Materials and New Customer Materials solely for the purposes for which they were developed and for the performance of Mutexer’s obligations under this Agreement, as contemplated by this Agreement.
Additional software licence terms: The Customer must strictly comply with any software licence entered into between the parties and any breach of such software licence by the Customer will be deemed to be a breach of a material provision of this Agreement. Further, any use or incorporation of additional licences in Customer Materials or New Customer Materials, such as but not limited to, the Apache open source licence, the MIT open source licence or otherwise, must be upheld by the Customer. The Customer accepts all responsibility for maintaining any such licences.
Conditions of Use
Access: The Customer must:
(a) prevent unauthorised access to Services; and
(b) maintain the confidentiality and security of any account details or passwords.
Conditions of use: The Customer must not (unless authorised under this Agreement):
(a) copy, modify, adapt, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble or decompile the Services or any part of the Services or otherwise attempt to discover any part of the source code of the Services;
(b) use any unauthorised, modified version of the Services, including (without limitation) for the purpose of building similar or competitive software or for the purpose of obtaining unauthorised access to the Services;
(c) use the Services in a manner that is contrary to any Laws or in violation of any Intellectual Property Rights or privacy rights;
(d) publish, post, upload or otherwise transmit data that contains any viruses, ransomware, trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with information or property of any person;
(e) use or knowingly permit the use of any security testing tools to probe, scan or attempt to penetrate or ascertain the security of the Services;
(f) take any action that may compromise or jeopardise Mutexer’s Intellectual Property Rights in the Services or otherwise;
(g) remove or deface any confidentiality, copyright or other proprietary notice placed on the Services;
(h) make any representations or warranties to any third parties that could be construed as being representations or warranties from Mutexer in relation to the Services or any other matter;
(i) use the Services in any way that involves concurrent use of a single user login, or time-sharing of the Services;
(j) use the Services to develop, host, or distribute applications for critical or safety systems. This includes, but is not limited to, use in, or in association with, the operation of any hazardous environments or critical systems that may lead to serious bodily injury or death or cause environmental or property damage. The Customer is solely responsible for all liability that may arise in connection with any such use.
(k) transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted;
(l) do anything that damages, interferes with or interrupts the supply of the Services;
(m) abuse the Services with excessive use of unmetered products and services; or
(n) do any other thing in relation to the Services specifically prohibited by Mutexer in the Agreement or otherwise communicated by Mutexer to the Customer in writing as being prohibited.
No transfer: Subject to section 6, nothing in this Agreement grants to the Customer, or any member of the Customer’s Personnel, any Intellectual Property Rights in respect of any Intellectual Property Rights of Mutexer.
Infringement: The Customer will provide immediate written notice to Mutexer if the Customer becomes aware of any actual or threatened infringement of any Intellectual Property Rights of Mutexer. The Customer will provide all reasonable assistance to Mutexer in relation to preventing any actual or threatened infringement of any Intellectual Property Rights of Mutexer.
Breach: The Customer acknowledges:
(a) the value of the Intellectual Property Rights is such that an award of damages or an account of profits might not be an adequate remedy for a breach of this clause; and
(b) Mutexer may, without having to prove any actual damage, take any action or seek any remedy including but not limited to seeking an injunction in relation to any actual or threatened breach of this clause.
Analytics and Data: Despite anything to the contrary in Agreement or elsewhere, Mutexer may monitor, analyse and compile statistical and performance information based on and/or related to the Customer’s use of the Services (‘Data and Analytics‘). This includes, but is not limited to, training and making use of statistical, machine learning, and/or artificial intelligence models using the captured data. The Customer agrees that Mutexer may make such Data and Analytics publicly available, provided that it:
(a) does not contain identifying information; and
(b) is not compiled using a sample size small enough to make the underlying customer data identifiable.
(c) Mutexer and Mutexer’s licensors own all right, title and interest in and to the Analytics and all related software, technology, documentation and content provided in connection with the Data and Analytics, including all Intellectual Property rights in the foregoing.
Fair Usage Of Resources: The Fees have been set based on an estimated utilisation of server resources. If the Customer requires significantly more resources than what was estimated, Mutexer reserves the right to adjust the price without the Customer’s written consent. All changes in price will be carried out through the Changes to Fees clause (4.6), defined below. If the price alteration is significant (10% or more), the Customer will have a choice to cancel or have service availability halted until utilisation resumes to the prior estimate.
Temporary Suspension: Mutexer reserves the right to suspend any or all portions of the Service immediately upon notice to the Customer, if the Customer or traffic entering or engaging with the Services:
1) pose a security risk to Mutexer or any of Mutexer’s other customers
2) adversely affect Mutexer systems, or
3) subject Mutexer to any liability. During suspension, the Customer remains responsible for any fees and charges the Customer incurs during this period.
Privacy
If required by law, each party will comply with all obligations under the Privacy Act 1988 (Cth) at all times.
Collection Of Data: Mutexer collects information for the purposes of providing the Services. The Customer has the right to request information regarding the types of data Mutexer holds about them.
Location Of Data: Where feasible, Mutexer holds all data within Australia. With regards to transborder data flows and the National Privacy Principles, Mutexer declares that some records are stored in cloud servers that may not reside in Australia. By agreeing to these terms, the Customer gives consent to the transfer of such records.
Data Retention: Mutexer provides no guarantee of the length of time that captured data will be stored in databases, Third Party Applications, and backups.
Force Majeure
If performance of this Agreement or any obligation under this Agreement is prevented, restricted, or interfered with by causes beyond either party’s reasonable control (‘Force Majeure‘), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision will be suspended to the extent necessary by such event. The term ‘Force Majeure’ includes without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, orders of acts of military or civil authority, or by national emergencies, pandemics, insurrections, riots, or wars, or strikes, lock-outs, work stoppages. The excused party must use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and must proceed to perform with reasonable speed whenever such causes are removed or ceased. An act or omission will be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.
Warranties
Power: Each party warrants that the party has the right, power, authority and entitlement to execute this Agreement and perform that party’s obligations under this Agreement.
Conditions and warranties: To the extent permitted by law, Mutexer excludes all express and implied conditions and warranties in relation to any goods and/or services except those conditions or warranties that cannot be excluded by law and Mutexer’s liability under any such conditions or warranties is limited to, at Mutexer’s option:
(a) ing the cost of the goods and/or services;
(b) resupplying the goods and/or services; or
(c) arranging to replace or repair the goods and/or the outcome of the services.
High-risk activities: All goods and/or services provided by Mutexer are not fault-tolerant and are not designed or intended for use in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, life-support machines, or any other application in which the failure of the products, software, or services could lead directly to death, personal injury, or severe physical, property, or environmental damage (collectively, “High-Risk Activities”). Mutexer expressly disclaims any express or implied warranty of fitness for High-Risk Activities.
Mandatory consumer law clause
Definitions: In this Agreement:
ACL: The parties acknowledge that under the Australian Consumer Law and other similar legislation of Australian states and territories, certain statutory guarantees are conferred in relation to the supply of goods or services to a Consumer (‘Consumer Guarantees‘) within Australia. Where the Customer as a Consumer in Australia acquires goods and services under this Agreement from Mutexer as a supplier and:
(a) the goods or services are PDH Goods or Services, the operation of the Consumer Guarantees cannot be, and are not in this Agreement, excluded, restricted or modified; or
(b) the goods or services are not PDH Goods or Services, Mutexer limits its liability for a failure to comply with any Consumer Guarantee (other than: (a) a Consumer Guarantee as to title, encumbrances or undisturbed possession of goods conferred by the Australian Consumer Law; or (b) where to do so would otherwise cause all or part of this clause to be void) to, at Mutexer’s option:
(i) in the case of goods, repairing or replacing the goods or paying the cost of having the goods repaired or replaced; and
(ii) in the case of services, resupplying the services or paying the cost of having the services resupplied.
No exclusion or limitation: Despite anything to the contrary in this Agreement or otherwise, Mutexer does not exclude or limit the operation of the Consumer Guarantees under any other provision of this Agreement in any other manner and the parties agree it is fair and reasonable in all the circumstances for Mutexer’s liability to be so limited.
Mandatory notification: Australian law requires Mutexer to notify consumer purchasers of Mutexer goods that: ‘Mutexer’s goods come with guarantees that cannot be excluded under the Australian Consumer Law. The Customer is entitled to a replacement or for a major failure and compensation for any other reasonably foreseeable loss or damage. The Customer is also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.’
Liability
Liability: Despite anything to the contrary and to the maximum extent permitted by Law:
(a) a party’s liability for any Liability under this Agreement will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other party (or any of its Personnel);
(b) neither party will be liable for any Consequential Loss; and
(c) Mutexer’s aggregate liability for any Liability arising from or in connection with this Agreement will be limited to repaying the Customer the amount of the Fees paid by the Customer to Mutexer in the immediately preceding 12 months for the supply of the relevant Services to which the Liability relates.
Exclusions to Liability: Despite anything to the contrary, to the maximum extent permitted by law, Mutexer will not be liable for, and the Customer waives and releases Mutexer from and against, any Liability, caused or contributed to by, arising from or connected with:
(a) loss of, or damage to, any property or any injury to or loss to any person;
(b) the Customer’s Computing Environment or Hardware damage;
(c) the Customer’s or the Customer’s Personnel’s acts or omissions;
(d) any use or application of the Services by a person or entity other than the Customer, or other than as reasonably contemplated by this Agreement;
(e) any work, services, goods, materials or items which do not form part of the Services, or which have not been provided by Mutexer;
(f) any Third Party Applications;
(g) the Services being unavailable, or any delay in Mutexer providing the Services to the Customer, for whatever reason and/or any event outside of Mutexer’s reasonable control;
(h) a fault or defect in any item of the Customer’s equipment;
(i) external causes including natural disaster, fire, accident, neglect, misuse, vandalism, water, lightning, power surge, problems with electrical power, electrical spike or any Force Majeure Event;
(j) the use of any Services or Hardware for other than its intended purpose;
(k) Customer Sublicensing;
(l) the use with or connection of any Hardware to items not approved by Mutexer; and
(m) the use of any Services or Hardware not in accordance with their instructions, normal wear and tear, and problems caused by use of parts and components not supplied by Mutexer.
Implied warranties: Mutexer excludes all conditions and warranties implied by custom, law or statute except for the Consumer Guarantees. Except for the Consumer Guarantees, all material and work is provided to the Customer without warranties of any kind, either express or implied and Mutexer expressly disclaims all warranties of any kind including but not limited to implied warranties of merchantability and fitness for a particular purpose.
Harmful code and data integrity: Mutexer does not guarantee that any file or program available for download or execution from or via the Services is free from viruses or other conditions which could damage or interfere with data, hardware or software with which it might be used. Mutexer is not responsible for the integrity or existence of any data in the Customer’s Computing Environment, network or any device controlled by the Customer, the Customer’s authorised users or the Customer’s Personnel.
Acknowledgements: The Customer acknowledges:
(a) Mutexer will not be responsible or liable for any Liability or Claim if Mutexer is delayed in the provision of the Services as a direct or indirect result of the acts or omissions of the Customer, any member of the Customer’s Personnel or any third party; and
Facilities: The Customer acknowledges that:
(a) Mutexer may provide the Services using a combination of Mutexer’s own facilities and the facilities and services of other suppliers (however Mutexer is not relieved of its liabilities and obligations under this Agreement by such engagement);
(b) Mutexer does not make any warranty or representation as to the ability of the facilities or services of any other suppliers; and
(c) Mutexer is not liable for any failure in, fault with or degradation of the Services if that failure, fault or degradation is attributable to or caused by any failure of the facilities or services of any other suppliers.
Hardware: The Customer acknowledges:
(a) Mutexer will not be liable for any Liability or Claim in connection with any Hardware issues caused by use of the Services
Security: The Customer acknowledges:
Mutexer is not responsible for any exploits due to security flaws or the consequences that follow;
Mutexer cannot be held responsible for system viruses, the presence of exploitation of security weaknesses, irrespective of whether they were present in software produced, maintained or sold by Mutexer, or flaws in the platform itself;
Mutexer cannot be held responsible for malignant data processes, and cannot guarantee that data submitted or held in storage will be secure from unauthorised access;
There is no guarantee of security or privacy on the internet, and Mutexer offers no guarantee or provides no warranty (express or implied) that the Services will be secure or private; and
Mutexer accepts no liability for any and all security incidents, including any loss or damage suffered by Customer arising out of any failure to protect Customer’s data, network, systems, software or equipment.
Termination
Termination for cause: This Agreement will terminate immediately upon written notice if:
(a) either party (or any of its Personnel) breaches a material provision of this Agreement and that breach has not been remedied within 10 Business Days of being notified by the other party; or
(b) either party is unable to pay its debts as they fall due.
What happens after termination: Upon expiry or termination of this Agreement:
(a) Mutexer will immediately suspend or terminate providing the Services;
(b) Mutexer will be entitled to permanently delete all of the Customer’s data within 30 days from the expiry or termination and will provide the Customer with an opportunity to access and copy the Customer’s data prior to that deletion. Where the data is too large to transfer over an ordinary internet connection within a reasonable period of time, charges may apply to the Customer;
(c) Mutexer will provide any further disengagement services as agreed and at Mutexer’s then current rates;
(d) the Customer agrees that any payments made are not able; and
(e) the Customer is to pay for all Services provided prior to termination, including Services which have been provided and have not yet been invoiced to the Customer, and all other amounts due and payable under this Agreement.
Existing rights: Termination of this Agreement will not affect any rights or liabilities that a party has accrued under it.
Taxes
Exclusion of Taxes. The Customer is responsible for all taxes, levies or duties imposed by taxing authorities in the Customer’s jurisdiction, and the Customer will be responsible for payment of them. Mutexer has no responsibility to them on the Customer’s behalf.
Payable: If tax is payable on any supply made under this Agreement, the recipient of the supply must pay an amount equal to the tax payable on the supply. That amount must be paid at the same time that the consideration is to be provided under this Agreement and must be paid in addition to the consideration expressed elsewhere in this Agreement, unless it is expressed to be inclusive of tax. The recipient is not required to pay any tax until the supplier issues a tax invoice for the supply.
Adjustment event: If an adjustment event arises in respect of any supply made under this Agreement, a corresponding adjustment must be made between the supplier and the recipient in respect of any amount paid by the recipient under this clause, an adjustment note issued (if required), and any payments to give effect to the adjustment must be made.
Reimbursement: If the recipient is required under this Agreement to pay for or reimburse an expense or outgoing of the supplier, or is required to make a payment under an indemnity in respect of an expense or outgoing of the supplier, the amount to be paid by the recipient is to be reduced by the amount of any input tax credit in respect of that expense or outgoing that the supplier is entitled to.
Definitions: The terms ‘adjustment event’, ‘consideration’, ‘input tax credit’, ‘recipient’, ‘supplier’, ‘supply’, ‘taxable supply’ and ‘tax invoice’ each has the meaning which it is given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
General
Overseas access: The Services may be accessed in Australia and overseas. Mutexer makes no representation that the Services comply with the laws of any country outside of Australia. If the Customer accesses the Services from outside Australia, the Customer does so at the Customer’s own risk and the Customer is responsible for complying with the laws in the place the Customer accesses the Services.
Amendment: This Agreement may be amended by Mutexer at any time by providing 30 days written notice to the Customer. The Customer’s continued use of the Services is considered acceptance of the changes.
Assignment: A party must not assign or deal with the whole or any of its rights or obligations under this Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld).
Counterparts: This Agreement may be executed by any generally accepted and lawful form of digital signature including but not limited to DocuSign, Adobe Sign, click-wrap via account registration, and in any number of counterparts, each of which will be considered an original for all purposes, and all of which when taken together will constitute one Agreement binding on the parties, notwithstanding that both parties are not signatories to the original or the same counterpart.
Dispute: A party may not commence court proceedings relating to any dispute, controversy or claim arising from or in connection with this Agreement (including any question regarding its existence, validity or termination) (‘Dispute‘) without first meeting with a senior representative of the other party to seek in good faith to resolve the Dispute. Nothing in this clause will operate to prevent a party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.
Entire Agreement: This Agreement contains the entire understanding between the parties, and supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and Agreements, in respect of its subject matter.
Survival: Clauses 5, 6, 10, 11, 12, 13, 15 and 16 will survive termination or expiry of this Agreement.
Exclusivity: The Services will be provided to the Customer on a non-exclusive basis.
Further assurances: Each party must promptly do all things and execute all further instruments necessary to give full force and effect to this Agreement and their obligations under it.
Governing law: This Agreement is governed by the laws of Victoria. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Victoria and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
Notices: Any notice given under this Agreement must be in writing addressed to the relevant address last notified by the recipient to the parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 4 Business Days in the case of post, or at the time of transmission in the case of transmission by email.
Publicity: The Customer agrees that Mutexer may advertise or publicise the broad nature of Mutexer’s provision of the Services to the Customer, including on Mutexer’s Platform or in Mutexer’s promotional material. This includes the use of the Customer’s logo.
Relationship of Parties: This Agreement is not intended to create a partnership, joint venture, employment or agency relationship between the parties.
Severance: If a provision of this Agreement is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from this Agreement without affecting the validity or enforceability of the remainder of that provision or the other provisions.
Waiver: Any failure or delay by a party in exercising a power or right (either wholly or partly) in relation to this Agreement does not operate as a waiver or prevent a party from exercising that power or right or any other power or right. A waiver must be in writing.
Email and SMS: The Customer agrees that Mutexer may send and receive emails and SMSs to and from the Customer. The Customer releases Mutexer from any Liability Mutexer may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to the Customer’s system or any files by a transfer.
Definitions and interpretation
Definitions: In this Agreement, unless the context otherwise requires, capitalised terms have the meanings given to them in this Agreement, and:
‘Agreement‘ is defined in clause 2.2;
‘Approval‘ means an approval, licence, authorisation, permit, consent, permission or certificate;
‘Australian Consumer Law‘ has the meaning given to that term in Section 4 of the Competition and Consumer Act 2010 (Cth);
‘Business Day‘ means a day on which banks are open for general bank business in Victoria, excluding Saturdays, Sundays and public holidays;
‘Claim‘ means any actual, contingent, present or future claim, demand, action, suit or proceeding for any Liability, restitution, equitable compensation, account, injunctive relief, specific performance or any other remedy of whatever nature and however arising, whether direct or indirect, and whether in contract, tort (including but not limited to negligence) or otherwise;
‘Customer Computing Environment‘ means the Customer’s computing environment including all hardware, software, computer equipment, information technology and telecommunications services and Systems;
‘Customer Materials‘ means all work, models, processes, technologies, strategies, materials, information, documentation and services (including Intellectual Property), owned, licensed or developed by or on behalf of the Customer or the Customer’s Personnel before the Start Date and/or developed by or on behalf of the Customer or the Customer’s Personnel independently of this Agreement such that:
(a) is disclosed to the Receiving Party in connection with this Agreement at any time;
(b) is prepared or produced under or in connection with this Agreement at any time;
(c) relates to the Disclosing Party’s business, assets or affairs;
(d) relates to the subject matter of, this Agreement, of and/or any transactions contemplated by this Agreement,’Confidential Information‘ includes information which: whether or not such information or documentation is reduced to a tangible form or marked in writing as ‘confidential’, and howsoever the Receiving Party receives that information;
‘Customer Sublicensing’ means the Customer providing other companies or individuals with access to an application developed on the platform, either paid or free of charge;
‘Consequential Loss‘ includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise;
‘Consumer‘ has the meaning given to that term in Section 3 of the Australian Consumer Law;
‘End Date‘ means the end date of the billing period following cancellation or Termination;
‘Fees‘ means the fees for the provision of the Services as set out on the Mutexer Website or other documentation provided to the Customer;
‘Hardware‘ means any computer hardware, equipment and any other similar items supplied by Mutexer to the Customer as part of or incidental to the Services (whether virtual or otherwise);
‘Insolvency Event‘ means any of the following events or any analogous event:
(a) a party disposes of the whole or any part of the party’s assets, operations or business other than in the ordinary course of business;
(b) a party ceases, or threatens to cease, carrying on business;
(c) a party is unable to pay the party’s debts as the debts fall due;
(d) any step is taken by a mortgagee to take possession or dispose of the whole or any part of the party’s assets, operations or business;
(e) any step is taken for a party to enter into any arrangement or compromise with, or assignment for the benefit of, a party’s creditors or any class of a party’s creditors; or
(f) any step is taken to appoint an administrator, receiver, receiver and manager, trustee, provisional liquidator or liquidator of the whole or any part of a party’s assets, operations or business;
‘Intellectual Property‘ means any copyright, registered and unregistered trade marks, designs (whether or not registered or registrable), domain names, know-how, inventions, processes, trade secrets or Confidential Information or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing;
Intellectual Property Rights‘ means any and all intellectual property rights, whether existing now or in the future, anywhere in the world, and the subject matter of such rights, including the following:
(a) patents, copyright, rights in circuit layouts (or similar rights), registered designs, registered and unregistered trademarks, and any right to have confidential information kept confidential; and
(b) any application or right to apply for registration of any of the rights referred to in paragraph (a), whether or not such rights are registered or capable of being registered and whether existing under a Law, at common law or in equity.
‘Laws‘ means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any person with the authority to bind the relevant party in connection with this Agreement or the provision of the Platform Services, and includes the Privacy Act 1988 (Cth) and the Spam Act 2003 (Cth);
‘Liability‘ means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgement (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a party to this Agreement or otherwise;
‘Mutexer Materials‘ means all work, models, processes, technologies, strategies, materials, information, documentation and services that Mutexer may provide to the Customer under this Agreement, and which may contain material which is owned by or licensed to Mutexer, and is protected by Australian and international laws. This includes, but is not limited to, materials developed for the Customer by Mutexer;
‘Mutexer Website’ means the website located at www.mutexer.com and all pages contained within it;
‘New Customer Materials‘ means all Intellectual Property developed, adapted, modified or created by the Customer or any of the Customer’s Personnel on the Mutexer platform;
‘PDH Goods or Services‘ means goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption;
‘Personnel‘ means, in respect of a party, any of its employees, consultants, suppliers, subcontractors or agents, but in relation to the Customer, ‘subcontractors’ does not include Mutexer or Mutexer’s Personnel;
‘Services‘ means access to the Mutexer platform;
‘Start Date‘ means the date this Agreement is accepted;
‘System‘ means all hardware, software, networks and other systems used by a party from time to time;
‘Third Party Applications‘ means third parties or any products, software or services provided by third parties, including customers, end users, suppliers, transportation or logistics providers or other subcontractors which the provision of the Services may be contingent on, or impacted by;
Interpretation: In this Agreement, unless the context otherwise requires:
(a) a reference to this Agreement or any other document includes the document, all schedules, all attachments and all annexures as novated, amended, supplemented, varied or replaced from time to time;
(b) a reference to any legislation or Law includes subordinate legislation or Law and all amendments, consolidations, replacements or re-enactments from time to time;
(c) a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity and vice versa;
(d) no rule of construction will apply to the disadvantage of one party on the basis that that party put forward the documents comprising this Agreement or any of them;
(e) a reference to a party to a document includes that party’s executors, administrators, successors, permitted assigns and persons substituted by novation from time to time;
(f) a reference to a covenant, obligation or Agreement of two or more persons binds or benefits them jointly and severally;
(g) a reference to time is to local time in Victoria; and
(h) a reference to $ or dollars refers to the USD currency unless specified otherwise
