Affiliate Terms & Conditions In return for being provided with access to the Service and Software Materials by DataTools Pty Ltd (ABN: 21 073 541 385 ) trading as DataTools (“DataTools”), you agree (and in doing so, you confirm as an individual that you are an authorised agent for the Affiliate Partner) to the following terms and conditions (the “Agreement”; such term also includes the 3rd Party Contracts as forming part of the Agreement) on behalf of the organisation named in the registration form which you completed (the organisation being referred to as the “Affiliate Partner ”). The Affiliate Partner acknowledges: that the Agreement is a contract between the Affiliate Partner and DataTools, governing the Affiliate Partner’s and its employees use of the Service and Software Materials; and that pursuant to this Agreement it will also be entering into a separate agreement with the respective third party licensors (where applicable), as referred to in this Agreement. The Service and Software Materials are licensed to the Affiliate Partner. The Service and Software Materials are, and remain the property of DataTools and its third party licensors. Background (A) DataTools provides by various means software and data services which allow end users and authorised Affiliate partners to include data information into their applications. (B) The Affiliate Partner wishes to distribute and market certain software and data services in return for payments from DataTools in accordance with the provisions of this Agreement. (C) The Affiliate Partner integrates the Software into other software which requires Business End Users (or the Affiliate Partner on the Business End User’s behalf) to go to the DataTools Website to register to activate the Software and Service and the Business End User pays DataTools direct (unless DataTools agrees otherwise in writing). Definitions and interpretation Definitions “3rd Party Contracts” The 3rd Party Licence Agreement; the 3rd Party Reseller Partner Agreement; and DataTools Third Party Agreement. "3rd Party Licence Agreement" the terms upon which third parties allow Business End Users to use their data, software and services, details of which are available from the DataTools Website. "3rd Party Reseller Partner Agreement" the terms upon which third parties allow DataTools’ authorised affiliate partners to use certain of their data, software and services, details of which are available from the DataTools Website. “3rd Party Software” the Software excluding the DataTools Software. "Affected Party" has the meaning attributed to it in Clause 32.“Affiliate Partner” has the meaning attributed to it above. “Agreement” has the meaning attributed to it above. "BEU Third Parties" has the meaning attributed to it in Clause 6. “Business End User” A third party who is either a business entity, charity, association, public body or other legal entity (each being referred to as an “Entity”) to whom the Affiliate Partner provides access to the Software or Service pursuant to this Agreement (but for the avoidance of doubt, excludes the customers and third parties of the respective Entity). “Cessation Date” has the meaning attributed to it in Clause 10.“Commission” the payment payable (or paid, as the case may be) by DataTools to the Affiliate Partner pursuant to the Agreement, calculated in accordance with the provisions contained on the DataTools Website or as advised by DataTools in writing. For the avoidance of doubt, where DataTools has provided provisions in writing to an Affiliate Partner, these provision shall prevail. “Credit” means a prepayment by a Business End User, which for a maximum period of twelve months from the date of the making of the prepayment, or if sooner until the prepayment has been fully expended to purchase Online Services, provides the Business End User with the ability to purchase access to the respective Online Services by using part or the whole of the respective prepayment. “DataTools” has the meaning attributed to it above. “DataTools Software” DataTools’ own proprietary software, but which for the avoidance of doubt excludes any third party software and data; "DataTools Third Party Agreement" the terms upon which a third party allows DataTools to use its data, software, database and services, details of which are provided on the respective DataTools Website which relates to the respective data, software, database or services. "DataTools Website" means any websites operated by DataTools, which offer Software or Services, with such websites including without limitation those with the urls of: datatools.com.au, expresscapture.com.au, kleber.com.au, datatools.co.nz, datatoolscloud.com.au (as applicable);“Entity” has the meaning attributed to it in the definition for ‘Business End User’. "Force Majeure" has the meaning attributed to it in Clause 32. “Guilty Party” has the meaning attributed to it in Clause 23."Guidance Notes" the guidance documentation that DataTools makes available on the DataTools Website from time to time to Affiliate Partners with regard to provision of the Software Materials or Service. “Innocent Party” has the meaning attributed to it in Clause 23.“Liability Cap” has the meaning attributed to it in Clause 18."Licensor" A third party licensor of that data or software which is made available to the Affiliate Partner or the Business End Users pursuant to this Agreement. "New Commission Date" has the meaning attributed to it in Clause 8(j).“Online Service” means a Service which can be purchased from the DataTools Website (excluding any Services which are stated as not being capable of being purchased by use of prepayments, as indicated from time to time on the DataTools Website). “Parties” Means DataTools and the Affiliate Partner. “Party” Means DataTools or the Affiliate Partner (as applicable). “Reseller” Means an authorised individual or business, appointed as an Affiliate Partner by DataTools through which a Business End User has purchased DataTools Software. "Service" The service made available by DataTools, which allows the Business End User to make use of the Software. “Service Package” Means the Software Materials and the Service. "Software" The DataTools Software and third party software and data, together with any services made available by DataTools pursuant to this Agreement (including without limitation any Upgrades) which the Affiliate Partner is permitted to market pursuant to this Agreement. "Software Materials" The Software and associated documentation. "Subject Matter" has the meaning attributed to it in Clause 42. "Unaffected Party" has the meaning attributed to it in Clause 32. “Upgrades” has the meaning attributed to it in Clause 7.Interpretation In this Agreement, unless the context otherwise requires, the following interpretation will apply: • the headings contained in this Agreement are for convenience of reference only and shall not affect its interpretation; • words indicating the singular shall include the plural and vice versa; • the words and phrases “including” and “in particular” shall be without limitation to the generality of any preceding words and any preceding words shall not be construed as being limited to a particular class where a wider interpretation of those words and phrases is possible. Furthermore (except where already stated) such words shall be deemed to be immediately followed by the words “without limitation”; • references to “person” includes an individual, company, firm, partnership, government body, public body, charity, association, or other legal entity; • references to any statute or statutory provision shall include (i) any subordinate legislation made under it, and (ii) any provision which subsequently supersedes it or re-enacts it (whether with or without modification); • all sums payable hereunder are expressed exclusive of GST and any other applicable tax and duty payable upon such sums which shall be added if appropriate at the rate prevailing at the relevant tax point; • to the extent of any conflict or ambiguity between the provisions of the Agreement and the 3rd Party Contracts, the provisions of the 3rd Party Contracts shall prevail. Grant of licence Licence grant 1. DataTools grants to the Affiliate Partner by this Agreement a non-exclusive, non-transferable, revocable licence to: market and distribute the Software and make available the Service Package in its various forms as may be provided from time to time by DataTools and for now consisting of the options selected by the Affiliate Partner and accepted by DataTools on the DataTools Website; and a right to use (to the extent reasonably necessary for the Affiliate Partner to undertake its obligations) DataTools’ trade marks, logos and other such copyright material as provided by DataTools. However, for the avoidance of doubt, the third party software and data made available by the Licensors may only be distributed pursuant to this Agreement as part of the software or service made available by DataTools, and the third party software and data may not be distributed or made available in its own right by the Affiliate Partner. Furthermore, the Affiliate Partner expressly acknowledges that it may not use the Service Package to provide the data or functionality contained within the Service Package to any third party other than in accordance with the requirements of the Agreement and the 3rd Party Contracts. 3rd Party Licensors 2. The Affiliate Partner hereby enters into, and agrees to comply with the 3rd Party Reseller Partner Agreement. The Affiliate Partner also agrees to comply with the relevant aspects of the DataTools Third Party Agreement. Furthermore, the Affiliate Partner agrees that it will not undertake any act or omission which would result in DataTools becoming in breach of its obligations to the respective third party under the DataTools Third Party Agreement to the respective third party. Furthermore, the Affiliate Partner agrees to incorporate all copyright notices, disclaimers, wording, trademarks, logos and other marks which are required by DataTools or the Licensors to be included in respect of the Service Package. 3. The Affiliate Partner agrees that by requesting access to any third party data which is subject to a 3rd Party Reseller Partner Agreement, the Affiliate Partner is entering into such 3rd Party Reseller Partner Agreement (where this is the intention of the 3rd Party Reseller Partner Agreement), and the Licensor will therefore have rights and remedies against the Affiliate Partner pursuant to this Agreement and the 3rd Party Reseller Partner Agreement. Furthermore, the Affiliate Partner agrees that where it is entering into a 3rd Party Reseller Partner Agreement, it will bring any claims in respect of the third party data, software and services which are governed by that agreement, against the Licensor pursuant to that 3rd Party Reseller Partner Agreement and not against DataTools. Acknowledgment 4. The Affiliate Partner further expressly acknowledges that it has read and accepts the provisions contained within the 3rd Party Contracts to the extent that they have any effect on the manner in which the Service Package may be used or distributed or made available by the Affiliate Partner and used by the Business End Users. Length of agreement 5. This Agreement will continue in force until either Party gives 3 months advance notice in writing to terminate the Agreement. This Clause operates subject to the other provisions of this Agreement. Duties of the Affiliate Partner 6. The Affiliate Partner: Guidance Notes a) will comply at all times with the Guidance Notes as DataTools will publish from time to time on the DataTools Website and agrees that the Guidance Notes (and any amendments) are incorporated into this Agreement, and applies subject to the other provisions of this Agreement; Accuracy of details b) confirms that all information which it provides in its registration and any additional information which it provides pursuant to this Agreement, will at the time it is provided (and will continue to) be accurate and complete. If the information becomes inaccurate, incomplete or misleading any time thereafter, then (without prejudice to DataTools’ additional rights and remedies) the Affiliate Partner will promptly inform DataTools of this in writing, together with reasonable details in respect of this. The Affiliate Partner will also promptly update the respective details on the DataTools Website, to ensure that its details remain accurate and complete. Furthermore, the Affiliate Partner will promptly notify DataTools if it is no longer the reseller for a particular Business End User, or if it has been newly appointed as a reseller for a particular Business End User (acknowledging that DataTools only permits one reseller to be appointed to any one Business End User); Assistance to Business End Users c) will provide all reasonable assistance to the Business End User to allow the Business End User to access the respective Service Package, ensuring that the Business End User first accepts the requirement to comply with the End User Licence Agreement in order to have access to the Software Materials or Service; 3rd Party Reseller Partner Agreement d) confirms that it has read and agrees to the provisions contained within the 3rd Party Reseller Partner Agreement to the extent that it applies to the Affiliate Partner’s acts, omissions, obligations and restrictions pursuant to this Agreement; Availability of Upgrades e) will ensure that it promptly makes available any Upgrades to such of the Business End Users as DataTools shall direct; Additional terms on DataTools Website f) agrees to comply with any pricing terms on the DataTools Website; Reasonable co-operation taking into account DataTools’ obligations g) agrees to promptly provide, such reasonable information as DataTools may request from time to time, in order that DataTools can comply with its obligations pursuant to the DataTools Third Party Agreements; Relaying notices to Business End Users h) agrees to provide prompt notice to those Business End Users which DataTools indicates, regarding any termination notice served by any Licensor pursuant to the DataTools Third Party Agreements, and the consequences of this for the Business End User (which will include, without limitation, the termination of the respective Business End User’s ability to access and use any services which made use of any data or services provided by the respective Licensor); Restrictions on data cleansing i) agrees that it will not permit the Business End Users to engage in any data cleansing activities other than to the extent expressly permitted by the respective 3rd Party Contracts; No further reselling or subcontractors j) agrees that it may not provide the Software or access to the Service to any party who then directly or indirectly acts as a reseller of any part of the Software or Service; k) agrees that it may not appoint any third party agents or subcontractors in respect of its obligations pursuant to the Agreement; Fair Use l) agrees that it will inform the Business End User that DataTools may block any look ups which exceed any fair use policy that DataTools communicates (such communication can also take the form (without limitation) of a general notice on the DataTools Website or in any newsletter correspondence from DataTools) from time to time (with DataTools acting reasonably; Business End Users to have contingency measures m) agrees that it will inform the Business End User that the Business End User must ensure that its End Users have the ability to alternatively manually enter any data into any application which is reliant upon the Software or Service, in case of the unavailability of the Software and Service at any time in the future; n) agrees that it will inform the Business End User that the Business End User must use only the provided Service endpoints (Service URL) that make use of the standard DataTools load balanced service (details of how to do this are available upon request from DataTools); Affiliate Partner’s own contract for its services o) agrees that it must have in place its own contractual arrangements with its Business End Users for the services, software and data which it provides to them (for the avoidance of doubt, this is referring to services, software and data other than those made available by DataTools by way of the Service Package), ensuring that such contractual arrangements do not contradict nor conflict with the requirements of the Agreement or the EULA. Furthermore, the Affiliate Partner will ensure that its contract with the Business End Users does not impose any obligations nor liability on DataTools or its Licensors. The Affiliate Partner also agrees that it will not provide any misrepresentations in relation to the Service Package, the EULA, DataTools nor the Licensors; Visibility & access of Business End User account information p) agrees that it must ensure that the Business End Users are aware that DataTools is able to access and view the Business End User and End User account details (collectively the “End User Accounts”), to the extent reasonably necessary to ensure that DataTools can undertake its obligations to such users; q) agrees that it must ensure that its staff do not access any of the End User Accounts via the DataTools Website except to the extent necessary for the Affiliate Partner to comply with its obligations pursuant to the Agreement; Affiliate Partner’s account section on the DataTools Website r) agrees that it is the Affiliate Partner’s duty to ensure that the payment details on the Affiliate Partner’s account section on the DataTools Website are always up to date and, where appropriate, that it changes its password in the event of employees leaving, to safeguard access to the Affiliate Partner’s account against unauthorised use; s) any change in the Affiliate Partner’s banking details for payments from DataTools, need to be promptly confirmed in writing on the Affiliate Partner’s business’ letterhead paper and signed by a director or principal of the Affiliate Partner and sent to DataTools by Registered Post (with it being the Affiliate Partner’s obligation to check that such notice has been received by DataTools, in order for it to be effectively served); Agent for Business End Users t) agrees that it has the authority from its Business End Users and the BEU Third Parties: that when it undertakes any activities on the DataTools Website on behalf of the Business End Users or the BEU Third Parties; or that when it receives any communications which have an effect on the Business End Users or the BEU Third Parties; that it is acting as an authorised agent for the Business End Users and the BEU Third Parties in such respect (and consequently agrees to forward in a timely manner, any notifications intended for the Business End Users or the BEU Third Parties, to them); u) agrees that if a Business End User is permitted by the 3rd Party Contracts to allow group companies or third party entities (other than the Business End User’s customers) to make use of the Service Package (with all such Business End User’s group companies and third party entities being referred to as the “BEU Third Parties”), then the Affiliate Partner will ensure that: the Business End User is entering into the Agreement and the respective 3rd Party Contracts as principal for the Business End User and as agent for the respective BEU Third Parties, and in so doing, such Business End User is confirming the acceptance of all of the provisions and restrictions which are contained within the Agreement and the 3rd Party Contracts on behalf of itself (as principal) and accepting the same obligations and restrictions in respect of its respective BEU Third Parties (as agent for such BEU Third Parties). Hyperlink from Affiliate Partner Website to the DataTools Website v) agrees to include a reasonably prominent hyperlink in a reasonable form, on the Affiliate Partner’s main websites, blog or other means of promotion, with such hyperlink linking to the respective page on the DataTools Website, which provides further details about the respective Service Package that the Affiliate Partner is authorised to market on behalf of DataTools pursuant to this Agreement. The Affiliate Partner also agrees to include in a reasonably prominent manner and in a reasonable form, details on its main websites or other means of promotion to confirm that it is an authorised affiliate partner of DataTools for the respective Service Package that it is authorised to market on DataTools’ behalf; and Correct usage of Service Package by Business End Users w) agrees that if the Affiliate Partner has provided, suggested or recommended a Service Package to a Business End User, then it will have first satisfied itself that such Service Package is the correct Service Package for how the Business End User is planning on using the Service Package. If the Service Package is not the appropriate one for the Business End User (with the Affiliate Partner having ensured that it had first obtained details of the intended use of the Service Package by the Business End User before providing, suggesting or recommending the respective Service Package), or it is not used by the Business End User in accordance with the licensing requirements which are applicable to the use of the respective Service Package, then the Affiliate Partner will indemnify DataTools and the Licensors in full, against all claims, losses and expenses, suffered by both such indemnified parties. No circumvention x) agrees that it will not undertake any act or omission which has the objective of circumventing the intention of any of the restrictions within the Agreement or the 3rd Party Contracts. Reselling Price & Marketing y) agrees that it will not undertake any marketing or set any pricing in respect of the Service Package (whether in part or in whole) which is reasonably likely to adversely affect: (1) the marketability or reputation of the Service Package; (2) DataTools; or (3) DataTools’ other resellers or affiliate partners. Duties of DataTools 7. During the term of this Agreement, DataTools shall: a) Use its reasonable endeavours to ensure that the DataTools Software is maintained to a reasonable standard such as is comparable to that generally found in the software industry, but with the Parties acknowledging that DataTools will be entering into a direct licence agreement with the Business End Users, and it will be addressing its liability to such customers pursuant to such agreement, and therefore DataTools will not be accepting any liability for the Service Package to the Affiliate Partner in respect of any functionality, performance or availability issues with the Service Package from the Business End Users’ perspective; b) make such updates, upgrades and improvements to the Service Package (such updates, upgrades and improvements collectively being known as the “Upgrades”) available as it may in its sole discretion determine; c) use its reasonable endeavours to ensure that the relevant Service Package is available for use by the Business End Users, but it does not provide any assurance whatsoever that the Service Package will be available on an ongoing and uninterrupted basis. Fees 8. The Parties agree as follows: Entitlement to fees a) When a Business End User accepts the respective agreements for the Service Package on the DataTools Website, and DataTools receives payment for access to the respective Software or Service (subject to the provisions of Clauses 8(c) and 8(d) below), DataTools will become liable to pay the fees set out on the respective part of the DataTools Website to the Affiliate Partner. For the avoidance of doubt, the Affiliate Partner will only be entitled to Commission in respect of the credit value purchased via the Affiliate Partner’s hyperlink to the DataTools website (as provided by DataTools) for the respective Business End User at the rate payable for the Affiliate Partners Affiliate Status Level; Fee statements b) Within 14 days of the end of each calendar month, DataTools will make available a statement to the Affiliate Partner (which will be available through the affiliate area on the DataTools Website) of purchases of any rights to use the Service Package by each Business End User to determine the Affiliate Partner’s entitlement to fees; Exceptions to payment entitlement c) the Affiliate Partner agrees that no payment entitlement will arise to it in respect of any purchases of a Software licence or Service by the Affiliate Partner for its own usage; d) the Affiliate Partner agrees that DataTools will have no obligation to make any payment to the Affiliate Partner pursuant to this Agreement, until the payment entitlement of the Affiliate Partner equals or exceeds the sum of AU$100; Net value of sale e) subject to the provisions of this Agreement, the payment referred to in Clause 8(a) above, reflects a percentage of the net value of any sale which the Affiliate Partner makes (this net value is calculated as follows: gross sale value less: GST; and bank charges); and is determined by DataTools (with DataTools acting reasonably); Invoicing f) the Affiliate Partner will invoice DataTools in accordance with the respective statement made available by DataTools (provided that the amount due is at least AU$100), who will pay the Affiliate Partner within 30 days of receipt of invoice (or if later, by the end of the following month to that in which the respective statement was provided by DataTools to the Affiliate Partner); g) the Affiliate Partner acknowledges that all references to pricing details in this Agreement are expressed exclusive of GST unless otherwise expressly stated; Commission repayments h) without prejudice to DataTools’ additional rights and remedies, the Affiliate Partner will immediately repay to DataTools (by whatever method DataTools indicates) any Commission received in respect of a sale: for which DataTools makes any credit or other payment to the Business End User or a Licensor, due to the wrongful acts or omissions of the Affiliate Partner or the Business End User; or due to any changes in the 3rd Party Licence Agreements or 3rd Party Reseller Partner Agreements; or where DataTools overpaid a Commission payment; or where the Affiliate Partner was not the appointed reseller of the Business End User at the time the payment entitlement was calculated (to the extent that there is any dispute as to who was the appointed reseller of a particular Business End User at the respective time, the Business End User may determine this, with the Affiliate Partner acknowledging that the Business End User may only have one authorised reseller in relation to the Business End User’s use of the Service Package at any time); or if any form of refund is required to be made by DataTools to the Business End User. EULA related refunds i) the Affiliate Partner agrees to provide a prompt refund to the respective Business End Users for the full amount of the charges which have been paid by such Business End Users to the Affiliate Partner in relation to the Service Package, where such Business End Users have: (1) not installed or used the Service Package and have validly exercised their right to reject the EULA (in accordance with the rejection rights stated in the EULA) within the 7 day period stated in the EULA; or (2) had confirmation from DataTools that a refund or payment will be made to them pursuant to the EULA. Any elements in relation to such refund in respect of a particular Business End User which have been paid by the Affiliate Partner to DataTools will be promptly refunded by DataTools to the Affiliate Partner. The Parties also agree that in respect of such Business End Users, no Commission payments will be due from DataTools to the Affiliate Partner, and to the extent that any payments in this regard have been paid, then such payments will be promptly refunded by the Affiliate Partner to DataTools; and Commission variations j) the Affiliate Partner acknowledges that DataTools may vary the Commission from time to time (including without limitation due to the ability of certain of its Licensors to vary the charges (and any rebates) to DataTools, its customers, or its resellers, pursuant to the DataTools Third Party Agreements). The Affiliate Partner agrees that once it is informed of any such change in Commission, it will be deemed to accept such changes in the Commission if it does not reject such changes by terminating the Agreement (termination being for convenience rather than for cause or breach) in writing prior to the future date that the changes become effective from (the “New Commission Date”) (with it being the Affiliate Partner’s obligation to ensure that receipt of such written termination has been received by DataTools from the Affiliate Partner prior to the New Commission Date, in order for such termination to be valid). Confidentiality, Data Protection, Non-Solicit 9. At all times during this Agreement both Parties agree that they will keep confidential to themselves (save as provided by law and as required for them to take professional advice, or as required by them to perform their obligations pursuant to this Agreement) all confidential information with regard to this Agreement and the other Party’s customers and suppliers, unless that information has already become known to them or become known to them other than as a result of this Agreement, without a duty of confidentiality (in which case the burden of proof is upon the Party so claiming). 10. Following termination of this Agreement: a) Each Party agrees to continue to keep the confidentiality set out in Clause 9, until the relevant information is no longer confidential (other than due to a breach by either Party of its obligations pursuant to this Agreement); Non-solicit b) On the grounds that the Affiliate Partner shall by working with DataTools, have gained confidential information, and the fact that it will have received payment from DataTools for the introduction of customers to the Software or Service, the Affiliate Partner agrees for 1 year following the end of this Agreement not to offer any competing software, data or services to any of the customers which it had introduced to the Software or Service, nor to any customers of DataTools of which it becomes aware during the term of the Agreement that use any of the Software or Service; where the intent with regard to any such customers would be to solicit such customers away from DataTools’ Software or Service offering (so for the avoidance of doubt, where the intent was not to solicit such existing customers of DataTools from DataTools’s Software or Service offering, the restriction in this Clause 10(b) would not apply to prevent the Affiliate Partner offering any competing software, data or services). Without prejudice to DataTools’ rights and remedies, if the Affiliate Partner breaches this Clause 10(b), then the Affiliate Partner will immediately pay to DataTools 12 months worth of revenue equating to that which DataTools obtained or would have reasonably likely to have obtained, from the respective customers; DataTools will calculate such amount in respect of each customer as being the greater of: (1) the amount DataTools obtained from the respective customer in respect of the entire Service Package in the 12 month period immediately before the customer stopped using any part of the Service Package due to a breach by the Affiliate Partner of this Clause (such date of cessation of use by the customer being known as the “Cessation Date”); or (2) the amount forecast by DataTools that it would have obtained from the customer over the 12 month period from the Cessation Date in respect of the entire Service Package. The Parties agree that the liquidated damages referred to in this Clause are a genuine pre-estimate of the loss which DataTools would suffer, and therefore the Affiliate Partner will raise no objection to such recovery by DataTools from the Affiliate Partner. Privacy compliance 11. Each Party acknowledges that pursuant to The Privacy Act 1988 as amended by the Federal Circuit Court of Australia (Consequential Amendments) Act 2013 (Privacy Act), each party may hold private information with respect of personal data which comes into its possession. Each Party therefore agrees to process all personal data relating to a Party’s obligations pursuant to this Agreement, in accordance with the provisions of the Privacy Act, and not to undertake any act or omission which would result in either Party becoming in breach of the Privacy Act. Furthermore, the Affiliate Partner acknowledges that DataTools may need to provide information in relation to the identity of the Affiliate Partner and the Affiliate Partner’s use of the respective Service Package to the Licensors, as a requirement to allow the Affiliate Partner to distribute and use the Licensor’s data, software and materials in accordance with the provisions of this Agreement. The Affiliate Partner hereby expressly consents to such disclosure by DataTools to the Licensors pursuant to this Clause 11, and for the respective Licensors to contact the Affiliate Partner in relation to the Affiliate Partner’s use and distribution of the Licensor’s licensed data, software and other materials. Warranties DataTools warranties 12. DataTools warrants as follows: Affiliate Partner appointment a) That it has the right to appoint the Affiliate Partner as a reseller of the Software and Service in accordance with the provisions of this Agreement. DataTools Software compliance b) That the DataTools Software will materially comply with the description of the software as provided by DataTools in writing (with the Affiliate Partner acknowledging that it has had the ability to access or request such information prior to entering into this Agreement). However, the Affiliate Partner acknowledges that the 3rd Party Software is provided “as is” as it has been provided by a third party. c) In the event that the DataTools Software does not comply with Clause 12(b), and the Affiliate Partner notifies DataTools of the non-compliance, DataTools shall use reasonable endeavours to correct and provide within a reasonable period of time by patch or new release (at its option) that part of the DataTools Software which does not so comply, provided that such non compliance has not been caused by: i) any modification, variation, configuration or addition to the DataTools Software not performed by DataTools; ii) its incorrect use, abuse or corruption of the DataTools Software; or iii) use of the DataTools Software with other software or on equipment with which it is incompatible. d) DataTools warrants that any software or documentation which it provides pursuant to this Agreement which it has developed itself, will not infringe any third party’s intellectual property rights. Service unavailability issues e) DataTools warrants that it will use reasonable endeavours to remedy any non-availability of any service offered by DataTools to the Affiliate Partner pursuant to this Agreement, to the extent that this is within DataTools’ reasonable control. Exclusion of other assurances f) To the extent permitted by law, DataTools excludes all other assurances with respect to the Service Package, including but not limited to any implied assurances relating to satisfactory quality or fitness for any particular purpose. Affiliate Partner warranties 13. The Affiliate Partner agrees: Record keeping a) to maintain accurate and up-to-date records of the number and location of all copies of the Software, and make such records available upon request to DataTools or the Licensors. Furthermore, the Affiliate Partner agrees during the term of this Agreement to keep a copy of all complaints and claims regarding the Affiliate Partner generally or in relation to the Affiliate Partner’s conduct involving any part of the Service Package, and promptly communicate such details to DataTools; Prudent internal safeguards b) to have in place daily back-up and disaster recovery measures in respect of the systems and data with which the Software Materials or Service is used, and effective virus prevention measures (with the Affiliate Partner being responsible for virus scanning the Software Materials before, during and after installation and use; and the Affiliate Partner being responsible for its own virus protection measures to safeguard it against possible virus infection from use of the Service Package). The Affiliate Partner agrees to ensure that it informs the Business End Users of their obligation to undertake similar backups, disaster recovery measures and scanning as the Affiliate Partner is obliged to undertake pursuant to this Clause; c) to supervise and control use of the Service Package in accordance with the terms of this Agreement; d) to ensure that no third party who is not authorised to access the Service Package, is provided with such access by the Affiliate Partner (whether such access is provided deliberately or negligently); e) to ensure that its employees and other parties to whom it provides access to any part of the Service Package, are notified of and agree to the relevant provisions of this Agreement prior to such employee or party using any part of the Service Package; Copyright notices f) to reproduce and include the copyright notice of DataTools or such other party as may be specified in or on the Software Materials or Service on all and any copies; Reasonable skill and care obligations 14. Each Party agrees to use reasonable skill and care in undertaking its obligations. 3rd Party Software 15. The Affiliate Partner acknowledges that all of the 3rd Party Software is provided by DataTools on an ‘as is’ basis, and no assurance in respect of it is provided by DataTools (including without limitation any assurance with regard to its correctness, accuracy, completeness, fitness for any purpose, or otherwise). This exclusion of assurances applies only to the extent permitted by law. Limitations and exclusions of liability Unlimited and non-excluded liability 16. Nothing in the Agreement shall limit or exclude DataTools’ liability for: death; personal injury; fraud; fraudulent misrepresentation; and any liability which may not be lawfully limited or excluded. Exclusions of liability 17. Subject to Clause 16 and 19, DataTools shall not be liable in any circumstances to the Affiliate Partner for consequential, special, incidental or indirect losses, or the following losses whether direct, consequential, special, incidental or indirect losses: loss of profits; loss of revenue; loss of turnover; loss of sales; economic loss; loss of business or contracts; loss of anticipated savings or goodwill; loss of software or data; (or any losses arising from a claim by a third party for any of the afore-mentioned losses); whether arising under contract, statute, tort (including without limitation, negligence), or otherwise. Liability Cap 18. Subject to Clause 16, the aggregate liability of DataTools for the totality of all claims arising under or in connection with the Agreement (whether arising under contract, statute, tort (including without limitation negligence) or otherwise) shall be limited to payment of the greater of; (1) AU$500; or (2) the Commission which is due pursuant to the provisions contained within this Agreement (“Liability Cap”). 19. Clause 17 will not operate to exclude or restrict DataTools’ obligation to pay the Commission in accordance with the other Clauses of the Agreement. 20. The Affiliate Partner acknowledges that the Commission has been calculated on the basis that DataTools will exclude and limit its liability as set out in the Agreement. 21. The Parties agree that the limitations and exclusions of liability in the Agreement are reasonable in view of the negotiated position which has been reached on the Agreement. 22. All limitations and exclusions of liability in the Agreement operate in respect of all claims arising under or in connection with the Agreement, whether arising under contract including without limitation, in relation to any deliberate repudiatory and fundamental breaches), statute, tort (including without limitation negligence), or otherwise. 23. Neither Party (“Innocent Party”) shall be liable to the other Party (the “Guilty Party”) for any failure by the Innocent Party to comply with its obligations under the Agreement as a result of any act or omissions of the Guilty Party or where such failure arises as a result of the Innocent Party's compliance with any instruction or direction of the Guilty Party. Limitation Period 24. Subject to Clause 16, the Parties agree that DataTools shall not be held liable to the Affiliate Partner for any loss and/or damage suffered or incurred as a result of: any claims under or in connection with the Agreement, which are not brought through legal proceedings against DataTools within 12 months following the earlier of: (1) when the cause of action arose; and (2) termination of the Agreement. 25. Each Party agrees that in respect of any claim or potential claim against the other Party, it will: a) notify the other Party promptly of such claim or potential claim, together with reasonable details; b) give the other Party reasonable assistance in connection with the investigation of any such claim; and c) use reasonable endeavours to mitigate its losses arising in relation to such claim. Affiliate Partner’s Indemnity 26. The Affiliate Partner agrees that if DataTools is required to pay any sums to any third party as a result of the Affiliate Partner breaching the Agreement or the 3rd Party Contracts, then the Affiliate Partner will, immediately upon notice, reimburse DataTools in full with the amount which DataTools has had to pay to such third party as a result. Termination Material breach 27. Either Party may terminate this Agreement immediately upon notice in writing to the other Party in the event that the other Party commits a breach of its obligations under this Agreement and: a) such breach is a material breach of the Agreement and cannot be remedied; or b) such breach is a material breach of the Agreement and possible to remedy or is a persistent breach and in either case that other Party fails to remedy such breach within 14 days of having been required in writing to remedy such breach. Insolvency types of events 28. Either Party may terminate this Agreement immediately upon notice in writing to the other Party (the “Defaulting Party”) in the event that: a) the Defaulting Party is unable to pay its debts as they fall due or otherwise becomes insolvent, or if a receiver or an administrative receiver is appointed over any or all of the assets of the Defaulting Party, or if any arrangement, compromise or composition of the Defaulting Party’s debts is proposed or made by the Defaulting Party, or if the Defaulting Party enters or is entered into any proceedings for administration or liquidation or otherwise becomes subject to dissolution proceedings, or if any analogous event occurs in any other jurisdiction in which the Defaulting Party carries out its business; or b) the Defaulting Party suffers or undergoes any procedure similar in effect to any of those specified in Clause 28(a). DataTools’ termination rights 29. DataTools may terminate the Agreement (or at its discretion, any obligation to provide any part of the Software Materials or Service), immediately upon written notice (or upon such amount of notice as DataTools decides in its sole discretion): a) if DataTools reasonably believes that the Affiliate Partner’s acts or omissions may adversely affect the brand or reputation of DataTools or the Software Materials or Service or Licensors; b) if any third party agreement pursuant to which DataTools is permitted to make available the Software Materials or Service to the Affiliate Partner or Business End Users: (1) changes so that it adversely affects DataTools, the Affiliate Partner or the Business End Users; or (2) terminates; c) if the Licensors require this Agreement to be terminated in whole or in part; d) if any of the Licensors claim that the Affiliate Partner has breached this Agreement or any of the 3rd Party Contracts; e) if the Affiliate Partner refuses to accept any mandatory requirement imposed from time to time by any of the Licensors; f) where such termination is necessary for DataTools to comply with the DataTools Third Party Agreements; g) the Affiliate Partner refuses to accept any revised Commission arrangements prior to the New Commission Date, pursuant to the requirements of Clause 8(j); h) the Affiliate Partner discloses any confidential information of the Licensors or DataTools in breach of this Agreement; i) if any of the Business End Users breach the EULA; j) if any of the Licensors or DataTools claim that the Business End Users are not using the Software Materials in accordance with the requirements of, or the intention of, the EULA; or k) if any of the Business End Users complain regarding the performance or conduct of the Affiliate Partner, or the quality of the service provided by the Affiliate Partner. 3rd Party Reseller Partner Agreement termination 30. The respective 3rd Party Reseller Partner Agreement will automatically terminate with immediate effect if the corresponding DataTools Third Party Agreement is terminated, and consequently this Agreement will automatically terminate with immediate effect in respect of the terminated part of the Service Package (being that part of the Service Package which related to the terminated 3rd Party Reseller Partner Agreement and/or DataTools Third-Party Agreement). DataTools will provide prompt notice of any such termination. Consequences of Termination 31. The Parties agree as follows: a) The termination of this Agreement shall be without prejudice to the rights and remedies of either Party which have accrued up to the date of termination. b) The provisions of this Agreement which are expressed to or intended to survive termination, shall survive termination and continue in effect. c) Within 7 days after the date of termination of this Agreement for whatever reason, the Affiliate Partner agrees to destroy or return the Software Materials in its possession or control, in the reasonable manner directed by DataTools, and certify this in writing to DataTools as having been completed. General Provisions Force Majeure 32. If either Party (the “Affected Party”) is prevented from complying with its obligations due to an event beyond its reasonable control (an event beyond a Party’s reasonable control being known as “Force Majeure”), it shall not be in breach of this Agreement or otherwise liable to the other Party (the “Unaffected Party”) by reason of any delay in performance or non-performance of any of its obligations due to such events. 33. If such Force Majeure persists for a continued period of 30 days, then the Unaffected Party shall be entitled whilst the Force Majeure persists, to terminate this Agreement for convenience, immediately upon notice to the Affected Party. Assignment and Sub-contracting 34. The Affiliate Partner agrees that it may not: assign, delegate, sub-contract, transfer or otherwise dispose of any of its rights or responsibilities under this Agreement without the prior written consent of DataTools. 35. DataTools may assign, delegate or sub-contract its rights or responsibilities under this Agreement to any third party. Rights of Third Parties 36. The Licensors shall, to the extent permitted by law, have the right to enforce the provisions of this Agreement which are for their benefit. No other third party shall have the right to enforce any term of this Agreement. 37. The Parties may vary or terminate this Agreement (in whole or in part) without requiring the consent of the Licensors. Relationship 38. Nothing in this Agreement shall create, or be deemed to create, a partnership or joint venture or relationship of employer and employee or principal and agent between the Parties to this Agreement. The Affiliate Partner agrees that it is acting only as a marketing representative of DataTools in respect of the Service Package, and agrees that it will not bind or give rise to any liability for DataTools to any third party, other than as expressly permitted by this Agreement. Variations 39. No variation of this Agreement (other than as provided for in this Agreement) shall be effective unless it is in writing and is signed by an authorised representative of each Party, or unless the variation is agreed by the Parties by email with express reference being made to the fact that it is varying this Agreement. Severability 40. If at any time any part of this Agreement becomes void or unenforceable under any applicable law it shall be deemed to be deleted from this Agreement and the remaining provisions of this Agreement shall continue unaffected. In such circumstances, the Parties shall promptly replace the deleted provision with a substituted provision which achieves as close as lawfully and reasonably possible, the intention of the deleted provision. No Waiver 41. No provision of the Agreement shall be waived unless agreed to be waived by both Parties in writing (except where there is a prescribed time limit in which to exercise a right or remedy, in which case the elapsing of the time limit will constitute a waiver of the respective right or remedy). If any provision is waived, then that waiver shall operate for that instance only and not future instances, unless agreed otherwise by both Parties in writing. Entire Agreement 42. This Agreement contains the entire agreement between the Parties with respect to the subject matter of this Agreement (the “Subject Matter”) and supersedes and replaces all other written and oral communications between the Parties relating to the Subject Matter. Except for the express provisions in this Agreement (and any express provisions contained in any documentation which is expressly incorporated), all other warranties, conditions, terms, representations, statements, undertakings and obligations whether express or implied by statute, common law, custom, usage or otherwise are hereby excluded to the maximum extent permitted by law. The Parties hereby confirm that they have not relied upon any representations, communications or other matters which have not been expressly stated in this Agreement, whether as an inducement to enter into this Agreement or otherwise. This Clause 42 operates subject to Clauses 43 and 44 43. Notwithstanding any provision to the contrary in this Agreement, all implied: terms, conditions and warranties, (including without limitation those relating to satisfactory quality and fitness for purpose); whether (1) implied by statute, common law, custom, usage or otherwise, or (2) otherwise sought to be expressly incorporated (including without limitation where sought to be incorporated by any express provision of this Agreement) are hereby excluded to the maximum extent permitted by law. This Clause 43 operates subject to Clause 44 44. Notwithstanding any provision to the contrary, nothing in this Agreement limits or excludes either Party’s liability for fraudulent misrepresentations. Law and Jurisdiction 45. This Agreement and any dispute or claim arising in connection with it shall be governed by the laws of New South Wales and shall be subject to the exclusive jurisdiction of the Courts of New South Wales to which the Parties irrevocably submit. I have read and accept the Affiliate terms & conditions