LEXIMANCER SaaS AGREEMENT
TERMS AND CONDITIONS
This agreement is made between you, the licensee and end user (Client) and Leximancer Pty Ltd ACN 116 218 109 (Leximancer). By accessing LexiPortal, you agree to be bound by these terms and conditions.
1. BACKGROUND
(a) Leximancer operates LexiPortal and owns the Licensed Software.
(b) Leximancer has agreed to grant the Client Access to LexiPortal in accordance with this agreement.
2. NATURE OF AGREEMENT
These Leximancer Software Terms form the entire agreement between Leximancer and the Client and supersede any previous agreements, discussions, representations and understandings.
3. TERM
(a) This agreement will commence on the date that the Client performs any of the acts outlined in 3(a)(i)-3(a)(ii) (Commencement Date).
(ii) The Client is granted access to LexiPortal.
This agreement will terminate upon expiry of the Term, or as otherwise terminated in accordance with these Leximancer Software Terms.
(b) Subject to clause 3(c), the Term will automatically renew at the end of the relevant subscription period subject to the Client paying the Fees applicable for the next period.
4.1 Grant of Licence
(b) Where the Client subscribes for a Commercial Licence, Leximancer grants to the Client a non-exclusive, non-transferrable Licence to use LexiPortal on the terms and conditions set out in this agreement.
(c) Where the Client subscribes for the Topic Guide Licence, Leximancer grants to the Client a non-exclusive, non-transferable Licence to use Topic Guide on the terms and conditions set out in this agreement.
4.2 Nature of Academic Licence
The Client acknowledges that the scope of the Academic Licence granted to the Client in accordance with clause 4.1(a) is limited to the non-commercial use of the Licensed Software by the Client for academic research purposes. The scope of the Academic Licence does not extend to the use of the Licensed Software for any Commercial Purpose. For the sake of clarity, consulting work conducted by a Client who is utilising an Academic Licence to perform this work is in breach of the terms of this Agreement.
5. DELIVERY AND ACCESS
(a) Subject to clause 5.2, Leximancer will provide the Client Access to LexiPortal on and from the Commencement Date.
(b) Subject to clause 5.2where the Client has been granted a Licence to use LexiPortal, Leximancer will provide Access to the Client from the Commencement Date on a non-exclusive and non-transferable basis.
(c) The Client must procure that any Authorised User complies with the terms of this agreement and is responsible for any breach thereof by an Authorised User.
(d) The Client acknowledges that:
(i) an Authorised User may be required to accept additional terms of use between the Authorised User and Leximancer in order to access or use the Licensed Software; and
(ii) if the Authorised User does not accept such terms or use as or when required, Leximancer may withhold access or use of the Licensed Software to the Authorised User or require that the Client withhold such access or use by the Authorised User.
(e) From time to time Leximancer may (but is not obligated to) update the Licensed Software. Once the Licensed Software has been updated the licence and provision of the updated software by Leximancer to the Client will be governed in accordance with the terms of this agreement.
(a) The grant of Access to the Client to the Licensed Software by Leximancer pursuant to clause 5.1 is conditional upon the Client:
(i) ensuring the compliance of all of its Authorised Users with the terms of this agreement; and
(ii) payment by the Client of all Fees owing to Leximancer pursuant to this agreement.
(b) In accessing and using the Licensed Software the Client must:
(i) only use the Licensed Software in accordance with this agreement and the Specifications;
(ii) comply with all reasonable and lawful directions that Leximancer may give from time to time with respect to the Client’s use of the Licensed Software;
(iii) only use the Licensed Software in the ordinary operation of its business and must not grant or purport to grant, or convey, any right to any third party, to use or commercialise the Licensed Software; and
(iv) cooperate with Leximancer in any remediation of any security, unauthorized use or misuse of the Licensed Software and promptly report to Leximancer all such matters of which the Client becomes aware.
(c) In accessing and using the Licensed Software the Client must not:
(i) allow or engage any third party to work on the Licensed Software without first obtaining Leximancer’s written consent which Leximancer may withhold in its sole discretion;
(ii) interfere or disrupt the operation of the Licensed Software nor attempt to do the same;
(iii) grant access to the Licensed Software to anyone other than its Authorised Users, unless Leximancer has provided the Client with Leximancer’s express written consent;
(iv) access or use any data other than the Client’s own data or data which it has a right to access and use;
(v) subject to any right under sections 47B, 47C, 47D, 47E or 47F of the Copyright Act 1968 (Cth), either directly or indirectly, modify, attempt to decompile, cross compile, disassemble, reverse engineer, or use any other means to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Licensed Software; or
(vi) challenge the ownership, registration, or validity, of any Intellectual Property Rights in or to the Licensed Software,
or solicit or enable (including by omission) another person to do any of these.
6. TRAINING, SOFTWARE SUPPORT AND MAINTENANCE
(b) For the avoidance of doubt, Leximancer is under no obligation to provide Additional Services, unless otherwise agreed in writing.
(c) If Leximancer has agreed to provide Additional Services, it will provide the Additional Services in accordance with the terms of this agreement and in a professional manner with due care, skill and diligence.
7. CLIENT RESPONSIBILITIES
7.1 Data
(a) When using LexiPortal the Client is responsible for collecting and Uploading the Client Data.
(b) The Client acknowledges and agrees the Client will comply with all Laws in connection with the Client Data.
(c) The Client acknowledges that LexiPortal uses a Data Host.
(e) The Client acknowledges and agrees that in the case of LexiPortal, the Client Data and Leximancer Outputs will be stored on third party servers which may be located outside of Australia and outside of the European Union.
(f) The Client acknowledges and agrees that it is solely responsible for all Uploaded Client Data to LexiPortal, and Leximancer has no control of the types of information or materials that form part of the Uploaded Client Data.
(g) The Client acknowledges that in order to utilise the Licensed Software the Client Data must conform to the Data Specifications.
(h) In the case of LexiPortal, the Client acknowledges that Leximancer may impose limitations upon the volume and nature of the Client Data that can be uploaded in order to ensure the continuous and effective operation of LexiPortal, and the Client will adhere to such limitations.
(i) the services available through the Licensed Software may not be able to be provided, or if provided may be adversely affected;
(ii) Leximancer may require that the Client alter any Client Data so that it conforms with the Data Specifications; and / or
(iii) Leximancer may require the Client to reconfigure the project parameters selected in the Licensed Software.
(iv) Leximancer may delete the Client Data and Leximancer Outputs in order to maintain the integrity of the LexiPortal service.
(j) Without limiting clause 7.1(d), the Client must not Upload any Client Data if doing so would breach any privacy Laws or other Laws, or any privacy guidelines, rules or policies issued by any governmental, statutory or regulatory body. Leximancer may delete, or suspend the Client's access to:
(i) any Client Data that is Uploaded to LexiPortal in contravention of this clause; or
(ii) any Leximancer Outputs created using such Client Data.
(k) Leximancer will not be liable to the Client for any Loss suffered due to:
(i) the services available through the Licensed Software not being provided or not being available or effective;
(ii) any suspension or termination of access to LexiPortal or the Licensed Software;
(iii) any error in or corruption of Client Data (including Uploaded Client Data);
(iv) the Leximancer Outputs not being in any particular required form or format or including any particular information;
(v) any deletion of Client Data (including Uploaded Client Data); or
(vi) any other act or omission of Leximancer required by operation of any Law.
(l) The Client acknowledges and agrees that Leximancer may take such action as it considers necessary, including suspension or termination of the Client’s Access, or the Access of an Authorised User, to LexiPortal where the Client Uploads data that does not meet the Data Specifications or where the Client or an Authorised User otherwise misuses LexiPortal (including with regard to the appropriate configuration of project parameters).
(m) Leximancer will not be liable and the Client releases and holds Leximancer harmless from any Loss the Client may suffer as a result of Leximancer exercising its rights in accordance with clause 7.1(i) or 7.1(k)
(n) The Client, upon Uploading the Client Data, grants Leximancer a perpetual, worldwide, non-exclusive royalty free, transferable (and sub licensable) license and right to use the Client Data in accordance with this agreement and for the purpose of giving effect to the Licensed Software, provided Leximancer complies with all of its confidentiality obligations under clause 12.
(p) Leximancer acknowledges and agrees that:
(i) it does not obtain ownership of any Intellectual Property Rights in the Client Data; and
(ii) where the Client Data is held or stored by Leximancer, it is held on the Client’s behalf.
(q) Clause 7.1(o) does not apply to any data or information created by Leximancer in the course of the Client's use of LexiPortal (including any analytics or know-how) not directly comprising Client Data. Any Intellectual Property Rights subsisting in such data and information is and at all times remains the property of Leximancer.
The Client represents, warrants and undertakes that:
(a) the Client owns or has an unrestricted right to use all Client Data that is Uploaded by the Client or on the Client’s behalf, including the right to authorise Leximancer to store and use the data in the performance of its obligations under this agreement or as otherwise permitted pursuant to the terms of this agreement;
(b) Leximancer is authorised to use and store the Client Data that has been Uploaded for the performance of its obligations under this agreement or as otherwise permitted pursuant to the terms of this agreement;
(c) Leximancer's use and storage of Client Data for the performance of its obligations under this agreement or as otherwise permitted pursuant to the terms of this agreement will not cause Leximancer to breach or fail to comply with any Laws or to otherwise breach the rights of any third party;
(d) the Client has the capacity and authority to enter into and to perform its obligations under this agreement; and
(e) the terms of this agreement have been accepted by a duly authorised representative of the Client and accordingly the terms of this agreement legally bind the Client.
7.3 Client Acknowledgements
(a) The Client acknowledges and agrees that:
(i) computer and telecommunications services are not fault free and occasional periods of downtime may occur;
(ii) Leximancer has not made any representations or warranties that the Licensed Software or any Leximancer Outputs will be error free, free of viruses or available without interruption; and
(iii) total data usage, which includes source documents and generated project analysis outputs, is limited by the Client's subscription plan. Leximancer reserves the right to suspend access to an account if these data limits are exceeded. Leximancer reserves the right to delete excess data.
(b) In addition to any other rights or remedies Leximancer may have, Leximancer may suspend or terminate any Authorised User’s access to the Licensed Software at any time and without any liability to the Client in the event the Client or any Authorised User breaches any provision of this agreement or if otherwise necessary to protect the LexiPortal service.
(c) The Client will assist Leximancer in meeting its GDPR obligations in respect of Agreement Personal Data.
8. LEXIMANCER’S RESPONSIBILITIES
8.1 Responsibilities
(a) Leximancer will:
(i) comply with the Privacy Act and any other privacy Laws applicable to Leximancer;
(ii) provide reasonable notice of scheduled maintenance to the Licensed Software;
(iii) use reasonable security systems and procedures to safeguard and to prevent unauthorised third party access to the Client Data; and
(iv) ensure that the Licensed Software will be provided in accordance with the agreement and applicable Laws.
9. INTELLECTUAL PROPERTY RIGHTS
(a) Each Party retains all right, title and interest in and to its pre-existing Intellectual Property Rights.
(b) Nothing in this agreement is to be construed as effecting an assignment of ownership of Intellectual Property Rights subsisting in Client Data from the Client to Leximancer.
(c) Nothing in this agreement affects any Moral Rights subsisting with respect to the Licensed Software.
(d) Leximancer owns all Intellectual Property Rights to the Licensed Software including all improvements to the Licensed Software that are suggested by the Client.
(e) For the avoidance of doubt, nothing in this agreement prohibits Leximancer from using Leximancer’s pre-existing Intellectual Property Rights to provide services to third parties, even if such services are the same or substantially the same as those provided to the Client.
(f) If, notwithstanding clause 5.2(c), the Client asserts or obtains any right, title, or interest in any Intellectual Property Rights in or to the Licensed Software including any adaptations, modifications, or derivatives of the Licensed Software, the Client assigns all present and future right, title and interest (including the right to take action for past infringement) in such Intellectual Property Rights to Leximancer on and from creation. Upon request by Leximancer, the Client will sign all documents and do all other things reasonably required to give effect to this clause.
10. FEES, CHARGES AND PAYMENTS
10.1 Fees
(a) In consideration of Leximancer granting the Client the Licence in accordance with clause 4, the Client will pay to Leximancer the Fee.
(b) The Client acknowledges and agrees that Leximancer may increase the Fees from time to time.
(c) Where Leximancer is increasing the Fees in accordance with clause 10.1(b), Leximancer will provide the Client with Notice and the increase will not take effect before the end of the then current subscription Term.
(d) If the Client does not agree to the increase in Fees proposed by Leximancer, the Client may terminate the automatic renewal of its subscription.
(e) Where the Client has requested and Leximancer has agreed to provide Additional Services, Leximancer must provide the Client with an estimate of costs prior to providing such Additional Services. The Client must pay to Leximancer the additional fees for those services in the manner directed by Leximancer.
10.2 Expenses
Any costs and reasonable out-of-pocket expenses which are necessary to provide Access to the Licensed Software or Additional Services (Expenses) will be paid or reimbursed (as the case may be) by the Client where Leximancer has received prior written approval from the Client regarding the incurring of the Expenses and will submit documentation as evidence as is reasonably required by the Client to verify the Expenses that have been incurred.
10.3 Disputed Fee
(b) Within a reasonable time of receiving the notice, Leximancer will address the Client’s reasons of dispute, to enable a prompt and amicable resolution.
(c) If the dispute cannot be resolved within seven (7) days of Leximancer providing a written response to the notice received under paragraph 10.3(a), then the dispute must be referred to the dispute resolution procedure contained in clause 16.
10.4 Late Payment
If the Client fails to pay any Fees, charges or other payment within the time required under this agreement Leximancer may:
(a) charge interest on the overdue amount at the Default Rate as from the first day that payment is overdue; and
(b) charge the Client for all costs and expenses incurred by Leximancer in recovering Leximancer’s outstanding Fees from the Client, including legal fees (on a solicitor and own client basis) and court costs, which the Client must pay upon demand.
10.5 GST
Unless otherwise expressly stated, all amounts under this agreement are exclusive of all GST and other taxes, duties and customs. If any GST or other taxes, duties or customs are imposed on any supply made under or in accordance with this engagement and such taxes, duties or customs have not been accounted for in determining the consideration payable for the supply, then Leximancer may recover from the Client an amount on account of those taxes, duties or customs.
11. REPRESENTATIVES
11.1 Authorised Representative
The Client must:
(a) appoint an Authorised Representative who will be responsible for the oversight of this agreement (Representatives’ Purpose);
(b) ensure its Authorised Representative co-operates with any request made by Leximancer in respect of anything related to this agreement; and
(c) give Leximancer Notice any time that the Authorised Representative is replaced or their details change.
11.2 Authority
The Client:
(a) covenants that the Authorised Representative has full authority to act on the Client’s behalf in any way relating to the Representatives’ Purpose;
(b) acknowledges and agrees that Leximancer may rely on any written representation, direction or communication made by the Authorised Representative that relates to the Representative’s Purpose, as if the Authorised Representative were the Client; and
(c) must release and hold Leximancer harmless from Leximancer relying upon or following all and any such direction or representation.
12. CONFIDENTIALITY AND RESTRICTIONS
12.1 Recipient must keep Confidential Information confidential
Each party must keep confidential all Confidential Information of the other party and only use any such Confidential Information for the purpose of giving effect to and utilising the Licensed Software in the manner contemplated by this agreement.
12.2 Disclosure exceptions
The obligations in clause 12.1 do not apply:
(a) to the extent necessary to enable a party to make any disclosure required by law (including the rules of any stock exchange);
(b) to the extent necessary to enable a party to perform its obligations under this agreement (provided that any further person to whom the other party's Confidential Information is disclosed is themselves under an obligation of confidentiality);
(c) to any disclosure agreed in writing between the parties;
(d) to information independently created by a party other than in reliance on the other party's Confidential Information; or
(e) in respect of any portion of the Confidential Information which has entered the public domain other than as a result of a breach of this agreement.
13. TERMINATION
13.1 Termination Generally
(b) Termination in accordance with clause 13.1(a) becomes effective upon the implementation date of the proposed increase and the Client remains bound by all of its obligations under this agreement, including its obligations to pay to Leximancer the Fees, up until the termination date being the date of implementation of the increased fees.
13.2 Termination for breach
Either Party may, without prejudice to its other rights or remedies, terminate this agreement with immediate effect by written notice to the other party, in the event of:
(a) any material breach of the agreement by the other party which is not remedied within 30-days after the service on the party in default of a written Notice specifying the nature of the breach and requiring that the same be remedied;
(b) subject to Law, the other party becoming Insolvent; or
(c) the other party becoming subject to a Change of Control.
Upon termination or expiry of this agreement:
(a) Leximancer may, at its discretion, delete all Client Data in its possession after 14 days from expiry or termination of this agreement;
(b) the Client must pay all outstanding Fees and any other payments due to Leximancer under this agreement;
(c) each party must, upon request from the other party, destroy or permanently delete the other party’s Confidential Information received pursuant to this agreement (unless this agreement expressly provides such Confidential Information can be retained post termination or such Confidential Information must be retained for regulatory or legal compliance) and certify such destruction in writing. The Client acknowledges that back-up and disaster recovery information is stored in multiple data centres and that Leximancer cannot destroy archival copies immediately upon request. However, such back-up and disaster recovery information will be deleted as a matter of course; and
(d) any accrued rights or liabilities of either Party or any provision of the agreement which is expressly or by implication intended to come into or continue in force on or after such termination will not be affected.
(a) The Client agrees to indemnify Leximancer and keep Leximancer indemnified against any Loss that may be incurred by Leximancer arising from or in connection with:
(i) any breach or default by the Client of this agreement (including any breach of warranty);
(ii) a negligent act or omission by the Client or by a party the Client is responsible for;
(iii) the Client’s failure to comply with any Law;
(iv) the Client’s failure to comply with its contractual obligations to any third party insofar as such obligations arise or relate to the use by the Client of the Licensed Software;
(v) the failure of a party the Client is responsible for (including any Authorised User) in complying with any Law;
(vi) any Claim made against Leximancer by any third party who hosts the Licensed Software or the Client Data, or who provides software or services to Leximancer in connection with the provision of the Services, as a result of an act or omission by the Client or resulting in any way from the Upload of Client Data;
(vii) any compensation paid to a Data Subject under the relevant provisions of the Data Protection Laws, in particular the portion of the compensation which corresponds to the Client's responsibility for the damage suffered by the Data Subject in connection with any breach by the Client of any of its obligations under this agreement (including any failure or delay in performing, or negligent performance or non-performance of, any of those obligations); or
(viii) any act of Leximancer in order to prevent any breach of any applicable Law where such breach arose, or in Leximancer's reasonable opinion was likely to arise, as a result of an act or omission of the Client or any party for whom the Client is responsible (including Authorised User), including Uploading any Client Data which itself breaches any Law.
(b) The indemnity provided to Leximancer by the Client in accordance with clause 14.1 will be reduced proportionately to the extent that any Loss incurred by Leximancer is contributed to by the negligent acts or omissions of Leximancer.
14.2 Exclusion of liability
To the maximum extent permitted by Law, Leximancer will not be liable for any ordinary, incidental, consequential or special loss or damage (including but not limited to loss of profits, loss of revenue, loss of anticipated profit, loss of opportunity, loss or corruption of data, and loss of personnel) arising out of this agreement or the use of the Licensed Software even if Leximancer were appraised of the likelihood of such loss or damage occurring.
14.3 Limit of liability
(a) Except as expressly provided by this agreement, the Licensed Software is provided on an “as is” basis without any representation, warranty or guarantee as to quality, condition or fitness for purpose and Leximancer does not warrant that the Licensed Software will be free of defect, uninterrupted, accurate, complete, current, stable, bug free, error free or available at any time in respect of its operation.
(b) Leximancer’s liability in damages in respect of any act or omission of Leximancer in connection with the Licensed Software, LexiPortal or its obligations under this agreement will not exceed the total Fees received by Leximancer from the Client in the immediately preceding six (6) months from when the cause of action arose.
(c) Leximancer has no responsibility or liability whatsoever as a consequence of any Loss suffered by the Client as result of:
(i) any of the Client Data or Leximancer Outputs being lost, destroyed or damaged by the Licensed Software or a third party provider of cloud based storage, cloud infrastructure or hosting;
(ii) any third-party software malfunctions; or
(iii) malfunctions in the Licensed Software..
14.4 Exclusion of other Terms
(a) Subject to clause 14.4(b), any condition, guarantee or warranty which would otherwise be implied in this agreement is hereby excluded.
Any notices given under or in connection with this agreement:
(a) must be in legible writing and in English;
(b) must be, in the case of Leximancer, sent by email to contact@leximancer.com, or as otherwise notified by Leximancer to the Client;
(c) must be, in the case of the Client:
(i) issued via the Licensed Software to the Client's account; or
(ii) sent by email to that party’s email address (as provided to Leximancer when subscribing);
(d) will be deemed to be received by the addressee:
(i) if sent by email, at the time that would be the time of receipt under the Electronic Transactions Act 1999 (Cth); or
(ii) if sent via the Licensed Software at the time it is sent,
provided that, if a notice is received after 4.00pm on a Business Day, it is deemed to be received at 9.00am on the following Business Day.
(a) If a dispute arises out of or relates to this agreement (Dispute) a party to the agreement may not commence any court or arbitration proceedings relating to the Dispute unless it has complied with this clause, except where the party seeks urgent interlocutory relief.
(b) A party claiming that a Dispute has arisen must give a Notice (Dispute Notice) to the other party or parties to this agreement specifying the nature of the Dispute. The parties must then negotiate in good faith to resolve the Dispute expeditiously.
(c) If the Parties do not resolve the Dispute within fourteen (14) days of receipt of the Dispute Notice (or such further period as agreed in writing by them) any party to the Dispute may refer the Dispute to mediation by a mediator nominated by the President or the nominee of the President for the time being of the Queensland Law Society.
(d) Each party must bear its own costs in connection with resolving the Dispute and the parties must bear equally the costs of any mediator engaged.
(e) Any information or documents disclosed by a party under this clause must be kept confidential and may not be used except to attempt to resolve the Dispute.
(f) If the parties do not resolve the Dispute within fourteen (14) days following the date of the mediation, a party may terminate the Dispute resolution process under this clause by notice in writing to the other party.
(g) If a party does not comply with this clause, the other party need not comply with this clause.
17.1 Consent
The Client consents to:
(i) Leximancer using, disclosing and otherwise handling the Client's personal information in accordance with the Privacy Policy; and
(ii) the disclosure of the Client's personal information outside of Australia on the understanding that:
A. if overseas recipients handle the personal information in breach of the Australian Privacy Principles as prescribed by the Privacy Act, the overseas recipients will not be accountable under the Privacy Act, and the Client will not be able to seek redress under the Act;
B. the overseas recipient may not be subject to privacy obligations or any principles similar to the Australian Privacy Principles; and
C. individuals may not be able to seek redress in some overseas jurisdictions, and overseas recipients may be subject to a foreign law that could compel the disclosure of personal information to a third party such as an overseas authority.
If Leximancer reasonably believes that a notifiable data breach (as defined in the Privacy Act) has occurred and which affects or may affect the Client:
(i) Leximancer will investigate the data breach and inform the Client of the breach and the outcome of Leximancer's investigation;
(iii) Leximancer will provide the Client with reasonable assistance to comply with clause 17.2(ii)
17.3 Offshore data protection
(i) In so far as any Client Data constitutes Personal Data which is subject to the GDPR, the parties agree that:
A. the Client will inform Leximancer in writing before Uploading the relevant Client Data;
B. Leximancer may inform the Client that it must comply with clause 7.1(d) or not Upload specific Client Data, or any general categories of Client Data, and if Leximancer does so inform the Client, the Client must not Upload the Client Data specified by Leximancer and the Licence will not extend to such use of the Licensed Software; and
C. the parties agree to enter the terms of the Data Transfer Addendum which will be incorporated into this agreement.
18.1 Essential terms
Clauses 7.1, 10, 12 and 17 are essential terms of this agreement.
18.2 Amendments
This agreement may only be varied by a further written agreement signed by or on behalf of each of the parties.
18.3 Force Majeure
Neither party will be liable for any delay or failure to perform its obligations pursuant to this agreement if such delay is due to Force Majeure. If a delay or failure of a party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that party’s obligations will be suspended. If a delay or failure by a party to perform its obligations due to Force Majeure exceeds thirty (30) days, either party may immediately terminate this agreement by providing Notice to the other party.
18.4 Assignment
(a) Leximancer may, upon Notice in writing to the Client, assign or otherwise transfer the benefit of all or any part of this agreement to any other person or entity.
(b) No rights, benefits or liabilities relating to this agreement may be assigned, novated or otherwise transferred by the Client without Leximancer’s prior consent.
18.5 Consents
Unless this agreement expressly states otherwise, a party may in its absolute discretion, give conditionally or unconditionally or withhold, any consent under this agreement. To be effective any consent under this agreement must be in writing.
18.6 Costs
Each party will pay their respective costs and expenses in connection with the negotiation, preparation, execution, and performance of this agreement.
18.7 Entire Agreement
This agreement contains the entire agreement between the parties about its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this agreement and has no further effect. The Client warrants that it has not relied on any representation made by Leximancer which has not been stated expressly in this agreement.
18.8 Further acts
Each party must promptly do all further acts and execute and deliver all further documents required by law or reasonably requested by another party to give effect to this agreement.
18.9 Jurisdiction
This agreement is governed by the law in force in the State of Queensland, Australia and each party submits to the non-exclusive jurisdiction of the courts of Queensland, Australia and the courts competent to determine appeals from those courts, in relation to any proceedings that may be brought at any time relating to this agreement.
18.10 No Merger
No right or obligation of any party will merge on completion of any transaction contemplated by this agreement.
18.11 Severability
Any provision of this agreement that is illegal, void or unenforceable will be severed without prejudice to the balance of the provisions of this agreement which shall remain in force.
18.12 Survival
Clauses 7.2, 9, 10, 12, 13.3, 14, 16, 17, 18 and 19 of these Leximancer Software Terms survive the expiration or earlier termination of the Term.
18.13 Waiver
(a) Failure to exercise or enforce or a delay in exercising or enforcing or the partial exercise or enforcement of any right, power or remedy provided by law or under this agreement by any party will not in any way preclude, or operate as a waiver of, any exercise or enforcement, or further exercise or enforcement of that or any other right, power or remedy provided by law or under this agreement.
(b) Any waiver or consent given by any party under this agreement will only be effective and binding on that party if it is given or confirmed in writing by that party and no waiver of a breach of any term of this agreement will operate as a waiver of another breach of that term or of a breach of any other term of this agreement.
19. DEFINITIONS AND INTERPRETATION
19.1 Definitions
In this agreement:
Academic Licence means a licence granted by Leximancer to the Client to utilise the Licensed Software in accordance with the terms of this agreement and only for academic research purposes and not for any Commercial Purpose.
Access means a grant of access to the Client for it to use the Licensed Software on the terms specified in these Leximancer Software Terms.
Additional Services has the meaning given to that term in clause 6(a).
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Authorised Representative means the person appointed by the Client to oversee this agreement in accordance with clause 11.1 of these Leximancer Software Terms.
Authorised Users means any person that is a director, officer or employee of the Client and to whom the Client has provided access to the Licensed Software in accordance with these Leximancer Software Terms.
Business Day means a day on which banks are open for business excluding Saturdays, Sundays and public holidays in Brisbane, Queensland, Australia.
Change of Control means a change of a controlling interest of a party including as a result of a change in majority shareholding of a party.
Claim includes a demand, claim, action, dispute or proceeding made or brought by or against the person, however arising and whether present, unascertained, immediate, future or contingent.
Client means the licensee under this agreement
Client Data means the textual documents and other data belonging to the Client uploaded to LexiPortal.
Commencement Date has the meaning given in clause 3 of these Leximancer Software Terms.
Commercial Licence means a licence granted by Leximancer to the Client to utilise the Licensed Software for Commercial Purposes and in accordance with the terms of this agreement.
Commercial Purpose means to use the Licensed Software to obtain a commercial benefit (whether monetary in nature or for some other form of consideration) in connection or relation to the business of the Client, or any other undertaking of the Client intended for profit.
Confidential Information means information that is by its nature confidential, or is designated by a party as confidential, or that a party knows or ought to know is confidential, other than information which is or becomes public knowledge otherwise than by breach of this agreement or any other confidentiality obligation.
Corporations Act means the Corporations Act 2001 (Cth).
Data Host means a third party provider of cloud-based data hosting that owns and maintains (either itself or through its providers) a remote, virtual network of connected hardware, services and data centres located worldwide required for web application hosting.
Data Processing Addendum means the terms as set out in the Appendix of this agreement.
Data Protection Laws means the GDPR and all European Union or Member State data protection laws and rules, policies, guidance or recommendations issued by any governmental, statutory or regulatory body and any legally binding industry code of conduct or guideline, in each case relating to data protection, the processing of personal data and privacy and in force from time to time; and references to “Data Subjects”, “Personal Data”, “Process”, “Processed”, “Processing” and “Processor” have the meanings set out in, and will be interpreted in accordance with, such laws, rules, policies, guidance, recommendations, codes of conduct and guidelines.
Data Specifications means Leximancer’s requirements as to the standard and volume of Client Data (including as to the quality, integrity and format of data) required in order to Upload the Client Data to the Licensed Software, as determined (and revised and amended) by Leximancer from time to time.
Default Rate means the compound interest rate accruing on a daily basis from and including the date that payment is one day overdue and ceasing to accrue on the date Leximancer receives payment in full of all overdue Fees.
Fees mean the fees payable to Leximancer under this agreement for the provision of Access to the Licensed Software or any Additional Services.
Force Majeure means any cause beyond the reasonable control of a party and which that party is unable to overcome by the exercise of reasonable diligence and at a reasonable cost, including an act of God, fire, earthquake, storm or flood, and the failure of third-party equipment, software, technology or other services necessary for the performance of a party’s obligations under this agreement.
GDPR means the General Data Protection Regulation 2016/679.
GST means a goods and services tax, or a similar value added tax, levied or imposed under the GST Law.
GST Law has the meaning given to it in the A New Tax System (Goods and Development Services Tax) Act 1999 (Cth).
Insolvent means if a person is insolvent or an insolvent under administration, or has a controller appointed (each as defined in the Corporations Act), are in receivership, in receivership and management, in liquidation, in provisional liquidation, under administration, wound up, subject to any arrangement, assignment or composition, protected from creditors under any statute, dissolved (other than to carry out a reconstruction whilst solvent) or otherwise unable to pay debts when they fall due.
Intellectual Property Rights means all intellectual property rights, including the following rights:
(a) copyright, future copyright, patents, rights in circuit layouts, trademarks, designs, trade secrets, know how, and any right to have confidential information kept confidential;
(b) any application or right to apply for registration of any of the rights referred to in paragraph (a); and
(c) all rights or a similar nature to any of the rights in paragraphs (a) and (b) which may subsist,
(d) whether or not such rights are registered or capable of being registered.
Law includes any requirement of any statute, rule, regulation, proclamation, ordinance or by-law, present or future, and whether state, federal or otherwise (and for the avoidance of doubt includes the Privacy Act and the Data Protection Laws).
Leximancer Outputs means any source text, documents, information or other content created or generated howsoever by the Licensed Software from the Client Data.
LexiPortal means Leximancer’s cloud based software platform.
Leximancer Software Terms means these terms and conditions.
Loss includes any damage, loss, cost, liability or expense of any kind and however arising (including as a result of any Claim) including penalties, fines and interest whether prospective or contingent and any amounts that for the time being are not ascertained or ascertainable.
Licence means either the non-exclusive, non-transferable Academic Licence, Commercial Licence or Topic Guide Licence granted by Leximancer to the Client pursuant to these Leximancer Software Terms.
Licensed Software means the software accessible through LexiPortal in accordance with the Client's subscription selection.
Moral Rights means moral rights as defined in the Copyright Act 1968 (Cth).
New Services means services offered by Leximancer in addition to the Services described in this agreement (including services which extend, alter, improve or add functionality to the Services).
Notice means a notice given under or in connection with this agreement that adheres to the requirements in clause 15.
Privacy Act means the Privacy Act 1988 (Cth).
Privacy Policy means Leximancer's privacy policy as published from time to time on the Website.
Specifications means any document or material provided to the Client or made available on the Website by Leximancer prior to the Commencement Date, or as updated from time to time, containing technical information regarding the use of the Licensed Software.
Tax Invoice means an invoice issued by Leximancer for payments required under this agreement.
Term means the period of one month or one year consistent with the subscription term selected and paid for by the Client, subject to automatic renewal in accordance with these Leximancer Software Terms.
Topic Guide means Leximancer's tool named "TopicGuide" as described on the Website.
Topic Guide Licence means a licence granted by Leximancer to the Client to utilise the Topic Guide in accordance with the terms of this agreement for any Commmercial Purpose or academic purpose.
Upload means the transfer to LexiPortal of Client Data.
Website means the Leximancer website located at <https://www.leximancer.com/>.