Last updated: 24/05/2018
NOTE: THIS SERVICES AGREEMENT WILL ONLY APPLY TO THE EXTENT THAT NO BINDING AGREEMENT, WRITTEN OR ELECTRONIC, (THE “OTHER AGREEMENT”) IS ALREADY IN PLACE BETWEEN CUSTOMER (DEFINED BELOW) AND LIQUID STATE PTY LTD AND ITS SUPPLIERS PERTAINING TO THE PRODUCTS AND/OR SERVICES TO WHICH THIS AGREEMENT APPLIES. TO THE EXTENT THAT ANY OTHER AGREEMENT IS IN EFFECT, THEN SUCH OTHER AGREEMENT WILL GOVERN CUSTOMER’S USE OF THE HOSTED SERVICE (AS DEFINED BELOW) AND THIS AGREEMENT WILL NOT APPLY EVEN IF YOU ARE REQUIRED TO CLICK THE BOX AFFIRMING YOUR CONSENT TO THE TERMS OF THIS AGREEMENT.
BY EXECUTING THIS DOCUMENT, OR COMPLETING THE ONLINE REGISTRATION FORM AND CLICKING THE “I AGREE” BUTTON, YOU SUBMIT TO LIQUID STATE PTY LTD, ACN 153 608 381, (“LIQUID STATE”), AN OFFER TO OBTAIN THE RIGHT TO USE THE PUBLISHING AND HOSTED SERVICES UNDER THE PROVISIONS OF THIS MASTER SERVICES AGREEMENT (THE “AGREEMENT”).
BY EXECUTING THIS DOCUMENT, OR CLICKING THE “I AGREE” BUTTON, YOU HEREBY AGREE THAT YOU HAVE THE REQUISITE AUTHORITY, POWER AND RIGHT TO FULLY BIND THE PERSON AND/OR ENTITIE(S) (COLLECTIVELY, THE “CUSTOMER”) WISHING TO USE THE HOSTED AND PUBLISHING SERVICES LISTED ON THE ORDER CONFIRMATION PAGE, ORDER FORM, QUOTE AND/OR INVOICE (EACH AN “ORDER FORM”) WHICH WE PROVIDE TO CUSTOMER IN CONNECTION WITH THE PURCHASE OF LICENSES TO ACCESS AND USE THE HOSTED SERVICE, PUBLISHING SERVICE OR RELATED PROFESSIONAL SERVICES. THE TERMS OF EACH ORDERING DOCUMENT WILL SET FORTH THE SPECIFIC TERMS OF THE ORDER BUT ALL APPLICABLE TERMS AND CONDITIONS BELOW SHALL APPLY.
IF YOU DO NOT HAVE THE AUTHORITY TO BIND THE CUSTOMER OR YOU OR THE CUSTOMER DO NOT AGREE TO ANY OF THE TERMS BELOW, LIQUID STATE AND ITS SUPPLIERS ARE UNWILLING TO PROVIDE THE HOSTED AND PUBLISHING SERVICES TO THE CUSTOMER, AND YOU SHOULD NOT CLICK TO ACCEPT THE TERMS OF THIS AGREEMENT AND YOU SHOULD DISCONTINUE THE ORDER, AND/OR REGISTRATION PROCESS.
OPERATIVE PROVISIONS
1. DEFINITIONS
Account means the access given to a Customer to use the services of the Liquid State Publishing System. The customer gains access to these services by logging into the Site with the User Name and Password.
App Creation Fee means the fee Liquid State charges for creation of the Personalised App as set out on the Website, at the Liquid State CMS website or in the fees document available upon request.
Built-in Issue or Built-in Content means content that is pre-installed when a Personalised App is downloaded for the first time, and is displayed in the Personalised App.
Confidential Information means any confidential or proprietary information of either party (whether in graphic, written, oral, or electronic form), including without limitation any source code, software tools, designs, or any other information relating to any research project, work in process, future development, scientific, marketing or business plan or financial or personnel matter relating to the Disclosing Party, its present or future products, sales, suppliers, customers, employees, investors or business.
Consequential Loss means any consequential, indirect, exemplary or punitive loss or damage (including without limitation direct or indirect loss of actual or anticipated profits or revenues, loss by reason of shutdown or non-operation, increased cost of borrowing capital or financing, or loss of use, or productivity) whether caused by or contributed to by a breach of contract or statute, breach of warranty (express or implied), tort, strict liability or any other cause whatsoever.
Customer means any person, company or organisation who enters into this agreement with Liquid State.
Customer Data means all data that Customer uploads to the Service or otherwise makes available via the Service, which may include, without limitation, and dependant upon the Services acquired the following: device token information used for authentication (for all Services), email message content (for AirMail Inbox Service), and/or lists of Customer products (for Subscription Service).
Customer Deliverables means the data, images and other things You provide to Liquid State under clause 3.1.
Device means Your tablet, phone, computer or other device (if any) to which Liquid State allows the Personalised App to be downloaded.
Fees Schedule list the fees for different Liquid State services and products. Current fees schedule is set out on the Liquid State Website Pricing Page, in the schedule at the end of this document, or in a separate Agreement with the Customer, available upon request.
Hosting Service means the mechanism used for storing and delivering the Issues you create to the Personalised App.
In-app Purchase Issue or In-App Content means content, produced with the Liquid State CMS, that is sold from the store section of the Personalised App.
Issue means a collection of customer-created Pages produced with the Liquid State CMS and presented in the Personalised App either as a single In-app Purchase item or as a Built-in Content item.
Liquid State is the provider of the Technology delivered to the Customer via the Liquid-State.com site and its subdomains as well as any associated ‘Powered By Liquid State’ sites.
Liquid State CMS means Liquid State’s content management and design system which allows You to create content (Issues and Pages) for, and send messages to, Your digital publication apps.
Liquid State CMS Website means the website, whose URL will be provided to you by Liquid State, from which the Liquid State CMS may be accessed.
Liquid State Publishing System means the Personalised Apps and Liquid State CMS.
Order Form means a site confirmation page or invoice listing services and/or products you are agreeing to purchase from Liquid State.
Pages means individual customer-created content produced with the Liquid State CMS.
Password means the set of numbers and/or letters used as part of the customers login (Password and User Name) to the website.
Personalised App means a personalised software application tailored by Liquid State using some or all of the Customer Deliverables and capable of displaying Issues and Pages created with the Liquid State CMS.
Platform Subscription means the fee charged by Liquid State to provide the Customer access to Liquid State CMS for the purpose of managing the Customer’s Personalised Apps and publishing and sending messages to these apps. Platform Subscription fees are set out on the Liquid State Website Pricing Page, in the schedule at the end of this document, or in a separate Agreement with the Customer, available upon request.
Professional or Integration Services means any customization, implementation, configuration of the Liquid State Publishing System or other professional services.
Readiness Notice means the written notice referred to in clause 3.2(b).
Services Fee means the fees associated with the services provided by Liquid State which includes, but is not limited to, App Creation Fees, Professional or Integrations Services fees.
Solutions mean the software, products, technical devices and services created or delieverd by Liquid State to the Customer.
SOW means statement of work.
Usage Data means anonymous, aggregate usage data derived from Customer Data such as the aggregate number of transactions that occur within a particular Service.
User Name means the set of numbers and/or letters that represent the Customer’s name used as part of the customers login (Password and User Name) to the website.
Website and Site mean the internet website located at www.liquid-state.com and its subdomains.
Work Product means the results of Professional Services.
You means the Customer referred to in the Schedule.
2. SCOPE OF THIS AGREEMENT
This Agreement sets out the terms upon which We are prepared to:
(a) create the Personalised App for You, or enable You to create the Personalised App through use of the Liquid State Publishing System;
(b) create the Issue (Built-In or In-App) for You, or enable You to create the Personalised App through use of the Liquid State Publishing System;
(c) host the Issue(s) for You;
(d) grant You access to the Personalised App;
(e) grant You access to the Liquid State CMS; and
(f) permit You to sub-licence the Personalised App.
3. CREATION OF AND ACCESS TO THE PERSONALISED APP
3.1 You agree to provide to Liquid State in a timely fashion all Customer Deliverables requested by Liquid State and in the form requested by Liquid State, in order to enable Liquid State to produce and provide to You access to the Personalised App.
3.2 Subject to Your compliance with this Agreement, Liquid State grants, and You agree to accept, a licence to: (a) download to no more than three (3) Devices a copy of the Personalised App during the creation process for testing purposes (when We have made it available to You to do so); and
(b) after We (in our sole discretion) give you written notice that the Personalised App is ready for this purpose, use the Personalised App for (and only for) the purposes contemplated by this Agreement, including to sublicense its download and use by Your customers as the structure by which they may purchase and view Your Issues.
3.3 You may use the Personalised App in accordance with (and only in accordance with) the documentation and directions Liquid State provides to You from time to time including without limitation any such documentation and directions (about the Personalised App or the Liquid State CMS) as are contained on the Website and the Liquid State CMS Website.
3.4 If You have requested Liquid State to creating the app on Your behalf, You undertake to pay to Liquid State the App Creation Fee as follows: (a) 50% immediately; and
(b) 50% at the time of Our delivery to You of the Readiness Notice.
App Creation Fees are listed in the Fees Schedule, at the end of this document, on the Liquid State CMS website or in a separate Agreement with the Customer, available by request.
4. CREATION AND PUBLISHING OF ISSUES AND SENDING OF MESSAGES
4.1 Subject to Your compliance with this Agreement and the level of your Platform Subscription, Liquid State will during the term of this Agreement allow You to access the Liquid State CMS to create and publish digital publications (Issues and the Pages they contain) for potential download by Your customers and for the sending of messages to devices (via the Personalised App).
4.2 In addition to other sums payable under this Agreement, You undertake to pay to Liquid State the Platform Subscription fee as listed on the Liquid State Website Pricing Page, in the schedule at the end of this document, or in a separate Agreement with the Customer, available upon request.
5. ORDERING
Pursuant to this Agreement, Customer may order from Liquid State and its suppliers (a) licenses to access and use one or more of Liquid State’s or its suppliers hosted online services and related APIs (each, a “Service”) and/or (b) related configuration, customization or other professional services (“Professional Services”). The specifics of each Customer order will be set forth on one or more order forms or other ordering documents (each of which may be electronic in nature, an “Order Form”). Services may be ordered as part of an aggregated platform offering or as individual service offerings (all as further described on the relevant Order Form).
6. ACCESS TO SERVICES
6.1 GRANT OF ACCESS
6.1.1 Subject to the terms and conditions of this Agreement, Liquid State and its suppliers grant Customer a non-exclusive, non-transferable, non-sublicenseable license to access the Service(s) listed on an Order Form a Liquid State-designated website (currently located at cloud.liquid-State.com) (the “Site”) to gain access to, upload, and manipulate and manage data owned, provided or aggregated by Customer as uploaded to the Service solely for Customer’s own business purposes.
6.1.2 Customer: (a) is solely responsible for all Customer Data (defined below) regardless of whether such data is uploaded directly by Customer or by Liquid State at the direction of Customer; (b) acknowledges that Liquid State has no control over and will not monitor the content of the Customer Data; and (c) agrees that Customer will be responsible for (i) establishing all terms and conditions applicable to its users (ensuring that such terms and conditions comply with this Agreement) and (ii) obtaining all necessary consents of third parties to the collection, processing, and use of Customer Data, including any processing by Liquid State in connection with Liquid State’s, and its suppliers’, provision of the Service.
6.1.3 Customer may access the Service only as permitted by this Agreement.
6.1.4 Customer will be solely responsible for designating the scope of access for each of its users within the Service; provided that in no event will any user have any rights in or have access to the Service that are greater than the rights granted to or the access permitted by Customer hereunder.
6.2. PASSWORDS AND SITE ACCESS
6.2.1 If you register as a Customer of the Site, you will be asked to select a User Name and Password which is needed for accessing the Site and its services. You are solely responsible for maintaining the security of your Account and you are fully responsible for all activities that occur under the Account and any other actions taken in connection with the publication of any apps, issues or pages under your Account.
6.2.2 You are not permitted to allow anyone else to use your User Name and Password to log into the Site. You must immediately notify Liquid State of any unauthorized uses of your account or any other breaches of security. Liquid State and its contractors, suppliers and licensors, will not be liable for any acts or omissions by You, including any damages of any kind incurred as a result of such acts or omissions.
6.2.3 Any transactions completed under a User Name will be deemed to have been completed by Customer.
6.2.4 Customer agrees to maintain a current list of all users authorized to access the Service on behalf of Customer.
6.3 CHANGES AND REVIEW
6.3.1 All applicable fees and charges may be changed by Liquid State from time to time and such changes will be published on the Website, the Liquid State CMS Website.
6.3.2 Liquid State reserves the right, at its sole discretion, to modify or replace any part of this Agreement. It is your responsibility to check this Agreement periodically for changes.
6.3.3 Your continued use of or access to the site following the posting of any changes to this Agreement constitutes acceptance of those increased changes.
6.4 THIRD PARTIES
Liquid State uses third parties to perform certain services including the hosting of the Service (Hosting Services) and may change its provider from time to time. All access to the Service through Hosting Services will be subject to this Agreement located at https://liquid-state.com/legal/.
6.5 AVAILABILITY
Subject to the terms and conditions of this Agreement, Liquid State will use commercially reasonable efforts to make the Site and the Service available. Liquid State does not warrant that Customer’s use of the Service will be error-free or uninterrupted.
6.6. UPGRADES AND ENHANCEMENTS
6.6.1 Liquid State may (but is not required to) during the term of this Agreement provide to You from time to time standard or progressive upgrades, changes or amendments to the Personalised App and/or make any changes to the Liquid State CMS as Liquid State sees fit to ensure proper operation and interaction of the Liquid State Publishing System and any general enhancements that may be introduced.
6.6.2 Liquid State will not impose a fee to provide any such upgrade to You directly but may impose a fee for any download by You of applications Liquid State makes available for download, whether in applications stores, the Website, the Liquid State CMS Website or elsewhere.
6.6.3 Payment of fees under this Agreement does not cover any specific requests for changes or customisation of any of the Liquid State Publishing System nor any new products that may be released in the future nor any re-development as a result of industry or legislative changes. Such changes would be considered Professional Services and be covered under a separate agreement or SOW.
6.6.4 Liquid State and its suppliers reserve the right to upgrade and update the Site and/or Service or to offer new services and/or new features through the site (including, the release of new tools and resources), at its discretion, including without limitation the software upon which the Service is based, and the features and functionalities available through the Service. Such updates or new features and/or services shall be subject to the terms and conditions of this Agreement and may incur a different set of fees. You agree to be bound by those increased charges.
7. DATA
7.1 CONTROL OF DATA
7.1.1 Other than to the limited extent provided in Section 7.2 below, Customer will have sole control over any and all Customer Data which Customer uploads through the Service. Customer hereby grants to Liquid State and its suppliers a non-exclusive, royalty-free, worldwide license during the Term of this Agreement to reproduce, distribute, publicly perform, publicly display and digitally perform the Customer Data solely on or in conjunction with the Service.
7.1.2 Customer understands that the technical processing and transmission of the Service, including any Customer Data provided by Customer, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices, and Customer consents to such transmission and changes.
7.2 RIGHT OF REMOVAL
Liquid State, its suppliers, and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any data that is available via the Service that violates any of the terms of this Agreement or any applicable law.
7.3 USAGE DATA
Liquid State and its suppliers shall have the right to use, create derivative works of, distribute and otherwise exploit anonymous, aggregate usage data derived from Customer Data (“Usage Data”) such as the aggregate number of transactions that occur within a particular Service provided that in no event will Liquid State disclose or make available any Usage Data in a manner that does or reasonably could permit the recipient of such information to determine that such Usage Data pertained to Customer in particular.
8. PRIVACY POLICY
8.1 To the extent Customer Content that includes Personal Information is sent by Customer through the Liquid State’s solutions and Customer’s use of Liquid State’s solutions involves transferring Personal Information outside the European Economic Area or Switzerland to any country not deemed by the European Commission as providing an adequate level of protection for personal data, the terms of the Data Processing Addendum available at https://liquid-state.com/legal/dpa/ shall apply to such Personal Information and be incorporated into the Agreement. In providing the solutions, Liquid State may engage sub-processors to process Customer Content, including, without limitation, any associated Personal Information pursuant to this Agreement within the European Economic Area, Australia, the United States and in other countries and territories. Under no circumstances will Liquid State be deemed a data controller with respect to Customer Content under the Data Protection Act (European Directive 95/46/EC) or any relevant or replacement law or regulation of any Member State as defined therein. “Personal Information” means any Customer Content processed by Liquid State pursuant to the Agreement, relating to an identified or identifiable natural person; where an “identifiable natural person” means an individual who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to the individual’s physical, physiological, mental, economic, cultural or social identity.
8.2 Customer agrees to comply with all applicable privacy and data protection regulations. Further, Customer agrees to not use the solutions created or delivered by Liquid State to send Liquid State Sensitive Information unless agreed to separately in an Other Agreement. “Sensitive Information” shall means information the unauthorized disclosure of which could cause material, severe, or catastrophic harm or impact to Liquid State, any data subjects or third parties, including but not limited to passwords, authentication/authorization credentials, business secrets deemed highly confidential (e.g., highly-confidential business strategies and communications, sensitive attorney-client privileged and confidential communications), and information under regulatory or contractual handling requirements (e.g., Payment Card Industry Data Security Standards) including without limitation: credit card information, credit card numbers and magnetic stripe information, social security numbers, driver’s license numbers, passport numbers, government issued identification numbers, financial account information, genetic, bio-metric, or health data, personally identifiable information collected from children under the age of 13 or from online services directed toward children, and real time geo-location data which can identify an individual.
8.3 Liquid State collects, stores, uses and accesses Customer Content to maintain, improve and support the solutions it delivers. Liquid State may also use Customer Content in an encrypted and aggregated form (“Aggregated Data”) for Liquid State’s own business purposes, including use, duplication, modification and creation of derivative works regarding usage and performance of Aggregated Data which does not directly or indirectly identify Customer or End Users. Liquid State shall own all right, title and interest to the Aggregated Data and any derivative works thereof. Liquid State only shares Customer Content with others under special circumstances as follows:
a. With third parties who work on Liquid State’s behalf to provide the solutions;
b. To the extent needed to comply with laws or to respond to lawful requests and legal process (provided that Liquid State will endeavor to notify Customer if Liquid State has received a lawful request for Customer’s information);
c. To protect the rights and property of Liquid State, its agents, customers, and others including to enforce Liquid State’s agreements, policies, and terms of use;
d. In an emergency, including to protect the personal safety of any person;
e. In connection with a sale or transfer of all or a part of Liquid State’s business or assets (business deals may include, for example, any merger, financing, acquisition, divestiture, or bankruptcy transaction or proceeding); or
f. As directed by Customer, including through its use of the solutions.
8.4 Liquid State provides Customer with access to Customer Content and the ability to delete Customer Content upon request. Upon cessation of Liquid State’s relationship with Customer, Liquid State may delete Customer Content no longer in active use. Liquid State agrees to maintain commercially reasonable technical and organizational measures designed to safeguard Customer Content from unauthorized access, use or disclosure. These will include measures designed to: (i) store Customer Content on servers located in a physically secured location and (ii) use firewalls, access controls and similar security technology designed to protect Customer Content from unauthorized disclosure. Liquid State takes no responsibility and assumes no liability for any Customer Content other than its express security obligations in this section.
8.5 Customer agrees to provide appropriate notices to its End Users about, and if required by applicable laws obtain appropriate consent from such End Users for, Customer’s information collection and use practices relating to Customer’s use of the solutions and Customer’s use of cookies for tracking purposes. Appropriate notices may include notice in the form of a privacy policy posted on Customer’s site, in Customer’s mobile application, and/or in the communications Customer sends through the solutions.
8.6 Liquid State may also collect registration and other information about Customer through Liquid State website. Liquid State collection and use of information collected about Customer on Liquid State website is governed by the Liquid State Privacy Policy, available at https://liquid-state.com/legal/privacy-policy/. The Liquid State Privacy Policy does not cover information Liquid State collects on Customer’s behalf from Customer’s solutions created or delivered by Liquid State. It is Customer’s obligation to provide Customer’s own privacy policy or notice to Customer’s users.
9. PROFESSIONAL AND INTEGRATION SERVICES
Any customisation, integration, implementation, configuration or other professional services (“Professional Services”) will be set forth in a separate statement of work (each an “SOW”) which will include the relevant details of such services, including any specifications, schedules, fees and payment terms. Unless otherwise expressly agreed to in the particular SOW, Liquid State and Customer agree that any and all deliverables, work product or other results (“Work Product”) of the Professional or Integration Services provided to Customer shall be owned exclusively by Liquid State, including all intellectual property and proprietary rights therein.
10. RESTRICTIONS ON USE
10.1 Customer agrees not to, throughout the term of this Agreement:
(a) sublicense, transfer, or otherwise provide access to the Site, the Service, any Code or Work Product of Liquid State or its suppliers to any third party;
(b) interfere in any manner with the Site, the Service, any Liquid State or suppliers Code or any services associated therewith;
(c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for any Liquid State or Suppliers Code provided in binary format only or for any other software used or accessed by Customer that is part of the Site, the Service or any Work Product;
(d) access or attempt to access any data that is controlled or provided by any other Liquid State customer except as expressly permitted in writing in advance by Liquid State and such other customer;
(e) remove, modify or obscure any copyright, trademark, service mark, tagline or other notices that appear during use of the Service or any Liquid State or its suppliers Code; or
(f) in any way access, use, or copy any portion of the Site, the Service, the Liquid State or its suppliers Code or Work Product (including the logic and/or architecture thereof and any trade secrets included therein) to directly or indirectly develop, promote, distribute, sell or support any product or service that is competitive with the Site or the Services.
10.2 Customer agrees to, throughout the term of this Agreement:
(a) sign all such documents and do all such things as are reasonably necessary in order to give full effect to this Agreement;
(b) only use the Liquid State Publishing System completely in accordance with: (i) the documentation and directions Liquid State provides to You from time to time including without limitation any such documentation and directions about the Liquid State Publishing System as are contained on the Website and the Liquid State CMS Website; (ii) all written instructions supplied and the instructions contained within the Liquid State Publishing System or as otherwise instructed by Liquid State or its representatives;
(c) refrain from copying (save as expressly permitted by this Agreement) or making any alteration to any part of the Liquid State Publishing System; and
(d) take all reasonable steps to prevent any other person from engaging in any of the activities referred to in the above sub-clause.
10.3 You may neither transfer this Agreement nor any rights under it without express written permission from Liquid State, which retains the sole unfettered discretion to allow or prohibit any such transfer and may impose any conditions Liquid State sees fit if Liquid State elects to allow any such transfer.
11. FEES AND PAYMENT
11.1 Customer will pay the Platform Subscription fee as listed on the Liquid State Website Pricing Page, in the schedule at the end of this document, or in a separate Agreement with the Customer, available upon request.
11.2 When Professional or Integration Services have been requested by the Customer, You will pay the Service fee set forth on the applicable Order Form (the “Services Fee”) pursuant to the payment terms set forth on such Order Form.
11.3 Liquid State will invoice You for;
(a) the App Creation Fee and any Professional or Integration Services at the commencement of the SOW;
(b) the Platform Subscription fee monthly.
11.4 Liquid State reserves the right to modify the fees and other charges upon notice to Customer.
11.5 In addition, in the event of any change in Liquid State’s licensors and suppliers’ charges that materially increase the cost of delivery of the Service, Liquid State reserves the right to modify fees and other charges for the Service to reflect such increase in cost upon no less than thirty (30) days prior written notice.
11.6 The fees payable to Liquid State exclude all applicable sales, use and other taxes, and Customer will be responsible for payment of all such taxes (other than taxes based on Liquid State’s net income), fees, duties and charges, and any related penalties and interest, arising from the payment of such fees or the delivery or use of the Site, the Service, and/or any Work Product.
12. WARRANTIES AND DISCLAIMER OF WARRANTIES
12.1 REPRESENTATIONS AND WARRANTIES OF LIQUID STATE
Liquid State represents and warrants that:
(a) Liquid State and its suppliers has all rights necessary to offer the Services; and
(b) the Services (as provided and independent of Customer’s specific usage thereof) do not violate any applicable law.
12.2 REPRESENTATIONS AND WARRANTIES OF CUSTOMER
Customer represents and warrants that:
(a) Customer has all rights necessary to provide, access, and modify the Customer Data, including all rights to grant the license to Liquid State and its suppliers in Section 6.1.2;
(b) Customer has all rights necessary to permit its users to access and use the Customer Data;
(c) the Customer Data do not violate any applicable law, including any law or regulation regarding the transmission of technical data exported from the United States or any other applicable country, any law or regulation regarding privacy rights, or any law or regulation regarding harassment or defamation or other tort;
(d) Customer will not access any information or data provided or controlled by any other customer or end user of Liquid State and will abide by and will not circumvent or otherwise disable any security or data protection measures implemented by Liquid State; and
(e) Customer will not, and will not permit any third party to, upload, post, email, transmit or otherwise make available using or in connection with the Service any Malicious Code.
12.3 DISCLAIMERS
12.3.1 Subject to section 11.1, The site and the service, and all professional services, are provided “as is” without any warranty of any kind. Company expressly disclaims all warranties, express, implied, or statutory, including any implied warranties of merchantability, fitness for a particular purpose, title, data accuracy, system integration, quiet enjoyment, free from error, virus or other defect, nor that access will remain uninterrupted. And non-infringement of third party rights relating to any services provided by company under this agreement.
12.3.2 Each party acknowledges that it has relied on no representations or warranties other than any express representations and warranties set forth in this agreement. Other than using then-current industry-standard technology, Liquid State and its suppliers do not guarantee the privacy, security, authenticity and non-corruption of any information transmitted through, or stored in any system connected to, the internet.
12.3.3 Liquid State does not warrant that the information contained on the Website is free from error, virus or other defect. You agree that access or any reliance by You upon any of the content or functionality of the Website or the Liquid State CMS Website is at Your own risk.
12.3.4 You acknowledge and agree that:
(a) although Your Issues and Pages and related content may be stored, temporarily or otherwise, at the Liquid State CMS Website, You are solely responsible to back up all such Customer Data and Content;
(b) Liquid State does not warrant that any Content or Customer Data stored at or created using the Liquid State CMS Website will be or remain backed up, secure, complete or free from error, virus or other defect;
(c) Liquid State shall bear no responsibility or liability whatsoever arising out of any damage or loss of any such Customer Data or Content or for any consequences of Your failure to back all such content and data up; and
(d) internet and internet browser access is required in order to access the Website and the Liquid State CMS Website, and You are solely responsible to obtain such internet and browser access. Liquid State does not provide You with internet or browser access.
12.4 Exclusion of Consequential Loss
Notwithstanding anything to the contrary in this Agreement, Liquid State shall not be liable to You or any other person whatsoever under this Agreement, at law or otherwise for any Consequential Loss.
12.5 Exclusion of Vienna Convention
The United Nations Convention on Contracts for the International Sale of Goods (Vienna Sales Convention) is expressly excluded in all respects from and does not apply to this Agreement or the transactions contemplated by it.
12.6 Exclusion of Liquidated Damages, Indemnity, etc
Notwithstanding anything to the contrary in this Agreement or elsewhere, Liquid State shall not be liable to You for any liquidated damages, delay, penalties, performance guarantees or any other similar obligation.
12.7 LIMITATION OF WARRANTIES
12.7.1 To the fullest extent permitted by law, all other warranties, statutory or implied, are excluded.
12.7.2 If despite the foregoing Liquid State is proven to be liable to You for loss or damage for any cause whatsoever, that liability will be limited, at the option of the liable party, to any one or more of the following:
(a) if the liability relates to goods supplied by Liquid State: (i) the replacement or repair of the goods or the supply of equivalent goods; or (ii) the payment of the cost of replacing or repairing the goods or of acquiring equivalent goods; or
(b) if the liability relates to services supplied by Liquid State:(i) the supplying of the services again; or (ii) the payment of the reasonable cost of having the services supplied again.
13. INDEMNITY
13.1 BY LIQUID STATE
For the avoidance of doubt, it is intentional that Liquid State provides no indemnities to any person under this Agreement.
13.2 BY CUSTOMER
Customer will defend, indemnify and hold harmless Liquid State and its suppliers from and against any claims, suits, losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) brought by third parties resulting from or relating to:
(a) a breach by Customer of any representation or warranty set forth in Section 11.2,
(b) any claim that the Customer Data, as provided by Customer, infringes or misappropriates the intellectual property rights of any third party; or (c) use of any User ID under this Agreement.
14. LIMITATION OF LIABILITY
Except as it relates to either party’s indemnity obligations described in section 12 above in no event will either party be liable to the other for any lost profits, lost data, or equipment downtime nor for any indirect, incidental, special, or consequential damages of any kind even if it has been advised of the possibility of such damages. In no event will either party’s total cumulative liability under this agreement, from all causes of action of any kind, including tort, contract, negligence and strict liability, exceed the amounts paid to Liquid State by customer for the particular services that are the subject of such claim. Each party acknowledges and agrees that the foregoing limitations of liability are essential elements of the bargain and that in the absence of such limitations, the financial and other terms of this Agreement would be substantially different.
15. TERM, TERMINATION AND EFFECTS
15.1 The licences granted by this Agreement are effective from the date this Agreement commences until this Agreement is terminated by either party in accordance with the terms of this Agreement.
15.2 Liquid State may terminate this Agreement (and thus any licences granted by it) automatically without notice if You fail to comply with any of the provisions of this Agreement.
15.3 Upon termination of this Agreement or any of the licences under it, You will remove and/or destroy all copies of any part of the Liquid State Publishing System (including all upgrades, changes or amendments) and associated documentation in Your possession or control.
15.4 If Liquid State terminates this Agreement due to Your non-compliance with any of the provisions of this Agreement, You must still pay Liquid State any amounts remaining due under this Agreement.
15.5 EFFECTS OF TERMINATION
Upon termination or expiration of this Agreement or Order Form (as applicable) for any reason:
(a) any amounts owed to Liquid State under this Agreement or Order Form (as applicable) before such termination or expiration will be immediately due and payable;
(b) all licensed rights, including rights of access to the Service, granted in this Agreement or Order Form (as applicable) will immediately cease to exist, and Liquid State will cease making the Service available, and if applicable, cease performing all Professional Services; (c) Customer must promptly discontinue all use of the Service and User IDs for the terminated licenses; and
(d) upon Liquid State’s receipt of all payments from Customer, Liquid State will return all data uploaded by or for the Customer under this Agreement or Order Form (as applicable) within a reasonable period of time using an appropriate electronic medium.
Sections 7.3, 9 through 14, and 16 will survive termination of this Agreement for any reason. Any termination of a particular Order Form will not, by itself, terminate this Agreement; rather all other Order Forms then outstanding will remain in effect.
16. WITHDRAWAL OF SERVICE
Continuity of use of the Liquid State Publishing System may be withdrawn and/or not be provided if Your accounts are not within terms.
17. THIRD PARTY MATTERS
17.1 Your Device and/or computer systems may or may not require third party software or products to be installed to enable the Liquid State Publishing System to function correctly.
You agree that: (a) this is Your responsibility entirely; (b) Liquid State is not responsible in any way to make recommendations in that regard nor to supply or install such software or products.
17.2 You indemnify Liquid State, its related bodies corporate, their officers and employees from and against all:
(a) liability for or in respect of any physical injury (including death) to persons;
(b) damage to property; and
(c) other liability, damage or loss,
insofar as the injury, damage, liability or loss is attributable to your negligence, breach of these terms and conditions, or unlawful or wilful action in connection with these terms and conditions, their performance, or the failure to perform them.
18. PROPRIETARY RIGHTS
18.1 You may print and reproduce material from the Liquid State Publishing System for use within your office but only during the term of this Agreement.
18.2 The structure, sequence, organization, and the look and feel of the Service, the Site, the Work Product, Liquid State’s Confidential Information, the Liquid State Publishing System and all of their components, including without limitation program files, source and object code, text files and other electronic files and components, data structures, manipulated data, written material and all other content contained in the Liquid State Publishing System (but not including Customer Deliverables and Customer Data), and any of Liquid State’s trademarks and all worldwide intellectual property rights therein, are the exclusive property of Liquid State and its suppliers and are owned by or licensed to Liquid State and are protected by national and international copyright laws. All rights in and to the Service not expressly granted to Customer in this Agreement are reserved by Liquid State and its suppliers and licensors. As between the parties, Customer retains all ownership in and to the Customer Data subject to the licenses granted in Section 7.
18.3 Copies of all or part of the Liquid State Publishing System and associated documentation may only be made for use on the Device(s) or as otherwise expressly permitted by Liquid State, and only during the term of this Agreement.
18.4 You agree not to disclose to any third parties whatsoever at any time during or after the term of this Agreement any details of any of the proposals made to you by Liquid State, any of the Liquid State Publishing System or associated documentation nor allow any third party to use any part of the Liquid State Publishing System without first obtaining written permission from Liquid State.
18.5 Liquid State (and our providers, suppliers and licensors) may perpetually use, share, commercialize and exploit any and all feedback related to the Service or this Agreement that is provided by Customer (excluding any Customer Data or Customer Confidential Information included therein).
19. CONFIDENTIALITY
19.1 Each party (the “Receiving Party”) will maintain in confidence all Confidential Information (as defined below) disclosed to it by the other party (the “Disclosing Party”).
19.2 The Receiving Party will not use or disclose Confidential Information of the Disclosing Party except as expressly authorized by this Agreement.
19.3 The Receiving Party will protect the Disclosing Party’s Confidential Information with the same standard of care that the Receiving Party uses to protect its own confidential information, but in no event less than a reasonable degree of care.
19.4 The obligations of confidentiality contained in this Section 14 will not apply to any information to the extent that it can be established by the Receiving Party by competent proof:
(a) was available to the public prior to the Disclosing Party’s first disclosure to Receiving Party;
(b) is lawfully received by the Receiving Party from a third party having no obligation of confidentiality with respect to such information; or
(c) is independently developed by Receiving Party without access to or use of the Confidential Information of the Disclosing Party.
19.5 Nothing in this Agreement will prohibit the Receiving Party from disclosing Confidential Information of the Disclosing Party if legally required to do so by judicial or governmental order, provided that the Receiving Party will give the Disclosing Party prompt notice of such requirement at least ten (10) days prior to disclosure and cooperate with the Disclosing Party in the event that the Disclosing Party elects to contest such disclosure or seek a protective order with respect to such disclosure.
19.6 Neither party may disclose the terms and conditions of this Agreement to any third party (other than its attorneys, accountants, and other professional advisors under a duty of confidentiality) without the prior consent of the other party except: (i) as may be required by law, a court order, or a governmental agency with jurisdiction, provided that before making such a disclosure the party making the disclosure first notifies the other party as provided above, and (ii) to potential investors, lenders, purchasers of the party’s business, merger parties, and underwriters in connection with their due diligence in future financings, acquisitions, mergers, or public offerings.
20. PUBLICITY
Liquid State shall have the right to use in marketing, advertising, and promotional materials the corporate name and logo of the entity for whom the Service is being used (whether Customer or a third party).
21. DISPUTE RESOLUTION
21.1 If there is a dispute arising out of, or relating to, this Agreement (“Dispute”), the party raising the Dispute must provide the other party with written notice of the Dispute with an outline of the nature of the issues and the first party’s preferred resolution of the Dispute (“Notice of Dispute”).
21.2 The parties must, within seven (7) days of a party notifying the other in writing of a Dispute, meet at such place as the parties agree and attempt to resolve the Dispute.
21.3 If the Dispute is not resolved within fourteen (14) days after the Notice of Dispute is given to the other party or parties (“First Period”), the Dispute is by this clause submitted to mediation. The mediation must be conducted in Brisbane, Queensland, Australia. The Institute of Arbitrators and Mediators Australia Mediation and Conciliation Rules (current as at the date of this Agreement) as amended by this clause 15 apply to the mediation, except where they conflict with this clause 15, in which case this clause shall prevail to the extent of any inconsistency.
21.4 If the parties have not agreed upon the mediator and the mediator’s remuneration within seven (7) days after the First Period:
(a) the mediator is the person appointed by; and
(b) the remuneration of the mediator is the amount or rate determined by, the Chair of the Queensland Chapter of the Institute of Arbitrators and Mediators Australia or the Chair’s nominee, acting on the request of any party to the Dispute.
21.5 The parties must pay the mediator’s remuneration in equal shares. Each party must pay its own costs of the mediation.
21.6 This clause 21 does not prevent any party from obtaining from a court injunctive, declaratory or other interlocutory relief which may be urgently required.
21.7 Each party agrees to act in good faith and use their best endeavours to resolve the Dispute before and during (and after, if the Dispute is not resolved by the end of) any such mediation.
21.8 The performance of this Agreement shall continue throughout the conduct of any mediation proceedings pursuant to this clause 21.
22. GENERAL
22.1 INTERPRETATION
Unless the context otherwise dictates, in this Agreement:
(a) references to or to any specified provision of this Agreement shall be construed as references to or to that provision of this Agreement as amended or substituted by the agreement or deed of the parties and in force at any relevant time;
(b) reference to any statute, ordinance or other law or award shall include all regulations and other instruments under them and all consolidations, amendments, reenactments or replacements of them;
(c) reference to a person includes a company, partnership, organisation or any legal entity, and vice versa;
(d) words importing the singular shall include the plural and vice versa;
(e) headings are inserted for convenience only and shall not affect the ordinary meaning of the terms of this Agreement;
(f) a reference to a right includes a benefit, remedy, authority, discretion and power;
(g) where two or more persons are defined as a party to this Agreement, that term means each of the persons jointly, each of them severally and any two or more of them jointly; and
(h) an agreement, covenant, obligation, representation or warranty on the part of two or more persons binds them jointly and severally, and an agreement, covenant, obligation, representation or warranty in favour of two or more persons is for the benefit of them jointly and severally.
22.2 SEVERABILITY
Should any provision of this Agreement be found invalid or unenforceable, the Agreement shall be construed as if that provision were deleted, and all remaining terms and provisions shall be enforceable in law or equity in accordance with their terms.
22.3 GOVERNING LAW
This Agreement is governed by and is to be construed in accordance with the laws of Queensland, Australia. You irrevocably agree to submit to the non-exclusive jurisdiction of the Courts of that State in respect of any matters arising out of this Agreement.
22.4 ENTIRE AGREEMENT
You acknowledge that this Agreement sets out the entire agreement between You and Liquid State in respect of the Liquid State Publishing System ans the Services it provides, and all other arrangements and understandings are superseded by the terms of this Agreement.
23. MISCELLANEOUS
23.1 The parties are independent contractors with respect to each other, and nothing in this Agreement shall be construed as creating an employer-employee relationship, a partnership, agency relationship or a joint venture between the parties.
23.2 Each party will be excused from any delay or failure in performance hereunder, other than the payment of money, caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to acts of God, earthquake, labor disputes and strikes, riots, war and governmental requirements. The obligations and rights of the party so excused will be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay.
23.3 The terms of this Agreement shall be binding on the parties, and all successors to the foregoing.
23.4 Neither party will assign, transfer or delegate its rights or obligations under this Agreement (in whole or in part) without the other party’s prior written consent except pursuant to a transfer of all or substantially all of such party’s business and assets, whether by merger, sale of assets, sale of stock, or otherwise. Any attempted assignment, transfer or delegation in violation of the foregoing shall be null and void.
23.5 All modifications to or waivers of any terms of this Agreement must be in a writing that is signed by the parties hereto and expressly references this Agreement.
23.6 In the event that any provision of this Agreement conflicts with governing law or if any provision is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction,
(a) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and
(b) the remaining terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect.
23.7 No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
23.8 This Agreement includes any Order Forms agreed to by the parties in writing, or by clicking an I Agree button while logged into the Customer Account and all expressly referenced documents. Collectively the foregoing constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or communications, including, without limitation, any quotations or proposals submitted by Liquid State.
23.9 The terms on any purchase order or similar document submitted by Customer to Liquid State will have no effect and are hereby rejected.
23.10 All notices, consents and approvals under this Agreement must be delivered in writing by courier, by facsimile, or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at its corporate headquarters and are deemed delivered when received.
23.11 This Agreement may be executed in counterparts.
