FOBOH Terms and Conditions
These terms and conditions (Terms) govern your membership with FOBOH PTY LTD. Your Subscription is for the tiered package as selected by you and agreed between us by means of the Website or a written contract.
By selecting a Subscription on our website or submitting an Order to use the FOBOH Platform, paying for your Subscription or otherwise accepting the benefit of any part of the Platform, you agree to be bound by these Terms which form a binding contractual agreement between you or the company you represent (the ‘Client’, or ‘you’) and Foboh Pty Ltd an Australian business with ABN 47 668 157 739 trading as Foboh Pty Ltd (‘Foboh’, ‘our’, ‘we’ or ‘us’). You represent and warrant that you have valid authority to enter into these Terms on behalf of any entity you may represent.
We may change these Terms at any time by notifying you, and your continued use of the Platform following such an update will represent an agreement by you to be bound by the Terms as amended.
In these Terms, capitalised words and phrases have the meanings given to them where they are followed by bolded brackets, or as set out in the Definitions and Interpretations table at the start of these Terms.
Please read these terms and conditions carefully before agreeing to proceed with your Subscription.
Definitions and Interpretation
1.1 Definitions:
In this Agreement:
Commencement Date means the date on which you were first granted access to the FOBOH Platform
Client Data means all electronic data or information provided by the Client or their associated party at any time in connection with the Services, including prior to provision of the Services.
Confidential Information means all communications between the parties and all data (including Client Data), information and other material supplied to one party by the other party or received by one party from the other party that is either marked "confidential" or by its nature is intended to be confidential, and any information concerning the business transactions or the financial arrangements of either party disclosed to the other party that is conveyed in circumstances that indicate it is confidential, but does not include information that is:
a. in the public domain (other than by a breach of the Agreement); or
b. required to be disclosed by law; or
c. information known to the recipient party prior to the commencement of this Agreement.Documentation means FOBOH’s policies and guidelines, as updated and provided by FOBOH to the Client from time to time, relating to the use and application of the Platform.
Feedback means any feedback, comments, suggestions, or materials that the Client may provide to FOBOH about or in connection with the Services, including any ideas, know-how, or techniques contained therein.
Intellectual Property means data, patents, rights to inventions, copyright and related rights, trademarks and service marks, trade names, domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, and any other intellectual property rights, in each case whether registered or unregistered and including all applications (and rights to apply) for, and the right to be granted renewals or extensions of, and rights to claim priority from, these rights and all similar or equivalent rights or forms of protections which subsist or will subsist, now or in the future, in any part of the world.
Period means the period stated in your Order, or as agreed in writing.
Platform means the platform currently called “FOBOH”, and includes:
All FOBOH proprietary software;
Any updates, upgrades, or new features, functionality or enhancements of the Platform; and
Any other FOBOH Intellectual Property comprising or related to the Platform.
Platform Fees is the amount stated in your Order, or otherwise as agreed in writing
Platform Licence is defined at clause 3.
Privacy Policy means FOBOH’s privacy policy available www.foboh.com.au/privacy-policy.
Services means access to the Platform in accordance with this Agreement.
Territory means the territory stated in your Order, or otherwise as agreed in writing
User is defined in clause 6.
1.2. Interpretation:In this Agreement, unless the contrary intention appears:
Reference to:
one gender includes the others;
the singular includes the plural, and the plural includes the singular;
recital, clause or Order is a reference to a clause of or recital or Order for this Agreement and references to this Agreement include any recital, Order;
any contract (including this Agreement) or other instrument includes any variation or replacement of it;
a statute, ordinance, code or other law includes subordinate legislation (including regulations) and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
a person includes an individual, a firm, a body corporate, an unincorporated association or an authority;
a day or a month means a calendar day or calendar month; and references to money are in Australian Dollars;
An obligation, representation or warranty in favour of more than 1 person is for the benefit of each of them separately and all of them jointly;
The meaning of any general language is not restricted by any accompanying example, and the words “includes”, “including”, “such as”, “for example” or similar words are not words of limitation;
The word “costs” includes charges, expenses and legal costs;
Headings are for convenience only and do not form part of this Agreement or affect its interpretation;
The Order and Background are incorporated into and form part of the operative provisions of this Agreement.
A provision of this Agreement must not be construed to the disadvantage of a party merely because that party was responsible for the preparation of this Agreement or the inclusion of the provision in this Agreement.
2. Order
(a) By submitting an order for the purchase of a Subscription on the Website, or by responding to a quote or proposal from us, indicating that you would like us to provide any goods, software or services to you, including Additional Services (Order), you represent and warrant that:
(i) you have the legal capacity and are of sufficient age to enter into a binding contract with us; and
(ii) you are authorised to use the debit or credit card you provide with your Order.
(b) Submitting or agreeing to an Order constitutes your intention and offer to enter into these Terms
3. Platform
For the duration of Period (and any renewals thereof pursuant to the terms of this Agreement), FOBOH grants the Client a limited, non-exclusive, non-transferable, non-sub-licensable right to use the Platform within the Territory (Platform Licence). The Platform Licence endures until this Agreement is terminated or expires in accordance with clause 24(Notices).
We may from time to time, in our absolute discretion, release enhancements to the Platform, where “Enhancements” means any upgraded, improved, modified or new versions of the Platform. Any Enhancements to the Platform will not limit or otherwise affect these Terms. Enhancements may cause downtime or delays from time to time, and credits will not be provided for such downtime.
Use of Platform
To use the Platform, you may be required to supply the following information:
Business name and ABN or ACN;
Registered address;
Email address;
Contact number;
Credit card or bank account details for payment purposes;
Details of products and prices;
Details of your customers;
Any other information required to use the Platform from time to time;
(Client Information).
Failure to supply correct Client Information may result in you being unable to use the Platform as intended.
We may use the Client Information for the purpose of providing the functionality of the Platform and any related purpose. In order to do so, we may share the Client Information with other parties, including stakeholders and contractors.
Our use of any information provided within the Client Information will be in accordance with our Privacy Policy.
The Client must use the Platform in accordance with the Documentation and all operating instructions provided by FOBOH.
The Client must not use the Platform for any unconscionable behaviour or activity, including but not limited to:
Engaging in abusive, derogatory, discriminatory, or vexatious behaviour;
Engaging in any activity that disrupts or corrupts the Platform or the networks that host the Platform; or
Attempting to hack, reverse-engineer, disable, circumvent, or otherwise gain access to any security, database, or other secure aspect of the Platform.
The Client must not:
Provide Platform login details or passwords, or otherwise provide access to the Platform, to any unauthorised third party and take all reasonable steps to prevent unauthorised access to, or use of, the Platform;
Share any features of the Platform that are not publicly available with any unauthorised third party;
Engage in any conduct on the Platform that is in breach of this Agreement (or any agreements mentioned therein); and
Encumber or allow the creation of any mortgage, charge, lien or other security interest in respect of the Platform.
The Client must:
Not modify, adapt or hack the Platform or modify another website, platform or software so as to falsely imply that it is associated with the Platform or FOBOH;
Use the Platform for its intended purpose;
Not use the Platform for any illegal or unauthorised purpose, including the transmission of malware, or to violate any laws in any jurisdiction, including but not limited to copyright laws;
Not use the Platform, and Platform Licence for the purposes of developing, designing, or distributing a product, service or technology that competes with FOBOH or the Platform;
Not make available any analysis, data, or other information relating to the operation of the Platform to any third party without the written prior permission of FOBOH.
provide us with all documentation, information and assistance reasonably required by us to perform the Services; and
provide us with access to any third party or other accounts used by you (including log-in details and passwords), as is reasonably required by us to perform the Services.
The Client warrants that it will comply fully with all the Platform operating instructions. Any failure to comply fully with operating instructions may result in the sub-par or faulty performance of the Platform. FOBOH accepts no liability, and the Client releases FOBOH from any such liability, associated with faults or errors caused by non-compliance with any Platform operating instructions.
The Client shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, Equipment). The Client shall also be responsible for maintaining the security of the Equipment, the Client account, passwords and files, and for all uses of the Client account or the Equipment with or without the Client’s knowledge or consent.
The Client is responsible for management of its identity solution which FOBOH will use for enabling single sign-on. The Client will inform FOBOH within 24 hours of a security or cyber breach of involving its identity solution.
FOBOH may suspend the Platform for any one or more periods of time if it is unable to provide the Platform due to a fault, security issue or dysfunction with FOBOH servers. FOBOH will endeavour to provide the Client with reasonable notice of any downtime where it is reasonably possible to do so.
Order Management Solution
The Platform provides the technology through which the Client can accept orders from their buyers or customers (Transaction). Our involvement in the Transaction is limited to that of a facilitator to the Transaction. We are not and do not purport to be a contractual party to the Transaction. We are not responsible for the performance of either party’s obligations under the Transaction.
Our involvement in the Transaction is limited to the following capacity:
Facilitating the Transaction by allowing the buyer to purchase goods or services from the Client; and
Collecting payment from the buyer and remitting it to the Client (net-off any applicable fees and charges) where applicable.
Other Users
Where the Client makes the Platform available to its employees, associates or officers (Users) it must procure that such Users comply with the terms of this Agreement. It remains the Client’s responsibility to ensure that all Users are familiar and compliant with this Agreement.
The Client will maintain an up-to-date list of Users which must be made available to FOBOH for review on request.
The Client is liable for and indemnifies FOBOH against any damage or loss caused by a User’s act or omission, including without limitation:
Breach of this Agreement; or
Use of the Platform or Service is inconsistent with this Agreement, FOBOH’s reasonable instructions, or any applicable law, as determined by FOBOH at its discretion.
Fees and Payment
By accepting these Terms and Conditions you authorise us or any third-party service provider to debit your account at the relevant financial institution connected with the payment details identified and provided in your Client Data.
All Fees payable are payable as specified in your Order, or as agreed in writing.
Unless otherwise indicated, the Fees do not include GST. In relation to any GST payable for a taxable supply by us, you must pay the GST subject to us providing a tax invoice.
Fees and other amounts payable to FOBOH are charged in Australian Dollars. We reserve the right to amend pricing rates from time to time at our discretion.
Fees are payable monthly in advance and will be direct debited from the Client’s nominated bank account or credit card at the Commencement Date, and then on each monthly anniversary of the Commencement Date until this Agreement is terminated in accordance with clause 24(Notices) of this Agreement.
Our Fees are non-refundable for change of mind.
We reserve the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard or American Express).
If sufficient funds are not available in the Clients nominated financial account at the time of processing a payment:
We will issue an email notification to you providing notice of the payment default.
A second attempt to direct debit the fees from your nominated bank account or credit card will occur three days after the failed attempt.
If the payment is declined a second time, your subscription will be temporarily disabled until the payment is successfully made.
All charges are exclusive of Goods and Service Tax (GST).
If the Client believes that FOBOH has billed the Client incorrectly, the Client must contact FOBOH no later than 60 days after the commencement of the subscription cycle in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to admin@foboh.com.au
Third party payment service
FOBOH use Stripe to process payments on the Platform. Payments processed through the Stripe payment processing service are subject to Stripe’s terms and conditions which can be viewed at www.stripe.com/au.
From time to time, FOBOH may use a payment service provider other than Stripe in which case payment will be subject to the relevant payment service provider’s terms and conditions.
Support
FOBOH will provide reasonable support in relation to the Platform until the Agreement is terminated, expires, or the Client ceases paying Fees.
FOBOH does not guarantee that the support services will be provided in any given time period.
The Client will fully cooperate with FOBOH’s reasonable requests for information, resources, and time necessary to enable FOBOH to provide adequate support services, including by providing FOBOH with information to enable FOBOH to reproduce any issues reported by the Client. FOBOH will not be liable for any loss or damage caused by the Client not adequately cooperating with any reasonable requests of FOBOH.
We will store User Data you upload to the Platform using a third party hosting service selected by us (Hosting Service), subject to the following terms:
(hosting location) we may use storage servers to host the Platform through cloud-based services, and potentially other locations outside Australia, unless otherwise agreed in writing.
(service quality) While we will use our best efforts to select an appropriate hosting provider, we do not guarantee that the Hosting Service will be free from errors or defects or that User Data will be accessible or available at all times.
(backups & disaster recovery) In the event that User Data is lost due to a system failure (e.g. a database or webserver crash), we cannot guarantee that any backup will be available, or if available that such a backup will be free from errors or defects.
Updates
FOBOH may make updates to the Platform from time to time, including improvements, patches, modifications, bug fixes, and other generally released updates.
Such updates may require the Client to install updated version of the Platform or supporting software. Where applicable, the Client warrants that it will comply with all reasonable instructions from FOBOH to access or utilise the updates.
FOBOH is not liable, and the Client releases FOBOH from all liability arising from, any loss or damage caused by the Client not accessing or utilising recommended updates.
API Integrations
The Client may integrate the Platform with third-party applications, services, and systems (Third-Party Applications) through FOBOH's provided Application Programming Interface (API). The Client is responsible for ensuring that these integrations comply with the terms of this Agreement.
The Client is authorised to use the API within the limits established by FOBOH's Documentation (if any). FOBOH reserves the right to modify, restrict, or discontinue the API availability at any time, without notice or liability.
It remains the Client’s responsibility to ensure that the use of the API with Third-Party Applications complies with this Agreement, FOBOH's instructions, and any applicable laws. The Client must ensure that all Users of the APIs are familiar and compliant with these terms.
FOBOH is not responsible for any damages, losses, or failures that arise from the use of Third-Party Applications integrated through an API. The Client agrees to indemnify and hold FOBOH harmless against any claims, damages, or losses that result from such integrations.
The Client is liable for and indemnifies FOBOH against any damage or loss caused by an act or omission in connection with the use of the APIs or Third-Party Applications, including without limitation:
Breach of this Agreement; or
Where use of an API or Third-Party Applications is inconsistent with this Agreement, FOBOH's reasonable instructions, or any applicable law, as determined by FOBOH at its discretion.
Feedback
The Client may from time to time provide Feedback to FOBOH pertaining to the Services. The Client grants FOBOH a worldwide, royalty-free, perpetual and irrevocable licence to use, copy, modify and otherwise leverage the Feedback for any purpose, including incorporating or implementing the Feedback into the Platform and any updates to the Platform.
No Feedback will be deemed the Client’s Confidential Information and nothing in this Agreement limits FOBOH’s right to independently use, develop, evaluate, or market the Platform or other products which incorporated Feedback.
All Intellectual Property rights and other proprietary rights in improvements or updates to the Platform, or new technologies, developed by FOBOH using Feedback will vest solely in FOBOH.
The Client agrees to work with FOBOH to map a case study demonstrating value of the product in cost savings, reduced error rates, waste savings, reduced carbon emissions and other metrics jointly identified.
The Client grants FOBOH the right to use the Client's name, logo, and any other identifying marks solely for promotional, marketing, and sales purposes. This includes, but is not limited to, inclusion in promotional materials, on FOBOH's website, presentations, and in other sales and marketing collateral. The Client acknowledges that this usage is intended to promote the services provided by FOBOH and consents to such use without the need for further approval.
Intellectual Property
All Intellectual Property Rights (including copyright and patents) in the Platform, and all aspects of the Services, are owned and licensed by FOBOH, unless otherwise indicated. The Client must not copy, modify or transmit any part of the Platform.
Nothing in this Agreement or otherwise creates an assignment of any rights in the Platform beyond the ability to use it for its intended use.
The Client undertakes not to reverse engineer, replicate, or otherwise copy the Platform. FOBOH reserves all rights to seek compensation, damages, injunctions, or any other remedy available to it at law if any attempt to do so, whether successful or unsuccessful, is made by the Client or any of its affiliates, or a User.
The Client must not reproduce, duplicate, copy, sell, resell or exploit any portion of the Platform, use of the Platform, or access to the Platform.
The Client must not, either directly or indirectly, permit any third-party including without limitations Users, customers, agents, employees, officers, directors, contractors or any other third party to:
Hack, reverse engineers, decompile, disassemble or otherwise attempt to discover the object court, source code, or underlying ideas or algorithms of the Platform;
Modify, translate, or create derivative works based on any element of the Platform;
Make any attempt to pass off FOBOH Intellectual Property as its own;
Exploit FOBOH Intellectual Property for its own benefit or for the benefit of a third party.
The Client must promptly notify FOBOH:
If it becomes aware, or reasonably suspects, that FOBOH’s Intellectual Property Rights are being infringed, or are likely to be infringed; and / or
Of any proceeding or known intention to bring proceedings against FOBOH or the Client including for infringement of Intellectual Property Rights.
Where the Client prints and distributes the Documentation, it must ensure that such Documentation clearly displays FOBOH’s logo / trademarks.
Other than as required by clause 14.7, the Client is not authorised to use FOBOH trademarks, logos, or other marks for any purpose.
This clause survives termination of this Agreement.
Confidentiality
Each party will keep confidential and protect the Confidential Information of the other, and will not disclose any Confidential Information to any third party, including applicable Fees, unless such disclosure is:
Expressly permitted by the other party;
Made to a professional advisor; or
Required to be made by law.
Except where disclosure is required by law or must be made to a legal advisor, the parties will keep the terms of this Agreement strictly confidential.
All data collected by FOBOH relating to the Client’s use of the Platform will be dealt with in accordance with the Privacy Policy.
FOBOH reserves the right to collect and analyse data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies, (including, without limitation, information concerning user data, and data derived therefrom), and FOBOH will be free (during and after the term) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other FOBOH offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.
The obligations imposed on each party by this clause survives the termination of this Agreement.
Warranties
FOBOH warrants that it is the owner or licensee of all Intellectual Property in the Platform, and, to the best of FOBOH’s knowledge, its performance of the Service does not breach the Intellectual Property or other proprietary rights of any third party.
Subject to any rights the Client may have under Australian Consumer Protection Law, FOBOH excludes to the fullest extent possible all implied terms and warranties, whether statutory or otherwise, relating to the Platform or any other matter this Agreement.
The Platform is made available to the Client on an “as is” basis. FOBOH makes no warranties, representations or conditions of any kind, express, statutory or implied as to:
The operation and functionality of the platform;
The accuracy, integrity, completeness, quality, legality, usefulness, safety and Intellectual Property rights of any of the software content; and/or
The products and services associated with the Platform or its content.
FOBOH further disclaims all warranties, express, statutory or implied, including, but not limited to, implied warranties of merchantability, merchantable quality, durability, fitness for a particular purpose and/or non-infringement.
To the maximum extent permitted by law, no further warranty, condition, undertaking or term, express or implied, statutory or otherwise as to the condition, quality, performance or fitness for purpose of the Platform provided hereunder is given or assumed by FOBOH other than as required at law.
FOBOH may rely upon third party software for certain functions of the Platform and, except as expressly stated in this Agreement, FOBOH makes no warranty or representation that such third party software will be error free.
Each party warrants that:
It has full power and authority to enter into and perform its obligations under this Agreement;
Entering into or performing its obligations under this Agreement will not give rise to any claim against either party by any third party or result in the breach of or conflict of interest under any agreement, undertaking, or court order or judgment to which it is a party; and
It is not aware of any actual or potential conflict in the execution and performance of this Agreement.
Limitation of liability
FOBOH disclaims all liability for any:
Indirect, special, incidental, punitive, exemplary, reliance or consequential damages;
Loss of profits;
Business interruption;
Network interruptions;
Loss or damage to reputation of the Client or any third party;
Loss of information or data;
All liability for any loss or damage,
relating to or arising out of Client’s use of the Platform.
The Client uses the Platform at its own discretion and risk and will be solely responsible for any resulting loss or damage, including but not limited to, any loss of data or damage to the Client’s computer(s) or networks from viruses that may be downloaded to in the course of using the Platform.
Some jurisdictions do not allow the exclusion of certain warranties, the limitation or exclusion of implied warranties, or limitations on how long an implied warranty may last. If the Client resides in such a jurisdiction, the above limitations shall apply to the Client to the fullest extent permitted under applicable law.
FOBOH’s maximum aggregate liability to the Client for any claims, damages, injuries or causes whatsoever, and regardless of the form of action (whether such liability arises due to negligence, breach of contract, misrepresentation or for any other reason), will at all times be limited to an amount equal to 25% of the Platform Fees paid by the Client to FOBOH in the 12 month period preceding the event giving raise to the liability.
In the event of failure or FOBOH’s non-provision of the Services, the Client’s sole remedy is for FOBOH to use reasonably commercial efforts to re-supply the Services.
FOBOH is not liable for, and the Client releases FOBOH of all liability for, loss or damage arising from service level failures, internet failures, data transfer failures, or other issues or delays that are not within FOBOH reasonable control.
Indemnity
The Client defends, indemnifies and holds harmless FOBOH, its members, managers, subsidiaries, affiliates, any related companies, contractors, licensors and partners, and the officers, directors, employees, agents and representatives of each of them, including for costs, liabilities and legal fees, from any claim or demand made by any third party due to or arising out of:
The Client or any Users’ access to or use of the Platform;
The Client and Users’ violation of this Agreement;
Any infringement by the Client or Users of any Intellectual Property or other right of any person or entity.
FOBOH reserves the right, at the Client’s expense, to assume the exclusive defence and control of any matter for which the Client is required to indemnify FOBOH, and the Client will cooperate with FOBOH’s defence of these claims. The Client will not settle any matter without FOBOH’s prior written consent. FOBOH will use reasonable efforts to notify the Client of any such claim, action or proceeding upon becoming aware of it.
Transfer of rights and obligations
The Client may not transfer, assign, charge or otherwise dispose of its rights or liabilities under this Agreement without FOBOH’s prior written consent.
FOBOH may transfer, assign, charge, sub-contract or otherwise dispose of any of its rights or obligations arising under this Agreement at any time without the Client’s prior consent.
Force Majeure Events
FOBOH will not be liable or responsible for any failure to perform or delay in performance of any of its obligations under this Agreement that is caused by events outside its control (Force Majeure Event).
A Force Majeure Event includes any act, event, non- happening, omission or accident beyond FOBOH’s reasonable control and includes without limitation the following:
Strikes, lockouts or other industrial action;
Civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
Fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster;
Impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;
Impossibility of the use of public or private telecommunications networks;
Epidemic, pandemic or other health emergency (whether declared or not), including without limitation lockdowns or any other restrictions imposed as a result of the COVID-19 pandemic or any other pandemic or epidemic at any time; and
The acts, decrees, legislation, regulations or restrictions of any government.
FOBOH’s performance under this Agreement is deemed to be suspended for the period that the Force Majeure Event continues, and FOBOH will have an extension of time for performance for the duration of that period. FOBOH will use its reasonable endeavours to bring the Force Majeure Event to a close or to find a solution by which FOBOH obligations under this Agreement may be performed despite the Force Majeure Event.
Subcontracting
FOBOH is entitled to sub-contract its performance of the Services to reasonably qualified third parties.
Any sub-contracting permitted under this clause 21 shall not relieve FOBOH from its obligations to the Client under this Agreement. FOBOH must ensure that any third party engaged to undertake the Services abides by the terms of this Agreement.
Freedom to Contract
Notwithstanding any other provision of this Agreement, FOBOH is free to contract with any other party to provide services of any nature, including without limitation with parties that compete with, directly or indirectly, the Client.
Period and Termination
This Agreement commences on the Commencement Date and continues for the Period, as specified in the Order, or otherwise in writing, and shall be automatically renewed for additional periods of the same duration, unless either party requests termination at least 60 days prior to the end of the then-current term.
This Agreement may be terminated without notice:
By either party if, the other party is in breach of this Agreement that is incapable of remedy;
By either party if, the other party is in breach of this Agreement and such breach is capable of remedy but remains unremedied for 30 days after the breaching party is put on written notice of the breach;
By either party if, the other party is subject to a change of control, as that term is defined in section 50AA of the Corporations Act 2001 (Cth);
By FOBOH, if the Client has not paid any Fees or other charges on time and the breach is not remedied within 5 Business Days of the due date for payment; or
By FOBOH immediately without notice, if the Client is in breach or threatens to breach any provision set out in clause 14 of this Agreement.
Should this Agreement be terminated by FOBOH pursuant to clause 24.2 or by the Client for any reason other than as set out in clause 24.2, the Client must immediately pay to FOBOH any and all unpaid and outstanding charges and Fees (including for the balance of the Period) (Cancellation Fee). In all other cases of termination, The Client must pay for the Services in full up to the end of the current billing cycle.
The Cancellation Fee is fair and reasonable as FOBOH is entering this Agreement and providing a fee structure to the Client on the basis that the Agreement will last until at least the end of the Period.
Where this Agreement is terminated by either party FOBOH will destroy or de-identify all Client Data which is no longer relevant or required to be retained. FOBOH may retain Client Data for the purposes of compliance with any applicable laws or regulations, or on a de-identified basis for the purposes of research, analysis and marketing.
Notices
Any notice or other communication to or by a party to this Agreement:
May be given by personal service, email or post;
Must be in writing, legible and in English addressed as shown at the commencement of this Agreement or to any other address last notified by the party to the sender by notice given in accordance with this clause;
Is deemed to be given by the sender and received by the addressee:
if delivered in person, when delivered to the addressee;
if by email, at the time the email is sent, unless a notice is received alerting the sender that the email was not sent; or
if posted, 2 business days after the date of posting to the addressee whether delivered or not.
but if the delivery or receipt is on a day which is not a business day or is after 4.00 pm (addressee's time) it is deemed to have been received at 9.00 am on the next business day.
Relationship
FOBOH and the Client engage with each other as service provider and customer, and FOBOH shall act as a service provider in performing its obligations under this Agreement.
Subject to the reasonable directions of the Client, FOBOH shall have exclusive control over the performance of the Services.
Nothing in this Agreement is to be construed as creating an employment relationship between the Client and FOBOH or any employee of FOBOH.
General
This Agreement contains the entire understanding between the parties concerning the subject matter of the Agreement and supersedes all prior written or verbal communications.
The Order is incorporated into and form part of the operative provisions of this Agreement.
This Agreement cannot be amended or varied except in writing and signed by the parties.
Each party must pay its own legal costs of and incidental to the preparation and completion of this Agreement.
Any part of this Agreement that is invalid, prohibited or not enforceable will not void the balance of the Agreement. All other parts will be enforced without regard to the invalid provision and continue to be valid in accordance with their terms.
The parties acknowledge that:
A single or partial exercise or waiver of a right relating to this Agreement will not prevent any other exercise of that right or the exercise of any other right;
A party will not be liable for any loss, cost or expense of any other party caused or contributed to by any waiver, exercise, attempted exercise or failure to exercise, or any delay in the exercise of, a right.
A right expressed under this Agreement may only be waived by a party in writing and communicated to the other party to the extent that is expressly set out in that waiver.
This Agreement is governed by and must be construed in accordance with the laws in force in the State of New South Wales and the parties submit to the non-exclusive jurisdiction of the Courts of New South Wales and the Commonwealth of Australia.
