CUSTOMER SERVICE AGREEMENT
The Customer and LodgeX agree as follows:
1.
By electronic acceptance of these terms and conditions,
these terms and conditions shall form the Agreement between LodgeX and the Customer.
2.
DEFINITIONS
2.1.
The following terms shall have the following
meanings in this Agreement:
2.1.1.
“ARNECC” means the Australian Registrars National Electronic Conveyancing
Council;
2.1.2.
“Client Authorisation” means the authorisation executed by the Client and provided by the Customer
to LodgeX in accordance with the published requirements as set by ARNECC and
updated from time to time;
2.1.3.
“Client” means the client of the Customer or where applicable the Customer and
is the party to the conveyancing transaction in accordance with the ECNL;
2.1.4.
“Conveyancing Transaction” has the same meaning as defined in the ECNL;
2.1.5.
“Conveyancing Work” means legal work carried out for a Client in connection with any
transaction that creates, varies, transfers, conveys or extinguishes a legal or
equitable interest in any real or personal property, such as, for example, any
of the following transactions—
(a)
the sale of a freehold interest in land;
(b)
the creation, sale or assignment of a leasehold
interest in land;
(c)
the grant of a mortgage or other charge; and/or
(d)
the transfer of an interest in property;
2.1.6.
“Customer” means the party or entity registered with LodgeX as a LAPP account
holder;
2.1.7.
“Customer
Administrator” means the person/s appointed by
the Customer with authority to operate and administer the Customer’s LAPP account;
2.1.8.
“Customer
User” means the persons authorised by the Customer
Administrator to transact within the Customer’s LAPP account
2.1.9.
“Duty Assessments” means the process of submission and verification of the requisite form as
required by each corresponding Office of State Revenue for the purposes of
enabling that Office of State Revenue to calculate the duty payable for that
Settlement and/or Transaction;
2.1.10.
“ECNL” means the Electronic Conveyancing (Adoption of National Law) Act 2012
(NSW) as implemented or adopted from State to State or Territory;
2.1.11.
“ELN” means an Electronic Lodgement Network as defined under the ECNL;
2.1.12.
“ELNO” means an Electronic Lodgement Network Operator as defined under the
ECNL;
2.1.13.
“Instruments” means such documents which are created for lodgement at the relevant LTO
for registration against the Titles Register;
2.1.14.
“LAPP” means LodgeX’s proprietary booking and workflow management platform;
2.1.15.
“LodgeX” means LodgeX Legal Pty Ltd (ACN 634 129 758) and/or its associated
entities, nominees, successors in title, assignors as published from time to
time;
2.1.16.
“LTO” means the agency responsible for maintaining the respective State’s or
Territory’s Titles Register;
2.1.17.
“Settlements” means the completion of a conveyancing transaction involving a
financial settlement via an ELNO;
2.1.18.
“Titles Register” has the same meaning as defined under the ECNL;
2.1.19.
“VOI” means a Verification Of Identity conducted for the purposes of a Conveyancing
Transaction and uploaded into Lapp and may comprise:
2.1.19.1 the Verification of
Identity Standard in accordance with the statutory requirements as published
from time to time by ARNECC; or
2.1.19.2. The taking of Reasonable
steps by the Customer acceptable and approved by LodgeX.
2.2.
Words in the singular mean and include the
plural and vice versa. Words in the masculine mean and include the feminine and
vice versa.
2.3.
Headings are inserted for the convenience of
the Parties only and are not to be considered when interpreting this Agreement.
2.4.
A party to this Agreement includes its
servants, agents and contractor and a successor in title, permitted substitute
or a permitted assign of that party.
2.5.
A reference to information is to information of
any kind in any form or medium whether formal or informal, written or unwritten
for example, computer software programs, concepts, diagrams, data, drawings,
ideas, knowledge, procedures, source codes or object codes, technology or trade
secrets;
2.6.
The word “Agreement” includes an undertaking or
other binding arrangement or understanding whether or not in writing.
2.7.
Where in this agreement a party is required to
do something by on a specific day then time is extended until the next business
day if the time for performing any action falls on a Saturday, Sunday or bank
holiday.
3.
SERVICES
PROVIDED
3.1.
The parties agree that at all times LodgeX is
transacting in its sole capacity as agent for the Customer. Acting in its
capacity as agent for the Customer, LodgeX will provide the Customer with the
following services (the "Services"):
3.1.1.
Access to its
proprietary booking and workflow management platform LAPP on a continuous user
licence;
3.1.2.
Electronic lodgement
of instruments for the completion of Conveyancing Work;
3.1.3.
Electronic settlement
of Conveyancing Transactions for the completion of Conveyancing Work;
3.1.4.
Duty Assessments for
the purposes of Conveyancing Work;
3.1.5.
Any other tasks which
the Parties may agree on; and
3.1.6.
Such further or other
services offered by LodgeX or which become available via an ELNO from time to
time.
4.
CAPACITY/INDEPENDENT
CONTRACTOR
4.1.
In providing the Services under this Agreement
it is expressly agreed that LodgeX is acting as an agent for the Customer.
LodgeX and the Customer acknowledge that this Agreement does not create a
partnership or joint venture between them, and is exclusively an agency
contract for service.
5.
CUSTOMERS
OBLIGATIONS
5.1.
The Customer undertakes and agrees to;
5.1.1.
only use LAPP for the
purposes authorised under this Agreement and not for any other purpose or in
any other manner including any commercialisation of LAPP;
5.1.2.
provide a Client Authorisation to LodgeX which
complies with all requirements and protocols in the form approved from time to time by ARNECC including where applicable
witnessing the Client Authorisation as Representative Agent for LodgeX;
5.1.3.
where the Customer
acts as the Representative Agent for LodgeX the provisions of this clause 5.1
shall be confirmation of the appointment of the Customer as the Representative
Agent for LodgeX;
5.1.4.
provide a VOI of the
Client together with certified copies of all supporting identification evidence
to LodgeX which complies with all requirements and protocols for the purposes
of conducting a VOI of the Client including where applicable acting as either
5.1.4.1 Identity
Agent; or
5.1.4.2 Agent
for
LodgeX;
5.1.5.
where the Customer
acts as the Identity Agent for LodgeX the provisions of this clause 5.1 shall
be confirmation of the appointment of the Customer as the Identity Agent for
LodgeX and the Customer shall provide LodgeX with an Identity Agent
Certification in the form appearing in Lapp;
5.1.6.
where the Customer
acts as agent for LodgeX the provisions of this clause 5.1 shall be
confirmation of the appointment of the Customer as the Agent for LodgeX and the
agency shall be limited for the specific purpose of conducting the VOI ;
5.1.7.
provide an executed
Authority to Act and Consent form in the form published by LodgeX from time to
time on LAPP;
5.1.8.
provide such other documents
as required by LodgeX for the performance of its Services in a timely manner;
5.1.9.
provide such
instructions as necessary for LodgeX to transact on behalf of the Client in an
ELNO;
5.1.10. where the Client is providing balance or all funds for settlement of a
transaction and requires the funds to be disbursed in the ELNO and sourced from
LodgeX’s trust account, to ensure that such funds are deposited and cleared
into Lodgex’s trust account at least 24 hours prior to settlement of the
particular Client transaction,
5.1.11. make payment of such fees and charges in accordance with this Agreement;
5.1.12. promptly notify LodgeX of any delay or of any circumstances which shall
result in a transaction not being finalised;
5.1.13. comply with all requirements and protocols for the conduct of electronic Conveyancing
Transactions; and
5.1.14. appoint a Customer Administrator upon registration for a Customer account.
5.2. LodgeX reserves the right to terminate or not proceed with settlement of a
transaction in circumstances where:
5.2.1 the
customer fails to provide a valid VOI of the Client within 3 business days of
settlement of a transaction;
5.2.2 the
customer fails to provide a duly signed Client Authorisation within 3 business
days of settlement of a transaction;
5.2.3 the
customer fails to provide a duly signed Authority to Act and Consent if
applicable within 3 business days of settlement of a transaction;
5.2.4 the
customer fails to ensure that cleared funds are deposited into LodgeX’s trust
account within 24 hours of settlement where such funds are required to complete
a settlement
Notwithstanding the provisions of clause 5.2.1;
5.2.2; 5.2.3; and 5.2.4 LodgeX reserves the right to elect to continue to
proceed with a transaction where a VOI, Client Authorisation or Authority to
Act and Consent are provided within 3 business days of settlement of a
transaction or cleared funds are deposited in LodgeX’s trust account within 24
hours of settlement of a transaction and in such circumstances LodgeX shall be
entitled to charge an additional uplift fee as set out in its Schedule of
Rates.
5.3. LodgeX reserves the right to terminate or not proceed with lodgement of a
transaction in circumstances where:
5.3.1 the
customer fails to provide a valid VOI of the Client;
5.3.2 the
customer fails to provide a duly signed Client Authorisation;
5.3.3 the
customer fails to provide a duly signed Authority to Act and Consent if
applicable;
5.3.4 the
customer fails to ensure that cleared funds are deposited into LodgeX’s trust
account for payment of the lodgement transaction request;
5.4. The Customer Administrator shall be responsible for:
5.4.1.
the creation,
maintenance and deletion of all Customer Users within the Customer’s LAPP account;
5.4.2.
ensuring that access
to the Customer’s LAPP account is securely maintained and restricted to
registered Customer Users;
5.4.3.
advising LodgeX
immediately upon becoming aware of any unauthorised use of the Customer’s LAPP account;
5.4.4.
ensuring that all
Customer Users enable multifactor authentication;
5.4.5.
protecting all
Customer User passwords; and
5.4.6.
notifying LodgeX
immediately if there is any breach of its computer systems, network, email
accounts, website or other systems which pose an immediate cyber security
threat.
6.
LAPP LICENCE
6.1 LodgeX retains the
intellectual property rights in LAPP and subject to the terms of this Agreement
the Customer is granted a non- transferrable and non-exclusive right to use
LAPP during the currency of this Agreement;
6.2 All applicable rights in
copyright, trademarks and trade secrets in LAPP are and will remain the sole
property of and vested in LodgeX and this Agreement does not confer any
proprietary rights upon the Customer;
6.3 LAPP is solely owned by
LodgeX. The right to use LAPP is only licensed and not sold under this
Agreement;
6.4 LAPP is protected by
national and international copyright laws and treaties. LodgeX reserves all
intellectual property rights including copyright and trademark rights in LAPP.
7.
PERFORMANCE
7.1.
The Parties agree to do everything necessary to
observe the terms of this Agreement and to ensure that the terms of this
Agreement take effect.
7.2.
LodgeX shall be entitled to rely on the
accuracy of any instructions, documents, directives, adjustments, plans,
specifications, details and other information provided by the Customer.
7.3.
The Customer acknowledges that it is their
responsibility to ensure that all instructions, documents, directions,
adjustments, information, material and details provided to LodgeX are entirely
accurate, do not contain any whole or partial untruths and comply with any
applicable laws, regulations. The Customer agrees to indemnify LodgeX against
any costs incurred by LodgeX in rectifying any such errors if required.
8.
TERM OF AGREEMENT
8.1.
The Parties agree that this Agreement shall
commence upon the Customer:
8.1.1.
By clicking “I
agree”, registering, activating or using LAPP; and/or
8.1.2.
Commencing and/or continuing
to provide instructions to LodgeX to carry out or perform work after receiving
this Agreement.
8.2.
This Agreement shall commence on the date of acceptance
of the terms and shall continue until such time as it is terminated in
accordance with the terms of this agreement.
8.3.
The parties agree that this Agreement shall be
of a continuing nature and in accordance with same the following shall apply:
8.3.1.
Any Client
Authorisation provided in accordance with this Agreement shall be in full force
and effect unless and until specifically revoked in writing;
8.3.2.
Either party may
terminate this Agreement by the giving of 30 days’ notice to the other in
writing of its intention to terminate;
8.3.3.
The termination date
shall be the date 30 days from the date of acknowledgement of receipt of notice
of termination in writing;
8.3.4.
Upon the giving of
such notice the parties shall be obliged to finalise any Services for which
instructions have been given prior to the date of receipt of termination notice
notwithstanding that such Services are finalised outside of the termination date;
8.3.5.
Upon the giving of
termination notice by either party the Customer shall promptly pay all amounts
outstanding including any amounts which shall become due in accordance with 8.3.4 to LodgeX without deduction, set off or otherwise.
8.4. LodgeX reserves the right to suspend or terminate an account due to:
8.4.1.
inactivity; or
8.4.2.
where it detects
cyber-security threat; or
8.4.3.
where the account is
operated suspiciously; or
8.4.4.
for a breach of the Customer’s
obligations or warranties pursuant to this agreement; or
8.4.5.
for any other reason;
at its discretion.
9.
CURRENCY
9.1.
Except as otherwise provided in this Agreement,
all monetary amounts referred to in this Agreement are in AUD (Australian
Dollars).
10.
PAYMENT
10.1.
LodgeX will charge the Customer fees for
services in accordance with the Service Fee Schedule as published by LodgeX
from time to time (“Service Fee Schedule”).
10.2.
The parties agree that the Service Fee Schedule
may be updated from time to time and such update will take effect from the
operating date for introduction of new pricing. The Customer agrees to accept
such updated pricing as and when effected.
10.3.
The Customer will be invoiced upon completion
of each service.
10.4.
Where a Service is not completed due to:
10.4.1. Customer request/instructions;
10.4.2. Client request/instructions;
10.4.3. Settlement not proceeding;
10.4.4. Lodgement rejection by LTO;
10.4.5. Duty form rejection by the relevant Office of State Revenue;
10.4.6. Rescission/default/breach of contract; and/or
10.4.7. Any other cancellation that is not attributable to LodgeX;
the Customer shall be
required to make payment for Services to LodgeX in accordance with the rate for
cancellation fees in the Service Fee Schedule.
10.5.
Where an invoice is generated by LodgeX for a
lodgement booking the invoice shall be due and payable upon the submission of
the lodgement booking and prior to completion of the lodgement.
10.6.
Where an invoice is generated by LodgeX for a settlement
booking the invoice shall be due and payable at settlement.
10.7.
Where payment of any invoice is made into
LodgeX’s Trust Account then the Customer shall ensure that the Client
authorises the withdrawal of that payment to LodgeX’s operating account in accordance
with Rules 42 (3), 42(4) and 42(5) of the Legal Profession Uniform Law
General Rules 2015 (NSW); Regulations 45(3) & 45(4) of the Legal
Practitioners Regulations 2014 (SA); Regulations 58(2), 58(3) & 58(4) of
the Legal Profession Regulation 2017 (Qld); Regulations 66(3) & 66(4) of
the Legal Profession Regulations 2009 (WA); Regulations 53(3) & 53(4) of
the Legal Profession Regulations 2018 (Tas); Regulations 62(3) & 62(4) of
the Legal Profession Regulation 2007 (ACT) and Regulations 68(3) & 68(4) of
the Legal Profession Regulations 2007 (NT).
10.8.
Payment of any invoice due remains the primary
responsibility of the Customer and shall not be dependent in any way in payment
being received by the Customer from the Client.
10.9.
The Customer acknowledges that LodgeX may pay a
financial benefit to a Third Party for referral of any Client. Where such
financial benefit is paid it shall not affect the quality or independence of
LodgeX in providing the Services to the Client and the Third Party shall have
no interest in the Services upon referral to LodgeX.
10.10.
Where a Client has been referred to LodgeX by a
Third Party then it may, prior to engaging LodgeX refuse to enter into this
Agreement if it objects to the payment of any financial benefit to the
referring Third Party.
10.11.
All invoices are GST inclusive unless stated
otherwise.
11.
REIMBURSEMENT
OF DISBURSEMENTS
11.1.
The Customer shall ensure that the Client
authorises LodgeX to immediately transfer any trust moneys in reimbursement of
disbursements incurred by LodgeX for any Service provided by LodgeX.
11.2.
In addition to its fees and charges, the Customer
agrees to reimburse LodgeX for all necessary fees and expenses incurred by LodgeX
in connection with providing the Services including but not limited to LTO
fees, Office of State Revenue fees and any ELNO fees.
11.3.
The Customer acknowledges that any fees
incurred by LodgeX in the performance of its agency retainer are fees which are
the primary responsibility of the Customer and agrees to indemnify LodgeX for
such fees and expenses to any third party to which they are due and payable
including but not limited to an LTO, an Office
of State Revenue or an ELNO.
12.
CERTIFICATES
OF TITLE
12.1.
The Customer shall ensure that the Client
agrees that where applicable, control of an electronic certificate of title
(eCT) shall pass to and remain with LodgeX upon completion of a Service.
12.2.
Where eCT passes to LodgeX then LodgeX shall be
responsible for maintaining a record of the eCT on its register and making the
eCT available for any subsequent Services upon request by the Customer or the
Client.
12.3.
The Customer shall ensure that the Client agrees
to make payment of such administrative charges as may be published by LodgeX
from time to time in respect of its obligations pursuant to this clause.
13.
CONFIDENTIALITY
13.1.
Confidential Information (the "Confidential
Information") refers to any data or information relating to the
business of the Customer or Client which would reasonably be considered to be
proprietary to the Customer or Client and that is not generally known in the
industry of the Customer or Client and where the release of that Confidential
Information could reasonably be expected to cause harm to the Customer or
Client.
13.2.
Confidential Information also refers to any
data or information relating to the business of LodgeX which would reasonably
be considered to be proprietary to LodgeX and that is not generally known in
the industry of LodgeX and where the release of that Confidential Information
could reasonably be expected to cause harm to LodgeX.
13.3.
LodgeX agrees that it will not disclose,
divulge, reveal, report or use, for any purpose, any confidential information
which LodgeX has obtained, except as authorised by the Customer or Client or as
required by law. The obligations of confidentiality will apply during the term
of this Agreement and will survive indefinitely upon termination of this
Agreement.
13.4.
The Customer agrees that they will not
disclose, divulge, reveal, report or use, for any purpose, any confidential
information which the Customer has obtained, except as authorised by LodgeX or
as required by law. The obligations of confidentiality will apply during the
term of this Agreement and will survive indefinitely upon termination of this
Agreement.
13.5.
All written and oral information and material
disclosed or provided by the Customer or Client to LodgeX under this Agreement
is Confidential Information regardless of whether it was provided before or
after the date of this Agreement or how it was provided to LodgeX.
13.6.
All written and oral information and material
disclosed or provided by LodgeX to the Customer under this Agreement is
Confidential Information regardless of whether it was provided before or after
the date of this Agreement or how it was provided to the Customer.
14.
PRIVACY
14.1.
The customer agrees that, at the time of entry
into this agreement, it has received a copy or accessed a copy of LodgeX’s
Privacy Policy (“Privacy Policy”) which
is published on LodgeX’s website.
14.2.
LodgeX undertakes to comply with its Privacy
Policy as published on its website and Lapp and updated from time to time.
14.3.
In addition LodgeX will comply with the privacy
principles in relation to the handling of Personal Information which comes into
its possession or control when providing the services.
14.4.
The Customer undertakes and agrees that at the
time of providing instructions, which include Personal Information of a Client,
that is has procured the consent of the Client to whom the Personal Information
relates to disclose the Personal Information to LodgeX for use in an ELNO.
14.5.
The disclosure of the Personal Information
shall include such disclosure as detailed in the Privacy Policy, including but
not limited to disclosure to other participants in an ELNO workspace or to such
government body or agency as required for the purposes of a transaction or
lodgement.
15.
OWNERSHIP OF
INTELLECTUAL PROPERTY
15.1.
All intellectual property including but not
limited to LAPP and related material, including any trade secrets, moral
rights, goodwill, relevant registrations or applications for registration, and
rights in any patent, copyright, design, trade mark, trade dress, industrial
design and trade name (the "Intellectual Property") that is
developed or produced under this Agreement, will be the sole property of LodgeX.
The use of the Intellectual Property by LodgeX will not be restricted in any
manner.
15.2.
The Customer agrees and grants to LodgeX an irrevocable
unrestricted royalty free licence to use all data provided by the Customer to LodgeX
for the use of LodgeX in the performance of its Services under this Agreement for
provision of the Services and in relation to this Agreement.
15.3.
The Customer may not use LAPP or any other intellectual
property for any purpose other than that contracted for in this Agreement
except with the written consent of LodgeX.
15.4.
The Customer will be responsible for any and
all damages resulting from any unauthorised use of LAPP and any other
Intellectual Property.
16.
RETURN OF
PROPERTY
16.1.
Upon the expiry or termination of this
Agreement, LodgeX will return to the Customer any property, documentation,
records, or Confidential Information which is the property of the Customer.
17.
LIMITATION
OF LIABILITY
17.1.
The Australian Consumer Law as defined
under Schedule 2 of the Competition and Consumer Act 2010 (Cth) (“ACL”)
provide consumers with certain consumer guarantees and rights in relation to
certain transactions concerning goods and/or services (see
www.consumerlaw.gov.au). Any rights the Customer
may have as a consumer under the ACL will apply regardless of any inconsistent
provisions in this Agreement which will be read down to the extent necessary to
comply with the ACL and these Terms will otherwise apply to the fullest extent
legally permissible.
17.2.
If the Customer is a consumer within the
meaning of the ACL, LodgeX’s liability is limited to the extent permitted by
section 64A of Schedule 2, and in the event that any statute implies any term
condition or warranty into this Agreement which cannot be lawfully excluded,
those implied terms, conditions or warranties will apply, save that the
liability of LodgeX for breach of any such implied term, condition or warranty
will be limited to the fullest extent permissible under law including the ACL,
at the option of LodgeX, to any one or more of the following:
17.2.1. the supplying of the services again or the supply of equivalent services;
17.2.2. the payment or offset of the cost of having the services supplied again.
17.3.
LodgeX excludes all liability in contract, tort
(including negligence) or otherwise for any direct, indirect, incidental,
punitive, special or consequential damages (including damages for loss of
business revenue or profits, business interruption, loss of business
information and the like), arising out of or in relation to the Services or any
other goods or services provided by LodgeX, even if LodgeX has been advised of
the possibility of such damages. Where LodgeX has been advised by a third party
of the possibility of such damages to a third party, LodgeX will notify the Customer
of the possibility as soon as reasonably practicable, and in the event that LodgeX
has been so advised and does not comply with this requirement, the exclusion
set out herein will not apply PROVIDED HOWEVER THAT in any event, any liability
of LodgeX is limited to and does not exceed the payment or offset of the cost
of replacing the goods or of acquiring equivalent goods or having the Services
supplied again.
17.4.
To the fullest extent permissible by law, LodgeX
will not be liable for any indirect or consequential loss or damages or loss of
profits arising out of a breach of this Agreement or otherwise relating to or
arising from the provision of any of the Services by LodgeX.
18.
WARRANTIES
18.1.
The Customer warrants to LodgeX that at the
date of instructing LodgeX:
18.1.1. where the Customer is an Australian Legal Practitioner that it holds a
current practising certificate and corresponding professional indemnity
insurance;
18.1.2. where the Customer is a Licensed or Registered Conveyancer that it holds a
current conveyancing licence or registration as applicable per state licensing
or registration requirements and corresponding professional indemnity insurance;
18.1.3. where the Customer is a licensed Settlement Agent that it holds a
Settlement Agents licence and corresponding professional indemnity insurance;
18.1.4. where the Customer is an Authorised Deposit-taking Institution (ADI) that
it holds a current licence issued by the Australian Prudential Regulatory
Authority (APRA) and is covered under the Financial Claims Scheme;
18.1.5. where the Customer engages in financial services as defined under the Corporations
Act 2001 (Cth) that it holds an Australian Financial Services Licence and
corresponding professional indemnity insurance;
18.1.6. where the Customer engages in credit activities as defined in the National
Consumer Credit Protection Act 2009 (Cth) it holds a current credit licence
and corresponding professional indemnity insurance;
18.1.7. where the Customer is a corporation that it is duly registered in
accordance with the Corporations Act 2001 (Cth) and that its authorised
office holds requisite delegation of authority;
18.1.8. where the Customer is a Statutory Authority that it is duly incorporated
in accordance with the relevant Commonwealth or State legislation and that its
authorised officer holds requisite delegation of authority;
18.1.9. where the Customer is a Customer of a professional body or association
that the Customer holds appropriate registration with its corresponding
professional body or association.
18.2.
The Customer warrants to LodgeX that at the
date of instructing LodgeX:
18.2.1. where it has received instructions from the Client that those
instructions have been given clearly and of the Client’s own free will and
without undue influence or coercion or breach of fiduciary duty;
18.2.2. that it has clearly communicated to the Client its rights, entitlements
and responsibilities in relation to:
a. trust moneys;
b. payment of any referral commission;
c. retention of eCT control;
d. use of Client’s data and information.
18.2.3. where it has provided instructions to LodgeX from a corporate client that
those instructions have been provided by a duly authorised officer of that
corporation.
18.3.
The above warranties shall enure for the
duration of the Agreement and for a period of no less than 7 years from the
date of termination of this Agreement.
19.
INDEMNIFICATION
19.1.
Except to the extent paid in settlement from
any applicable insurance policies, and to the extent permitted by applicable
law, the Customer agrees to indemnify and hold harmless LodgeX, and its
respective directors, shareholders, affiliates, officers, agents, employees,
and permitted successors and assigns against any and all claims, losses,
damages, liabilities, penalties, punitive damages, expenses, reasonable legal
fees and costs of any kind or amount whatsoever, which result from or arise out
of any act or omission of the Customer, its respective directors, shareholders,
affiliates, officers, agents, employees, and permitted successors and assigns
that occurs in connection with this Agreement. This indemnification will
survive the termination of this Agreement.
19.2.
The Customer will indemnify and keep
indemnified LodgeX and their respective employees and agents from and against
all claims, demands, proceedings, damages, costs, expenses, losses or any other
liability whatsoever arising wholly or partly, directly or indirectly in
connection with any goods or services sought, unsought, supplied or expressly
or impliedly approved by LodgeX including but not limited to any breach of any
law or regulation or for any breach of any legal, equitable or other rights of any
person, firm, corporation or entity, including claims of negligence.
19.3.
The indemnities provided pursuant to this
clause shall apply to any outages planned or unplanned, losses, interruption,
routine maintenance, peak demand occasioned by the Customer’s use of LAPP in
accordance with this Agreement.
20.
MODIFICATION
OF AGREEMENT
20.1.
LodgeX may vary or modify any term or terms of
this agreement with immediate effect where:
20.1.1. the variation or modification is published on LodgeX’s website;
20.1.2. the variation or modification is necessary to comply with ARNECC or an ELNO;
20.1.3. the variation or modification is required by operation of law;
20.1.4. the variation or modification is an amendment to LodgeX’s pricing policy;
20.1.5. the variation or modification is an amendment to LodgeX’s services and
results in an improvement of the services or increased offerings;
20.1.6. the variation or modification is not a material change to the Agreement.
21.
NOTICE
21.1.
All notices, requests, demands or other
communications required or permitted by the terms of this Agreement shall be
given in writing and delivered to the Parties at the addresses provided by the Customer
upon registration or request for an account with LodgeX or to such other
address as either Party may from time to time notify the other.
22.
TIME OF THE
ESSENCE
22.1.
Time is of the essence in this Agreement. No
extension or variation of this Agreement will operate as a waiver of this
provision.
23.
ASSIGNMENT
23.1.
LodgeX may by notice given within 14 days,
assign or otherwise transfer its obligations under this Agreement without the
prior written consent of the Customer.
24.
ENTIRE
AGREEMENT
24.1.
It is agreed that there is no representation,
warranty, collateral agreement or condition affecting this Agreement except as
expressly provided in this Agreement.
25.
DISPUTE
RESOLUTION
25.1.
The parties agree that in the event a dispute
arises the following procedure shall apply:
25.1.1. Where the dispute is in relation to costs, the Customer shall first
ensure that all disbursements due have been paid/reimbursed to LodgeX prior to
issuing a “dispute notice”.
25.1.2. A party shall issue a “dispute notice” in writing which dispute notice
shall confirm that it is issued in accordance with this clause 25 and shall contain sufficient particulars as to the dispute
25.2.
Within seven (7) days of the issue of a dispute
notice the parties shall arrange for their respective representatives who shall
hold sufficient authority to bind their respective party to meet with a view to
reaching resolution of the dispute;
25.3.
If resolution is reached pursuant to clause 25.2 herein then the terms of the resolution shall
be documented and executed by the representatives of the parties;
25.4.
If the dispute is not resolved then the parties
shall participate in mediation by an independent mediator agreed between the
parties or failing agreement as appointed by the president of the Law Institute
of Victoria;
25.5.
If the dispute is not resolved at mediation
then the parties shall be entitled to seek legal redress.
26.
ENUREMENT
26.1.
This Agreement will enure to the benefit of and
be binding on the Parties and their respective heirs, executors, administrators
and permitted successors and assigns.
27.
GOVERNING
LAW
27.1.
This Agreement will be governed by and
construed in accordance with the laws of the State of Victoria and the parties
agree to submit to courts of Victoria.
28.
SEVERABILITY
28.1.
In the event that any of the provisions of this
Agreement are held to be invalid or unenforceable in whole or in part, all
other provisions will nevertheless continue to be valid and enforceable with
the invalid or unenforceable parts severed from the remainder of this
Agreement.
29.
WAIVER
29.1.
The waiver by either Party of a breach,
default, delay or omission of any of the provisions of this Agreement by the
other Party will not be construed as a waiver of any subsequent breach of the
same or other provisions.