Terms of service

1. Formation

This agreement is made between livepro Australia Pty Ltd ABN 92 095 140 775 (livepro) and any entity that uses the Services (Client). The Client is bound by these terms of service on execution of these terms of service; or when the Client uses livepro it agrees to be bound by these terms of service.

2. Term

This agreement starts when Client begins using livepro or two months after the date the Contract is signed (whichever is the earliest) and will continue until the Client ceases using livepro, unless terminated in accordance with this agreement.

3. Services

3.1 livepro will provide the Services in accordance with this agreement.

3.2 livepro will provide the Client with additional training in the use of the Services from time to time as required or requested by the Client, and the Client may be required to pay additional fees for such training.

3.3 The Client will have access to livepro’s technical support and may use call-in technical support during normal business hours. Service requests must be communicated by telephone or email and must provide sufficient information to enable livepro to replicate and diagnose the reported problem. If necessary and subject to normal security procedures, livepro support staff may access the Client’s data on the Service to diagnose and deal with reported errors.

4. Client responsibilities

4.1 The Client is responsible for:

(a) understanding and complying with its contractual obligations to livepro;

(b) notifying livepro of changes made to technical or administrative contact information;

(c) maintaining its own system(s) of record;

(d) ensuring the supervision, management, and control of the use of the Services by its personnel;

(e) developing its own disaster recovery and business continuity plans that address the inability to access or utilize the Services.

(f) providing livepro with a list of approvers for security and system configuration changes for data transmission; and

(g) immediately notifying livepro of any actual or suspected information security breaches, including compromised user accounts, including those used for integrations and secure file transfers.

5. Fees and Payment

5.1 The Client must pay the $fees plus GST paid annually in advance for the Services. Client must pay invoices within thirty (30) days of the date of issue of the invoice.

6. Intellectual Property Rights

6.1 The Client owns all rights (including intellectual property rights), title and interest to the Client Content. The Client grants livepro a non-exclusive licence to use the Client Content for the purpose of performing livepro’s obligations under this agreement.

6.2 The Client consents to livepro using the Client’s company name and reproducing the Client’s logos for livepro’s promotional and publicity purposes.

6.3 livepro owns all rights (including intellectual property rights), title and interest to its software and training materials. livepro grants the Client a non-exclusive and non-transferable licence to use its software and training materials for the term of this agreement.

7. Liability and Indemnity

7.1 The Services are provided as is and the Client agrees that its use of the Services is at its own risk. Unless mentioned in this agreement, livepro makes no representations or warranties in relation to the Services or any products provided by third parties.

7.2 livepro excludes liability for:

(a) any costs, expenses, claims or liability suffered or incurred by the Client as a result of livepro complying with the Client’s directions;

(b) any indirect liability, that is, any liability not arising naturally in the ordinary course of things from the relevant event or circumstance giving rise to the liability;

(c) any loss of profit, loss of business opportunities, loss of software or loss of data, in each case whether such loss is direct or indirect, arising in connection with this agreement; and

(d) any claim or demand brought by third parties.

7.3 To the extent permitted by law, livepro’s aggregate liability arising in connection with this agreement will not exceed the fees paid by the Client under this agreement in the 90 days preceding the date of the claim.

7.4 livepro will not be liable for any delay or non-performance of livepro’s obligations under this agreement if it is caused by a circumstance beyond livepro’s reasonable control.

8. Suspension and Termination

8.1 Without limiting any remedies available to livepro under this agreement or at law, livepro may suspend the Services and/or terminate this agreement with notice to the Client if:

(a) the Client fails to remedy a breach within 7 days of a notice from livepro requesting the Client to do so;

(b) the fees are outstanding for more than 7 days past the due date; or

(c) the Client becomes insolvent.

8.2 Without limiting any remedies available to the Client under this agreement or at law, the Client may terminate this agreement with notice to livepro if:

(a) livepro fails to remedy a breach within 7 days of a notice from the Client requesting livepro to do so; or

(b) livepro becomes insolvent.

8.3 Either party may terminate this agreement at any time by giving the other party at least 90 days’ prior written notice. In this instance, any prepaid fees applicable to the unused portion of any Services will be refunded to the Client.

8.4 Upon the termination of this agreement for any reason, the Client must pay all outstanding fees.

9. General Terms

9.1 livepro may sub-contract the performance of any part of the Services to any third party or assign or novate this agreement or any of livepro’s rights or obligations under this agreement.

9.2 This agreement contains the entire understanding between the parties concerning the subject matter of the agreement and supersedes all prior communications.

9.3 The failure of either party to enforce any provisions under this agreement will not waive the right of such party thereafter to enforce any such provisions.

9.4 All notices and consents relating to this agreement must be in writing and sent by email.

9.5 If any term or provision of this agreement is held by a court to be illegal, invalid or unenforceable under the applicable law, that term or provision will be severed from this agreement and the remaining terms and conditions will be unaffected.

9.6 This agreement is governed by, and construed in accordance with the laws of New South Wales. The parties agree to submit to the non-exclusive jurisdiction of the courts of New South Wales.

10. Force Majeure

10.1 livepro is not liable for any delay or failure to perform its obligations if such failure is due to Force Majeure.

10.2 If a failure or delay is caused or anticipated by Force Majeure, livepro’s obligations will be suspended. If a delay or failure by livepro to deliver its obligations due to Force Majeure exceeds 60 days, livepro may immediately terminate.

11. Confidentiality

Nothing in this Contract prohibits disclosure of information which:

(a) is in the public domain otherwise than a result of a breach of this clause;

(b) is received from a third party provided that it was not acquired directly or indirectly by that third party as a result of a breach of this clause;

(c) is required to be disclosed by law or any government or governmental body, authority, agency or stock exchange having authority over a party;

(d) is disclosed by us as part of a bona fide potential sale of our assets, shares in us or shares of any company of which we are a wholly owned subsidiary; or

(e) is for the purposes of providing legal advice.

11.3 Each party (Receiving Party) who receives Confidential Information of the other party (Disclosing Party) must return to the Disclosing Party that Confidential Information and all copies made of that Confidential Information:

(a) when notified to do so; and

(b) on the termination or expiration of this Contract.

12. Definitions

12.1 In this agreement:

(a) Associates mean the officers, directors, employees, subcontractors, consultants or agents of a party.

(b) Client Content means all information and materials stored in livepro by the Client in connection with this agreement.

(c) Force Majeure means any delays or failure to perform obligations under the agreement which results from circumstances beyond the reasonable control of that party.

(d) Pre-Existing Materials mean any of livepro’s materials existing at the date of this agreement, including all trademarks, designs, design specifications, software, hardware or other documentation and materials used in livepro’s business or operations.

(e) Services means the livepro software, training and any other services or software livepro provides to the Client.

1. Formation

This agreement is made between livepro Australia Pty Ltd ABN 92 095 140 775 (livepro) and any entity that uses the Services (Client). The Client is bound by these terms of service on execution of these terms of service; or when the Client uses livepro it agrees to be bound by these terms of service.

2. Term

This agreement starts when Client begins using livepro or two months after the date the Contract is signed (whichever is the earliest) and will continue until the Client ceases using livepro, unless terminated in accordance with this agreement.

3. Services

3.1 livepro will provide the Services in accordance with this agreement.

3.2 livepro will provide the Client with additional training in the use of the Services from time to time as required or requested by the Client, and the Client may be required to pay additional fees for such training.

3.3 The Client will have access to livepro’s technical support and may use call-in technical support during normal business hours. Service requests must be communicated by telephone or email and must provide sufficient information to enable livepro to replicate and diagnose the reported problem. If necessary and subject to normal security procedures, livepro support staff may access the Client’s data on the Service to diagnose and deal with reported errors.

4. Client responsibilities

4.1 The Client is responsible for:

(a) understanding and complying with its contractual obligations to livepro;

(b) notifying livepro of changes made to technical or administrative contact information;

(c) maintaining its own system(s) of record;

(d) ensuring the supervision, management, and control of the use of the Services by its personnel;

(e) developing its own disaster recovery and business continuity plans that address the inability to access or utilize the Services.

(f) providing livepro with a list of approvers for security and system configuration changes for data transmission; and

(g) immediately notifying livepro of any actual or suspected information security breaches, including compromised user accounts, including those used for integrations and secure file transfers.

5. Fees and Payment

5.1 The Client must pay the $fees plus GST paid annually in advance for the Services. Client must pay invoices within thirty (30) days of the date of issue of the invoice.

6. Intellectual Property Rights

6.1 The Client owns all rights (including intellectual property rights), title and interest to the Client Content. The Client grants livepro a non-exclusive licence to use the Client Content for the purpose of performing livepro’s obligations under this agreement.

6.2 The Client consents to livepro using the Client’s company name and reproducing the Client’s logos for livepro’s promotional and publicity purposes.

6.3 livepro owns all rights (including intellectual property rights), title and interest to its software and training materials. livepro grants the Client a non-exclusive and non-transferable licence to use its software and training materials for the term of this agreement.

7. Liability and Indemnity

7.1 The Services are provided as is and the Client agrees that its use of the Services is at its own risk. Unless mentioned in this agreement, livepro makes no representations or warranties in relation to the Services or any products provided by third parties.

7.2 livepro excludes liability for:

(a) any costs, expenses, claims or liability suffered or incurred by the Client as a result of livepro complying with the Client’s directions;

(b) any indirect liability, that is, any liability not arising naturally in the ordinary course of things from the relevant event or circumstance giving rise to the liability;

(c) any loss of profit, loss of business opportunities, loss of software or loss of data, in each case whether such loss is direct or indirect, arising in connection with this agreement; and

(d) any claim or demand brought by third parties.

7.3 To the extent permitted by law, livepro’s aggregate liability arising in connection with this agreement will not exceed the fees paid by the Client under this agreement in the 90 days preceding the date of the claim.

7.4 livepro will not be liable for any delay or non-performance of livepro’s obligations under this agreement if it is caused by a circumstance beyond livepro’s reasonable control.

8. Suspension and Termination

8.1 Without limiting any remedies available to livepro under this agreement or at law, livepro may suspend the Services and/or terminate this agreement with notice to the Client if:

(a) the Client fails to remedy a breach within 7 days of a notice from livepro requesting the Client to do so;

(b) the fees are outstanding for more than 7 days past the due date; or

(c) the Client becomes insolvent.

8.2 Without limiting any remedies available to the Client under this agreement or at law, the Client may terminate this agreement with notice to livepro if:

(a) livepro fails to remedy a breach within 7 days of a notice from the Client requesting livepro to do so; or

(b) livepro becomes insolvent.

8.3 Either party may terminate this agreement at any time by giving the other party at least 90 days’ prior written notice. In this instance, any prepaid fees applicable to the unused portion of any Services will be refunded to the Client.

8.4 Upon the termination of this agreement for any reason, the Client must pay all outstanding fees.

9. General Terms

9.1 livepro may sub-contract the performance of any part of the Services to any third party or assign or novate this agreement or any of livepro’s rights or obligations under this agreement.

9.2 This agreement contains the entire understanding between the parties concerning the subject matter of the agreement and supersedes all prior communications.

9.3 The failure of either party to enforce any provisions under this agreement will not waive the right of such party thereafter to enforce any such provisions.

9.4 All notices and consents relating to this agreement must be in writing and sent by email.

9.5 If any term or provision of this agreement is held by a court to be illegal, invalid or unenforceable under the applicable law, that term or provision will be severed from this agreement and the remaining terms and conditions will be unaffected.

9.6 This agreement is governed by, and construed in accordance with the laws of New South Wales. The parties agree to submit to the non-exclusive jurisdiction of the courts of New South Wales.

10. Force Majeure

10.1 livepro is not liable for any delay or failure to perform its obligations if such failure is due to Force Majeure.

10.2 If a failure or delay is caused or anticipated by Force Majeure, livepro’s obligations will be suspended. If a delay or failure by livepro to deliver its obligations due to Force Majeure exceeds 60 days, livepro may immediately terminate.

11. Confidentiality

Nothing in this Contract prohibits disclosure of information which:

(a) is in the public domain otherwise than a result of a breach of this clause;

(b) is received from a third party provided that it was not acquired directly or indirectly by that third party as a result of a breach of this clause;

(c) is required to be disclosed by law or any government or governmental body, authority, agency or stock exchange having authority over a party;

(d) is disclosed by us as part of a bona fide potential sale of our assets, shares in us or shares of any company of which we are a wholly owned subsidiary; or

(e) is for the purposes of providing legal advice.

11.3 Each party (Receiving Party) who receives Confidential Information of the other party (Disclosing Party) must return to the Disclosing Party that Confidential Information and all copies made of that Confidential Information:

(a) when notified to do so; and

(b) on the termination or expiration of this Contract.

12. Definitions

12.1 In this agreement:

(a) Associates mean the officers, directors, employees, subcontractors, consultants or agents of a party.

(b) Client Content means all information and materials stored in livepro by the Client in connection with this agreement.

(c) Force Majeure means any delays or failure to perform obligations under the agreement which results from circumstances beyond the reasonable control of that party.

(d) Pre-Existing Materials mean any of livepro’s materials existing at the date of this agreement, including all trademarks, designs, design specifications, software, hardware or other documentation and materials used in livepro’s business or operations.

(e) Services means the livepro software, training and any other services or software livepro provides to the Client.

1. Formation

These terms of service (this “Agreement”) are entered into between Livepro, Inc. (“livepro”) and the client set forth on the signature page hereto (the “Client”). The Client is bound by this Agreement on execution of this Agreement; or when the Client uses livepro’s Services (as defined in Section 11 below) it agrees to be bound by this Agreement.

2. Term

This Agreement starts on the effective date set forth on the signature page hereto and will continue until the Client ceases using livepro, unless terminated in accordance with this Agreement.

3. Services

3.1 livepro will provide the Services in accordance with this Agreement.

3.2 livepro will provide the Client with additional training in the use of the Services from time to time as required or requested by the Client, and the Client may be required to pay additional fees for such training.

3.3 The Client will have access to livepro’s technical support during the following hours: 24 hours 365 days. Service requests must be communicated by telephone or email and must provide sufficient information to enable livepro to replicate and diagnose the reported problem. If necessary and subject to Section 9, livepro support staff may access the Client’s data on the Service to diagnose and deal with reported issues.

4. Fees and Payment

4.1 The Client must pay all fees plus all taxes, however levied (including without limitation applicable U.S. federal, state, and local sales taxes or withholding tax), arising as a result of this Agreement, other than taxes based on livepro’s net income. The Client must pay invoices within thirty (30) days of the date of issue of the invoice.

5. Intellectual Property Rights

5.1 The Client owns all rights (including intellectual property rights), title and interest to the Client Content. The Client grants livepro a non-exclusive license to use the Client Content for the purposes of performing livepro’s obligations under this Agreement and improving and enhancing the Services.

5.2 livepro may not use the Client’s company name or reproduce the Client’s logos for livepro’s promotional and publicity purposes without Client’s express written permission.

5.3 As between livepro and the Client, livepro owns or has all rights (including intellectual property rights), title and interest to the Services. livepro grants the Client only a non-exclusive, non-sublicenseable and non-transferable right to use its Services, as provided by livepro, for the term of this Agreement. livepro grants no rights to the Client except as expressly set forth in this Agreement, and subject to the immediately-preceding sentence, livepro reserves all of its rights (including without limitation intellectual property rights) in the Services.

5.4 The Client shall not make any Services available to any third person; use any Services in any unlawful manner; copy any Services; use any Services in any manner competitive to livepro; reverse engineer or create any derivative work from any Services; use any Services to transmit any malicious code or other harmful material; attempt to bypass or disable any security measures or other restrictions on the Services; or interfere with or disrupt the Services.

6. Liability

6.1 THE SERVICES ARE PROVIDED “AS IS” AND “WITH ALL FAULTS” AND THE CLIENT AGREES THAT ITS USE OF THE SERVICES IS AT ITS OWN RISK. UNLESS MENTIONED IN THIS AGREEMENT, LIVEPRO MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, IN RELATION TO THE SERVICES OR ANY PRODUCTS OR SERVICES PROVIDED BY THIRD PARTIES except that livepro represents that the Services, as provided by livepro, will not infringe a third party’s intellectual property rights. livepro expressly disclaims any implied warranties of merchantability or fitness for a particular purpose.

6.2 THE CLIENT AGREES THAT LIVEPRO HAS NO LIABILITY FOR:
(a) any costs, expenses, claims or other liabilities suffered or incurred by the Client as a result of livepro complying with the Client’s directions;
(b) without limitation of Section 6.2(c), all indirect, incidental, consequential, special or exemplary damages, in each case, arising in connection with this Agreement, even if livepro has been advised of the possibility of such damages; and
(c) without limitation of Section 6.2(b), all loss of profit, loss of business opportunities, loss of software, loss of data, and theft of or unauthorized access to data, in each case, whether such damages are direct or indirect, arising in connection with this Agreement, even if livepro has been advised of the possibility of such damages.

6.3 TO THE EXTENT PERMITTED BY LAW, THE CLIENT AGREES TO LIMIT THE AMOUNT OF DAMAGES PAYABLE BY LIVEPRO. LIVEPRO’S AGGREGATE LIABILITY ARISING IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY THE CLIENT UNDER THIS AGREEMENT IN THE 90 DAYS PRECEDING THE DATE OF THE SUBJECT CLAIM (THE “CAP”). The Cap will not apply to a third-party claim against Client that livepro’s provision of the Services to Client infringe a third party’s intellectual property rights.

6.4 THE LIABILITY LIMITS IN SECTION 6.2 AND 6.3 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF LIVEPRO HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES; AND (d) EVEN IF CLIENT’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.

6.5 livepro will not be liable for any delay or nonperformance of its obligations under this Agreement if it is caused by a circumstance beyond livepro’s reasonable control.

6.6 The parties agree that they would not have entered into this Agreement without the limitations of liability in this Section 6. Without these limitations of liability, the provisions of this Agreement, including any economic terms, would be substantially different.

7. Indemnification

7.1 livepro agrees to indemnify and hold harmless the Client from and against losses, damages, liabilities, costs and expenses, including reasonable attorney’s fees, as incurred, arising out of any claim that livepro does not possess all rights necessary to deliver the Services to the Client.

7.2 The Client agrees to indemnify and hold harmless livepro and its subsidiaries from and against any third-party claims, including reasonable attorney’s fees, as incurred, arising in any manner out of the Client’s use of the Services.

8. Suspension and Termination

8.1 Without limiting any remedies available to livepro under this Agreement or at law, livepro may suspend the Services and/or terminate this Agreement with notice to the Client if: (a) the Client fails to remedy a breach within 7 days of a notice from livepro requesting the Client to cure such breach; (b) the fees are outstanding for more than 7 days past the due date therefor; or (c) the Client becomes Insolvent. A party is “Insolvent” if it (i) discontinues its business operations; (ii) makes an assignment for the benefit of its creditors or an admission of its inability to pay its obligations as they become due; or (iii) files or has filed against it, a petition in bankruptcy or any similar proceeding or files any pleading seeking any reorganization, liquidation, or dissolution under any law, or admits or fails to contest the material allegations of any such pleading filed against it, or is adjudicated as bankrupt or insolvent, or a receiver is appointed for a substantial part of such party’s assets, or the claims of creditors of such party are abated or subject to a moratorium under any law.

8.2 Without limiting any remedies available to the Client under this Agreement or at law, the Client may terminate this Agreement with notice to livepro if: (a) livepro fails to remedy a breach within 7 days of a notice from the Client requesting livepro to cure such breach; or (b) livepro becomes Insolvent.

8.3 Either party may terminate this Agreement at any time by giving the other party at least 90 days’ prior written notice. In this instance, any prepaid fees applicable to the unused portion of any Services will be refunded to the Client.

8.4 Upon the termination of this Agreement for any reason, other than livepro’s breach, the Client must pay all outstanding fees.

8.5 Upon request by the Client made within 30 days following the effective date of termination of this Agreement, Livepro agrees to send Client Content back to the Client (or make Client Content available for download) and delete remaining copies of Client Content.

9. Information Security and Privacy

9.1 livepro shall maintain reasonable information security policies, procedures and standards. Without limiting the generality of the foregoing, livepro will take reasonable measures to secure and defend its location and equipment against “hackers” and others who may seek, without authorization, to modify or access livepro systems or the information found therein without the consent of livepro or the Client. livepro will periodically test its systems used to provide the Services for potential areas where security could be breached, as deemed reasonably necessary by livepro.

9.2 The Client is solely responsible and liable for the security of its livepro account, including the access to and use of its account by each of its users. Each user must have its own unique access credentials (for example, user passwords and sign-in information), which cannot be shared and must be kept confidential.

9.3 The Client is solely responsible and liable for all of the Client Content, including the accuracy, quality, integrity, legality, reliability and appropriateness of the Client Content, including personally identifiable information (“PII”) contained in such Client Content. The Client represents and warrants that, at all times during the term of the Agreement: (a) the Client will comply with all applicable law, provide all required notices, and receive any required authority or consent for livepro to access, collect, store, process, use, disclose, or transfer the Client Content (including any PII contained therein) to perform the Services or as otherwise authorized by this Agreement or directed by the Client; (b) the Client will create or obtain the Client Content lawfully; and (c) the Client Content does not violate any law or any third party’s rights.

9.4 The Client is solely responsible and liable for responding to any requests under applicable law relating to PII in the Client Content (“Privacy Request”). If livepro receives a Privacy Request, it will inform Client of the request and inform the requestor to make the request directly to the Client.

9.5 The party discovering any Security Incident (as defined in Section 11 below) shall give the other party notice of the Security Incident as soon as practical, and no more than 3 business days after discovering the Security Incident. To the extent that applicable law requires notice of the Security Incident to be provided to the subjects of PII, governmental authorities, or other third parties, the Client is responsible for such notification, but the Client must obtain livepro’s written consent to name or otherwise identify livepro in any such notification. livepro is also permitted (but not required) to send any notification of the Security Incident required under applicable law.

10. General Terms

10.1 livepro may sub-contract the performance of any part of the Services to any third party provided that livepro will remain liable for the acts and omissions of its subcontractor. Further, livepro may assign this Agreement or any of livepro’s rights or obligations under this Agreement in connection with a change of control of livepro, and to an affiliate. The Client may not assign this Agreement or any of its rights or obligations under this Agreement without the prior consent of livepro.

10.2 There are no third-party beneficiaries to this Agreement.

10.3 The relationship arising from this Agreement does not constitute or create any joint venture, partnership, employment relationship, or franchise between the parties. The parties are acting as independent contractors in making and forming this Agreement.

10.4 This Agreement contains the entire understanding between the parties concerning the subject matter of this Agreement and supersedes all prior communications.

10.5 Any waiver of any provision or breach of this Agreement must be in a writing signed by the party granting the waiver and shall not constitute a waiver of any subsequent or additional breach. The failure of either party to enforce any provisions under this Agreement will not waive the right of such party thereafter to enforce any such provisions.

10.6 All notices and consents relating to this Agreement must be in writing and sent by email.

10.7 If any term or provision of this Agreement is held by a court to be illegal, invalid or unenforceable under the applicable law, that term or provision will be severed from this Agreement and the remaining terms and conditions will be unaffected.

10.8 This Agreement is governed by, and construed in accordance with law of New York, United States and the parties submit to the non-exclusive jurisdiction of the courts of that State.

10.9 Each party agrees that before commencing any legal proceedings, it will provide the other party with written notice of the dispute or claim and attempt to resolve such dispute or claim informally for at least 30 days after providing such notice.

10.10 In connection with this Agreement, each party will comply with all applicable import, re-import, sanctions, anti-boycott, export, and re-export control laws and regulations, including all such laws and regulations that apply to a US company, such as the Export Administration Regulations, the International Traffic in Arms Regulations, and economic sanctions programs implemented by the Office of Foreign Assets Control. The Client is solely responsible for compliance related to the manner in which the Client uses the Services, including the transfer and processing of the Client Content. The Client represents and warrants that the Client is not subject to sanctions or otherwise designated on any list of prohibited or restricted parties, including but not limited to the lists maintained by the US Government (e.g., the Specially Designated Nationals List and Foreign Sanctions Evaders List of the U.S. Department of Treasury, and the Entity List of the U.S. Department of Commerce) or other applicable government authority.

10.11 All provisions of this Agreement that are intended to survive or must survive in order to give effect to its meaning (including, but not limited to, Sections 6, 7, and 10) will survive the termination or expiration of this Agreement.

10.12 livepro has the sole discretion to amend this Agreement at any time. If this occurs, livepro will provide the Client with notice via any means livepro considers reasonable, including via email, posting on livepro’s website, or updates to the Services. The Client’s continued use of the Services after an amendment constitutes its acceptance to the changes and the Agreement as amended.

11. Definitions

(a) “Client Content” means all information and materials stored in livepro by the Client in connection with this Agreement including user passwords, and sign-in information,

(b) “Security Incident” means any suspected or actual unauthorized access, acquisition, disclosure, use, theft, loss, destruction, alteration or other compromise of: (i) the Client Content in livepro’s possession or control; (ii) the Client’s livepro account; or (iii) the Client’s access credentials to the Services.

(c) “Services” means the livepro software, training and any other services or software livepro provides to the Client.

1. Formation

This agreement is made between livepro Australia Pty Ltd ABN 92 095 140 775 (livepro) and any entity that uses the Services (Client). The Client is bound by these terms of service on execution of these terms of service; or when the Client uses livepro it agrees to be bound by these terms of service.

2. Term

This agreement starts when Client begins using livepro or two months after the date the Contract is signed (whichever is the earliest) and will continue until the Client ceases using livepro, unless terminated in accordance with this agreement.

3. Services

3.1 livepro will provide the Services in accordance with this agreement.

3.2 livepro will provide the Client with additional training in the use of the Services from time to time as required or requested by the Client, and the Client may be required to pay additional fees for such training.

3.3 The Client will have access to livepro’s technical support and may use call-in technical support during normal business hours. Service requests must be communicated by telephone or email and must provide sufficient information to enable livepro to replicate and diagnose the reported problem. If necessary and subject to normal security procedures, livepro support staff may access the Client’s data on the Service to diagnose and deal with reported errors.

4. Client responsibilities

4.1 The Client is responsible for:

(a) understanding and complying with its contractual obligations to livepro;

(b) notifying livepro of changes made to technical or administrative contact information;

(c) maintaining its own system(s) of record;

(d) ensuring the supervision, management, and control of the use of the Services by its personnel;

(e) developing its own disaster recovery and business continuity plans that address the inability to access or utilize the Services.

(f) providing livepro with a list of approvers for security and system configuration changes for data transmission; and

(g) immediately notifying livepro of any actual or suspected information security breaches, including compromised user accounts, including those used for integrations and secure file transfers.

5. Fees and Payment

5.1 The Client must pay the $fees plus GST paid annually in advance for the Services. Client must pay invoices within thirty (30) days of the date of issue of the invoice.

6. Intellectual Property Rights

6.1 The Client owns all rights (including intellectual property rights), title and interest to the Client Content. The Client grants livepro a non-exclusive licence to use the Client Content for the purpose of performing livepro’s obligations under this agreement.

6.2 The Client consents to livepro using the Client’s company name and reproducing the Client’s logos for livepro’s promotional and publicity purposes.

6.3 livepro owns all rights (including intellectual property rights), title and interest to its software and training materials. livepro grants the Client a non-exclusive and non-transferable licence to use its software and training materials for the term of this agreement.

7. Liability and Indemnity

7.1 The Services are provided as is and the Client agrees that its use of the Services is at its own risk. Unless mentioned in this agreement, livepro makes no representations or warranties in relation to the Services or any products provided by third parties.

7.2 livepro excludes liability for:

(a) any costs, expenses, claims or liability suffered or incurred by the Client as a result of livepro complying with the Client’s directions;

(b) any indirect liability, that is, any liability not arising naturally in the ordinary course of things from the relevant event or circumstance giving rise to the liability;

(c) any loss of profit, loss of business opportunities, loss of software or loss of data, in each case whether such loss is direct or indirect, arising in connection with this agreement; and

(d) any claim or demand brought by third parties.

7.3 To the extent permitted by law, livepro’s aggregate liability arising in connection with this agreement will not exceed the fees paid by the Client under this agreement in the 90 days preceding the date of the claim.

7.4 livepro will not be liable for any delay or non-performance of livepro’s obligations under this agreement if it is caused by a circumstance beyond livepro’s reasonable control.

8. Suspension and Termination

8.1 Without limiting any remedies available to livepro under this agreement or at law, livepro may suspend the Services and/or terminate this agreement with notice to the Client if:

(a) the Client fails to remedy a breach within 7 days of a notice from livepro requesting the Client to do so;

(b) the fees are outstanding for more than 7 days past the due date; or

(c) the Client becomes insolvent.

8.2 Without limiting any remedies available to the Client under this agreement or at law, the Client may terminate this agreement with notice to livepro if:

(a) livepro fails to remedy a breach within 7 days of a notice from the Client requesting livepro to do so; or

(b) livepro becomes insolvent.

8.3 Either party may terminate this agreement at any time by giving the other party at least 90 days’ prior written notice. In this instance, any prepaid fees applicable to the unused portion of any Services will be refunded to the Client.

8.4 Upon the termination of this agreement for any reason, the Client must pay all outstanding fees.

9. General Terms

9.1 livepro may sub-contract the performance of any part of the Services to any third party or assign or novate this agreement or any of livepro’s rights or obligations under this agreement.

9.2 This agreement contains the entire understanding between the parties concerning the subject matter of the agreement and supersedes all prior communications.

9.3 The failure of either party to enforce any provisions under this agreement will not waive the right of such party thereafter to enforce any such provisions.

9.4 All notices and consents relating to this agreement must be in writing and sent by email.

9.5 If any term or provision of this agreement is held by a court to be illegal, invalid or unenforceable under the applicable law, that term or provision will be severed from this agreement and the remaining terms and conditions will be unaffected.

9.6 This agreement is governed by, and construed in accordance with the laws of New South Wales. The parties agree to submit to the non-exclusive jurisdiction of the courts of New South Wales.

10. Force Majeure

10.1 livepro is not liable for any delay or failure to perform its obligations if such failure is due to Force Majeure.

10.2 If a failure or delay is caused or anticipated by Force Majeure, livepro’s obligations will be suspended. If a delay or failure by livepro to deliver its obligations due to Force Majeure exceeds 60 days, livepro may immediately terminate.

11. Confidentiality

Nothing in this Contract prohibits disclosure of information which:

(a) is in the public domain otherwise than a result of a breach of this clause;

(b) is received from a third party provided that it was not acquired directly or indirectly by that third party as a result of a breach of this clause;

(c) is required to be disclosed by law or any government or governmental body, authority, agency or stock exchange having authority over a party;

(d) is disclosed by us as part of a bona fide potential sale of our assets, shares in us or shares of any company of which we are a wholly owned subsidiary; or

(e) is for the purposes of providing legal advice.

11.3 Each party (Receiving Party) who receives Confidential Information of the other party (Disclosing Party) must return to the Disclosing Party that Confidential Information and all copies made of that Confidential Information:

(a) when notified to do so; and

(b) on the termination or expiration of this Contract.

12. Definitions

12.1 In this agreement:

(a) Associates mean the officers, directors, employees, subcontractors, consultants or agents of a party.

(b) Client Content means all information and materials stored in livepro by the Client in connection with this agreement.

(c) Force Majeure means any delays or failure to perform obligations under the agreement which results from circumstances beyond the reasonable control of that party.

(d) Pre-Existing Materials mean any of livepro’s materials existing at the date of this agreement, including all trademarks, designs, design specifications, software, hardware or other documentation and materials used in livepro’s business or operations.

(e) Services means the livepro software, training and any other services or software livepro provides to the Client.