Website Terms of Use

Please read these Terms of Use carefully because they contain important information about your legal rights and obligations. By accessing or using the TALY website you agree to comply with and be bound by these Terms of Use. These terms were last updated in August 2025.

BACKGROUND

A. TALY provides the TALY Software on a subscription basis to its customers.

B. The Customer wishes to procure the TALY Software for purposes relating to its business.

C. TALY has agreed to provide the Customer, and the Customer has agreed to receive from TALY, a subscription to the TALY Software in accordance with the terms and conditions of this agreement.

1. DEFINITIONS AND INTERPRETATION

1.1 Definitions

The meanings of the terms used in this agreement are set out below:

Authorised User means employees and other persons engaged by the Customer who use the TALY Software.

Business Day means a day on which banks are open for business in the city of operation excluding a Saturday, Sunday or public holiday in that city.

Claim means any claim, action, proceeding or investigation of any nature or kind and includes the allegation of a claim.

Commencement Date means the date that the TALY Software is delivered as specified in the Subscription Terms.

Confidential Information means, in relation to a party, information that:

(a) is by its nature confidential;

(b) the party receiving the information knows or ought to know is confidential; or

(i) information which has any actual or potential commercial value in respect of the business of a party or is comprised in or relating to any Intellectual Property Rights of a party;

(ii) information relating to the financial position of a party, including information relating to the assets or liabilities of the party and any other matter that does or may affect the financial position or reputation of the party;

(iii) information relating to the internal management and structure, policies and strategies of a party; and

(iv) Personal Information or any other information relating to a party's employees, subcontractors, agents, clients or suppliers.

Consequential Loss means any Loss suffered or incurred by TALY or the Customer as a result of a breach of this agreement by the other party which does not arise naturally (that is, according to the usual course of things), from the breach.

Copyright Law means Copyright Act 1968 (Cth).

Corporations Law means the Corporations Act 2001 (Cth).

Customer’s Administrator Account means the login to the TALY Software which is allocated as being the “Administrator Account” where the Subscription Terms are listed which has the ability to administer the Customer’s use of the TALY Software including by adding Authorised Users.

Customer Data means data relating to a Customer or its Authorised Users or End Users’ use of the TALY Software including any data which may from time-to-time be collectable through the TALY Software or the use thereof by the Customer or its Authorised Users or End Users.

Customer Material means any Material provided by the Customer to TALY, which relate to the Customer, the Customer’s Authorised Users, the End Users and the End User Material.

Documentation means operating manuals, training materials and associated documentation, which is to be made available in hard copy or online to the Customer by TALY under this agreement.

End User means any person which the Customer (through its Authorised Users) invites to use the TALY Software for the purposes of conducting personality insight testing who is not otherwise an Authorised User.

End User Material means any Material provided by the Customer (including its Authorised Users) or the End User which relates to the Authorised User or End User personally and may include information which is Personal Information which may include for example, user contact details, user login information and user specific usage data.

Extension Term means the further term with a duration equal to that specified in the Subscription Terms.

Fees means the fees or charges payable by the Customer for the TALY Software in accordance with the Contact Documents.

Force Majeure Event means events, circumstances or causes beyond a party’s reasonable control including (but not limited to):

(a) strikes, lock-outs or other industrial action;

(b) civil commotion, riot, invasion, cyber-attack, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;

(c) fire, explosion, storm, flood, earthquake, subsidence, epidemic, pandemic, health emergencies, disease, or other natural disaster;

(d) impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;

(e) interruption or failure of utility services (including the inability to use public or private telecommunications networks);

(f) interruption of networks or third-party services (including Microsoft Azure, 4G, 5G or web services); and

(g) the act, decrees, legislation, regulations or restrictions of any Government Agency,

however, does not include a lack of funds.

GST means the tax payable on taxable supplies under the GST Law if applicable in the country of operation.

GST Law means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any related Act imposing such tax, and includes any subordinate legislation in respect of those Acts.

Insolvency Event means, in the context of a party:

(a) a receiver, receiver and manager, official manager, trustee, administrator, other controller (as defined in the Corporations Law) or similar official is appointed, or steps are taken for such appointment, over any of the equipment or undertaking of the person;

(b) the party is or becomes unable to pay its debts when they are due or is or becomes unable to pay its debts within the meaning of the Corporations Law or is presumed to be insolvent under the Corporations Law;

(d) an application or order is made for the liquidation of the party or a resolution is passed or any steps are taken to liquidate or pass a resolution for the liquidation of the party otherwise than for the purpose of an amalgamation or reconstruction.

Integration means add-ons, features, third-party applications and premium features not included in the standard offering of the TALY Software which TALY may offer to the Customer from time-to-time.

Intellectual Property Rights means any industrial and intellectual property rights throughout the world and for the duration of the rights, including:

(a) any patents, copyright including future copyright, registered or unregistered trademarks or service marks, trade names, brand names, registered or unregistered designs, commercial names, circuit layouts, database rights;

(b) any inventions, discoveries, processes, methods, trade secrets, know how, computer software, confidential information and scientific, technical and product information;

(d) any other similar or analogous rights and any intellectual or industrial rights whether now existing or which come into existence in the future.

Loss means any loss, damage, claim, action, liability, cost, charge, expense, outgoing or payment.

Material means any material, information or knowledge, regardless of form, including without limitation any data, text, chart, graphics, reports, calculations, statistics, software, source code, object code, designs, templates, formats, tools, methodologies, strategies, processes, procedures or routines.

Payment Provider means any other such payment provider specified by TALY from time to time.

Payment Provider’s Service Agreement means the Payment’s Provider’s service agreement with respect to direct debits, provided to the Customer by TALY.

Personal Information has the meaning given to that term in the Privacy Act 1988 (Cth).

Personnel means, in relation to a party, that party’s employees, agents, consultants and subcontractors.

PPSA means the Personal Property Securities Act 2009 (Cth).

Privacy Laws means:

(a) the Privacy Act 1988 (Cth); and

(b) any other legislation relating to the collection, use, disclosure, storage or granting of access rights to Personal Information.

Related Bodies Corporate has the meaning given to that term in the Corporations Law.

Seat means an allocated login held by the Customer for Authorised Users of the Customer.

Sensitive Information has the meaning given to that term in the Privacy Act 1988 (Cth).

Subscription Terms means the commercial terms of the Customer’s subscription to the TALY Software listed in the Customer’s Administrator Account and contained in Error! Reference source not found..

Tax Invoice has the same meaning as in the GST Law.

Term means the term specified in the Subscription Terms, commencing from the Commencement Date.

TALY Material means any Material:

(d) which are created, developed or acquired by TALY on or after the Commencement Date,

and which is incorporated in, or necessarily used in providing, the TALY Software to the Customer, or otherwise made available to the Customer, under this agreement including any of TALY’s software, methodologies, processes, tools, tool-kits, routines, designs, source code, templates, formats, strategies, content management tools or procedures and any customisations or modifications to the TALY Software.

TALY Software means platform operated by TALY which can be accessed through the website located at http://asktaly.com/.

1.2 Interpretation

In this agreement:

(a) headings and bold type are for convenience only and do not affect interpretation;

(b) the singular includes the plural and the plural includes the singular.

(d) a reference to anything (including, but not limited to, any right) includes a part of that thing but nothing in this clause 1.2(d) implies that performance of part of an obligation constitutes performance of the obligation;

(e) a reference to a clause, party, schedule, attachment or exhibit is a reference to a clause of, and a party, schedule, attachment or exhibit to, this agreement;

(f) a reference to any legislation includes all delegated legislation made under it and amendments, consolidations, replacements or re-enactments of any of them;

(g) anything specified after the word “including” or a similar expression does not limit what else is included;

(h) an expression importing a natural person includes any company, partnership, joint venture, association, corporation or other body corporate and any government agency;

(i) a reference to a person includes that person’s successors and legal personal representatives; and

(j) no provision of this agreement will be construed adversely to a party because that party was responsible for the preparation of this agreement or that provision.

2. AGREEMENT

2.1 TALY offers to provide the Customer with access to the TALY Software on a recurring subscription basis for the duration of the Term in consideration for the payment of the Fee by the Customer on the terms and conditions contained in this Agreement.

2.2 By using the TALY Software, the Customer accepts TALY’s offer.

3. TERM

3.1 This agreement commences on the Commencement Date and continues in full force and effect for the initial Term unless terminated earlier under clause 14 or extended under clause 3.2.

3.2 The Term will automatically renew for an Extension Term unless the Customer provides TALY with written notice (Non-Renewal Notice) of not less than the period specified in the Subscription Terms.

3.3 If the Term is automatically renewed in accordance with clause 3.2, the Customer acknowledges and expressly authorises TALY to charge the Fees for the Extension Term.

4. Provision of TALY Software

4.1 TALY Software

(a) TALY delivers the TALY Software electronically during the Term through access to the TALY Software using an internet browser.

(b) The TALY Software will be deemed ‘delivered’ on the date that the Customer’s first Authorised User is provided access enabling use of the TALY Software.

4.2 Further integrations

(a) TALY may from time-to-time provide for certain additional functionality of the TALY Software through an Integration.

(b) To the extent that TALY offers an Integration, the Customer may elect to use the Integration and the use of those Integrations:

(i) may be subject to terms and conditions of a third-party provider;

(ii) may attract additional fees and charges to be used in addition to the Fees;

(iii) may not be available in all regions, to all Authorised Users or to all End Users;

(iv) may be discontinued at any time without notice to the Customer.

(c) The Customer acknowledges that TALY may not be the data controller in respect of any Integration and the Integration may result in Customer Materials or End User Materials being transferred or transmitted to a third-party or a related entity of TALY.

5. Licence and licence conditions

5.1 Licence

(a) Subject to this clause 5 and receipt of payment of the Fees, TALY grants the Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable licence to use the TALY Software and the Documentation for the Customer’s business purposes (Permitted Purpose) for the Term or Extension Term (as applicable).

(b) The Customer acknowledges that it has no right, title or interest in the TALY Software except as set out in clause 5.1(a).

5.2 Seats and Authorised Users

(a) The Customer subscribes for that number of Seats specified in the Subscription Terms for the duration of the Term.

(b) At any time during the Term, the Customer may increase the number of Seats held by it for the duration of the balance of the Term and any Extension Term through the Customer’s Administrator Account.

(c) The Customer may allocate any of the Seats it holds to any Authorised User, however no more than one person may use a Seat during a Term.

(d) If TALY reasonably believes that the Customer is permitting more than one person to use a Seat, TALY may (without prejudice to any other rights):

(i) immediately suspend the Customer’s access to the TALY Software;

(ii) lock out the Authorised User to prevent unauthorised access to the TALY Software; and/or

(iii) notify the Customer that it considers the Customer is non-compliant with this Agreement and charge the Customer those Fees which would have been payable by the Customer had the Customer held a licence to a sufficient number of Seats.

(e) The Customer may only permit Authorised Users to access and use the TALY Software provided that the Customer ensures that its Authorised Users use the TALY Software in accordance with this Agreement.

5.3 Authorised Users and End Users to agree to TALY’s terms and Privacy Policy

(a) The Customer’s Authorised Users and End Users must agree to any terms of use applicable to Authorised Users and End Users and must agree to the terms of TALY’s Privacy Policy.

(b) The Customer acknowledges that an Authorised User and an End User may be unable to access or use the TALY Software if they do not agree to the terms of use and/or Privacy Policy.

6. USE OF THE TALY SOFTWARE

6.1 Restrictions on use

Except as otherwise permitted under this agreement, the Customer must, and must ensure that its Authorised Users do not directly or indirectly:

(a) copy, reproduce, lease, sub-licence, rent, licence, sell or otherwise make available or transfer all or any part of the TALY Software to any other person;

(b) make available to any third party any analysis of the results of operation of the TALY Software, including benchmarking results, without the prior written consent of TALY;

(c) provide services relating to the TALY Software to third parties including business process outsourcing services, service bureau services or training services but excluding End Users;

(d) alter, customise, modify or create derivative works of the TALY Software;

(e) remove, obliterate or alter any proprietary notice on the TALY Software;

(f) infringe any third party’s rights, including as to confidentiality, privacy, Intellectual Property Rights, other proprietary rights or rights of publicity;

(g) use the TALY Software to access any data other than the Customer Material;

(h) violate or attempt to violate the security of the TALY Software;

(i) disrupt or interfere with the TALY Software, or any services, system resources, accounts, servers or networks connected to or accessible through the TALY Software;

(j) disrupt or interfere with any other user’s enjoyment of the TALY Software;

(k) take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the TALY Software;

(l) use any device, software or routine to interfere or attempt to interfere with the proper working of the TALY Software or any transaction or process being conducted on or through it;

(m) use any robot, spider, other automatic device or manual process to monitor, copy or extract any web pages on the TALY Software, or any of the content contained within, without TALY’s prior written permission; and

(n) use the TALY Software to breach any laws, including any Privacy Laws, which are applicable to the Customer, the Authorised Users or the End Users.

(o) reverse engineer the TALY Software, including, except as expressly permitted by part 3 division 4A of the Copyright Law, the Customer will not attempt to reverse assemble, reverse compile or otherwise reverse engineer the TALY Software or any part of the TALY Software;

(p) modify the TALY Software, including:

(i) modify the whole or any part of the TALY Software or combine or incorporate the whole or any part of the TALY Software in any other program or system without the prior consent in writing of TALY.

(ii) If the TALY Software is modified in accordance with clause 6.1(p)(i):

A. the modifications must, unless TALY directs otherwise, be made in accordance with a written proposal submitted by the Customer to TALY;

B. the Customer will fully indemnify and hold harmless TALY against any liability incurred if the modifications infringe the Intellectual Property Rights of a third person;

C. the TALY Software as modified remains the property of TALY; and

D. this agreement will continue to apply to the TALY Software as modified.

(iii) This clause 6.1(p) is subject to any right of modification arising pursuant to part 3 division 4A of the Copyright Law.

6.2 Customer Responsibilities

Other than as set out in this agreement, the Customer:

(a) is solely responsible for providing all hardware, telecommunications equipment, internet connectivity, software (including browsers) and appropriate internet bandwidth that may be required for proper use of the TALY Software;

(b) is solely responsible for the actions of its Authorised Users with the use of the TALY Software;

(c) on an ongoing basis throughout the Term, co-operate with TALY and its representatives in relation to TALY’s provision of the TALY Software to the Customer;

(d) is responsible for protecting the TALY Software at all times from unauthorised access, use or damage;

(e) must keep its Authorised User passwords to the TALY Software confidential, and must not transfer or disclose such Authorised User passwords to any person, except as permitted by this agreement;

(f) must notify TALY immediately if it becomes aware that the confidentiality of its Authorised User passwords has or may have been compromised in any way (including by disclosure to any third party);

(g) is solely responsible for inputting the Customer Material and the End User Material, the accuracy of the Customer Material and End User Material, any consents required from an End User relating to the collection and disclosure of the End User Material to TALY and the content of the Customer Material input processed through the TALY Software;

(h) must ensure that the Customer Material is provided in a format compatible with the TALY Software;

(i) must ensure that the Customer Material does not contain any harmful or deleterious software viruses or other programming routines or codes designed to interrupt, destroy or limit the functionality of the TALY Software.

6.3 Customer acknowledgment

The Customer acknowledges that TALY may, subject to its obligations under clause 9 and in its discretion:

(a) access Customer Material as required by law;

(b) access the Customer Material for purposes relating to the maintenance of the TALY Software;

(c) use, communicate, display, store and translate the Customer Material as required to provide the TALY Software to the Customer, the Authorised Users and the End Users; and

(d) use any information recorded in the TALY Software (excluding any Personal Information) for evaluation purposes and to improve the TALY Software.

6.4 End User Consents

The Customer represents, warrants and acknowledges that:

(a) it has obtained, and will continue to obtain, all necessary:

(i) and valid consents, authorisations, and permissions from each End User who accesses or uses the TALY Software, sufficient to allow the collection, use, disclosure, storage and handling of their Personal Information (including any Sensitive Information) by TALY as contemplated under this Agreement and in accordance with Privacy Laws and the Australian Privacy Principles;

(ii) consents from all End Users to any terms of use, terms of service, or applicable privacy policies which may be in place from time-to-time and updated in TALY’s sole discretion,

and shall provide TALY with evidence of all consents upon reasonable notice from TALY.

(b) it has provided, or will provide, all necessary notices to End Users regarding the nature of the Personal Information collected, the purposes for which it is collected, how it will be used and disclosed, and the consequences if such information is not provided;

(c) it will not cause or permit any Personal Information (including Sensitive Information) to be disclosed or made available to the TALY or input into the TALY Software unless the Customer has first obtained all necessary consents and provided all required notices to the relevant individuals, and has complied with all other legal requirements applicable to such disclosure;

(d) to the extent that any Personal Information (including Sensitive Information) is disclosed to TALY or input into the TALY Software, the Customer has ensured and will ensure that such disclosure does not breach any applicable law or third-party rights.

7. FEES

7.1 Payment of Fees and currency

(a) In consideration for TALY providing the TALY Software, the Customer must pay TALY the Fees in accordance with the clause 7 and this agreement.

(b) Unless otherwise specified, all Fees must be paid in Australian dollars.

7.2 Calculation of Fees

(a) Subject to clause 7.2(b), the Fees payable by the Customer will be as set out in the Subscription Terms.

(b) TALY may give notice to the Customer of a change in the Fees or a change in the manner of calculating the Fees in accordance with clause (a) by giving the Customer written notice of the duration specified in the Subscription Terms.

(c) If the Customer continues to use the TALY Software after receiving notice under clause 7.2(b) it agrees to pay updated Fees for the duration of the Term or Extension Term.

7.3 Invoices and payment

(a) TALY will invoice the Customer for the Fees monthly in advance during the Term and each Extension Term, unless otherwise specified in the Subscription Terms.

(b) The Customer must make payment of the Fees within 14 days of receipt of a properly rendered Tax Invoice without set-off or counter-claim in the manner agreed between TALY and the Customer.

(c) TALY does not access or store payment method information and merely uses payment gateways or merchant facilities for the processing of payments. In such instances, the Customer is bound by the terms of service of the payment gateway or merchant facility.

(d) All paid Fees are non-refundable unless otherwise determined by law.

7.4 Direct Debit

(a) If requested by TALY, the Customer agrees to provide a signed direct debit authorisation (Direct Debit Authorisations) to TALY, authorising the direct debit of Fees payable in connection with this agreement from the Customer’s nominated bank account or credit card.

(b) Where payment is required by direct debit, the Customer acknowledges and agrees that it will be bound by the terms and conditions described in the Direct Debit Authorisation and the Payment Provider’s Service Agreement.

7.5 Late payment

(a) If payment is not made in accordance with clause 7.3, the Customer will be liable to pay TALY interest on the outstanding balance from the due date of invoice until the date of payment at the rate of 1.5% per calendar month or part thereof.

(b) TALY will notify the Customer if the supplied credit card is declined or fails for any reason.

(c) If the Customer fails to remedy the payment failure within 7 days of this notice TALY may disable access to the TALY Software.

7.6 Goods and Services Tax (if applicable)

(a) Unless otherwise expressly stated, any fees and other payments required to be made under this agreement are deemed to be exclusive of GST.

(b) In the event that a supply under this agreement is a taxable supply within the meaning of the GST Law:

(i) TALY may recover from the recipient of the supply an amount equal to the GST payable on the supply (GST Amount); and

(ii) the recipient must pay the GST Amount to TALY on the date the consideration for the supply is due for payment, or in exchange for a valid Tax Invoice.

8. INTELLECTUAL PROPERTY RIGHTS

8.1 The Customer acknowledges that TALY and its licensors owns all Intellectual Property Rights in and to the TALY Material.

8.2 Subject to the payment of all outstanding Fees by the Customer, TALY grants to the Customer a non-exclusive, personal, non-transferable, non-sublicensable, revocable and royalty free licence to use TALY Material solely for the Term and each Extension Term to the limited extent necessary for the Customer to enjoy the benefit of the TALY Software for the Customer’s internal business purposes.

8.3 TALY acknowledges that, as between the parties, TALY has no Intellectual Property Rights in and to the Customer Material other than as set out in clauses 8.4 and 8.5.

8.4 The Customer hereby grants TALY a sub-licensable, revocable, royalty-free, worldwide, non-transferable, non-exclusive licence for the Term and each Extension Term to use, communicate, display, copy, reproduce and store the Customer Materials for the purposes of providing the TALY Software.

8.5 As and between the parties, any Intellectual Property Rights in the Customer Data developed or created in the provision of the TALY Software vests immediately upon creation in TALY and TALY may use, communicate, display, copy, reproduce, store, distribute including, publish, export, sell, adapt, edit and translate the Customer Data as non-identifiable data in aggregated and blinded formats where the Customer Data provides no identifying, referencing or implication of an association with the Customer, for benchmarking, research, marketing, analysis, analysis by third parties, surveys, reports and studies and to measure any metrics associated with the Customer and the Customer’s use of the TALY Software either independently or against other customers.

8.6 The Customer represents and warrants that the use of the Customer Material by TALY in accordance with this agreement will not infringe the rights, including Intellectual Property Rights, of any person or give rise to any liability to make royalty or other payments to a third party.

8.7 The Customer represents and warrants that it has all authorisations from Authorised Users and End Users and any other third party it requires to grant the licence granted to TALY under clause 8.4 and 8.5.

9. CONFIDENTIALITY

9.1 Confidentiality

(a) Each party agrees to keep confidential, and not to use or disclose, other than as permitted by this agreement, any Confidential Information of the other party.

(b) The obligation of confidence in clause (a) extends to Confidential Information provided to or obtained by a party before entering into this agreement.

9.2 Exclusions

The obligation of confidence in clause 9.1 does not apply to Confidential Information that is:

(a) required to be disclosed by applicable law or the rules of any stock exchange upon which the recipient’s securities are listed, provided that the recipient:

(i) discloses the minimum amount of Confidential Information required to satisfy the law or rules; and

(ii) before disclosing any information, the recipient provides a reasonable amount of notice to the discloser and exhausts all reasonable steps (whether required by the discloser or not) to maintain the Confidential Information in confidence;

(iii) in the public domain otherwise than as a result of a breach of this agreement;

(iv) independently developed by the recipient; or

(v) already known by the recipient independently of its involvement in this agreement or interaction with the other party and free of any obligation of confidence.

9.3 Permitted disclosures

(a) Each party may disclose Confidential Information of the other party only on a ‘need-to-know’ and confidential basis:

(i) with the prior written consent of the other party;

(ii) to its Personnel; or

(iii) to its Related Bodies Corporate,

for the exercise of rights or the performance of obligations under this agreement.

(b) Each party who discloses Confidential Information of the other party pursuant to clause 9.3(a) must ensure that the information is kept confidential by the recipients.

9.4 Remedies for breach

(a) Each party acknowledges that the value of the other party’s Confidential Information is such that an award of damages or an account of profits may not adequately compensate if this clause 9 is breached.

(b) Each party acknowledges that, without in any way compromising its right to seek damages or any other form of relief in the event of a breach of this clause 9, a party may seek and obtain an ex-parte interlocutory or final injunction to prohibit or restrain the other party or its Personnel from any breach or threatened breach of this clause 9.

10. PRIVACY

The Customer must ensure that in respect of any Personal Information it makes available to TALY in connection with the TALY Software (including through the Customer Material and End User Material), the relevant individual has:

(a) received all notifications on behalf of TALY; and

(b) provided all relevant consents,

required under applicable Privacy Laws for TALY to collect, use and disclose the Personal Information for the purpose of providing the TALY Software.

11. DISCLAIMER

The Customer acknowledges that;

(a) TALY does not warrant that the use of the TALY Software will result in any specific result;

(b) the Customer has entered into this agreement for the use of the TALY Software as a result of its own inquiries and investigations and TALY has made no representations about the suitability of the TALY Software;

(c) TALY is not responsible for any outcome that is inaccurate, incomplete or non-reliable due to inaccurate, incomplete or non-reliable Customer Materials;

(d) use of the TALY Software is intended to provide supplementary material to support and inform the decision making process and is not a substitute for the judgement, expertise or responsibility of the Customer decision maker;

(e) the TALY Software may contain some minor bugs;

(f) anything in or derived from TALY Software may contain some minor bugs;

(g) access to the TALY Software may not be uninterrupted; and

(h) Customer data may be corrupted, degraded, lost or erased in the course of:

(i) TALY’s provision of the TALY Software; or

(ii) the Customer’s, any Authorised User’s or any End User’s, use of the TALY Software,

and that it is the Customer’s responsibility to take appropriate measures to minimise any Loss that might flow from any of those events occurring.

12. INDEMNITY

The Customer indemnifies TALY against any Loss suffered or incurred in connection with any:

(a) Loss suffered by TALY or any other third party during any attendance at the Customer’s premises;

(b) third party Claim against TALY, its Personnel or sub-contractors arising directly or indirectly from use of any Customer Material in accordance with this agreement including any failure by the Customer to obtain consents required under clause 6.4;

(d) the Customer’s breach or negligent performance of this agreement;

(e) violation by the Customer of any applicable laws;

(f) enforcement of this agreement, including any debt collection or legal costs incurred by TALY on an indemnity basis;

(g) breach of the Customer’s obligations in clauses 9 and 10.

13. LIABILITY

13.1 Limiting liability

Subject to clause 13.2 and to the extent permitted by law, TALY’s liability for any Loss arising in any way in connection with the TALY Software or this agreement (whether under law of contract or tort (including negligence), statute, in equity, under a consumer guarantee or otherwise) is limited to the maximum aggregate liability of TALY to the Customer must not exceed the total fees paid by Customer in the three (3) months preceding the date of the event giving rise to the liability.

13.2 Exclusion of consequential loss

Neither TALY nor its Personnel are liable to the Customer for any:

(a) Consequential Loss or special, exemplary or punitive Loss or damage suffered or incurred by the Customer in connection with this agreement; or

(b) loss of profit, loss of revenue, loss of opportunity, loss, degradation or damage of Customer Materials, third party Claims, loss of goodwill, loss of business, loss of anticipated savings, loss of reputation or similar losses, liabilities or expenses, however caused.

13.3 Exceptions to limitation and exclusion

(a) The limitations and exclusions in clauses 13.1 and 13.2 do not apply in relation to Loss arising out of any:

(i) breach by either party of clause 9;

(ii) repudiation or wrongful abandonment of this agreement by TALY; or

(iii) fraudulent or criminal conduct of TALY.

(b) To the extent any Loss is caused, or contributed to, by the Customer or any of the Customer’s Authorised Users and End Users, TALY’s liability will be reduced to the extent of that contribution.

13.4 Non-excludable obligations

(a) To the extent that the Customer acquires goods or services from us as a 'consumer' (as that term is defined in section 3 of the Competition and Consumer Act 2010 (Cth)), the Customer may have certain rights and remedies (including, without limitation, consumer guarantee rights) that cannot be excluded, restricted or modified by agreement.

(b) Nothing in this clause 13 operates to exclude, restrict or modify the application of any implied condition or warranty, provision, the exercise of any right or remedy, or the imposition of any liability, implied or conferred under the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth)) or any other statute, the exclusion, restriction or modification of which would:

(i) contravene that statute; or

(ii) cause any term of these terms to be void.

14. TERMINATION OF AGREEMENT

14.1 Termination by TALY

TALY may terminate this agreement:

(a) by written notice to the Customer if the Customer is more than 30 days late in paying any amount payable to TALY under this agreement other than amounts which are subject to a bona fides dispute between the parties;

(b) if TALY believes that the Customer’s use of the TALY Software is likely to violate a law which is applicable to the Customer or likely to result in harm to the function or security of the TALY Software; or

(c) at any time after the Term for convenience by providing written notice to the Customer of not less than the period specified in the Subscription Terms.

14.2 Termination by the Customer

The Customer may terminate this agreement by providing written notice at least 60 days prior to the expiry of the Term or Extension Term (as applicable).

14.3 Termination by either party

Without limiting clauses 14.1 and 14.2, either party may terminate this agreement by giving written notice to the other party (Defaulting Party), such termination will take effect from the date of the notice if:

(a) the Defaulting Party is subject to an Insolvency Event;

(b) the Defaulting Party commits a breach of this agreement and does not rectify that breach within 60 days (or another period agreed by the parties in writing) of receiving written notice of the breach from the first party; or

14.4 Consequences of termination or expiry of this agreement

Termination or expiry of this agreement does not prejudice any right of action or remedy of either party which accrued prior to termination or expiry.

14.5 Return of Confidential Information

On termination or expiry of this agreement, each party must promptly return any Confidential Information of the other party in its possession, custody or control.

15. ASSIGNMENT

15.1 TALY may at any time on written notice to the Customer assign all or any part of its rights, or novate any of its rights and obligations under this agreement, to any person.

15.2 Rights arising out of or under this agreement may not be subcontracted, assigned or novated by the Customer without the prior written consent of TALY.

16. DISPUTES

16.1 Except for urgent interlocutory relief, if a party (Complaining Party) has a dispute with the other party in relation to this agreement or the TALY Software, the parties must attempt to settle that dispute before resorting to external dispute resolution mechanisms, and for this purpose:

(a) the Complaining Party must provide the other party with a written notice of dispute together with all information, documentation and other materials and assistance reasonably necessary in order to understand the basis of and reasons for the dispute and any claims the Complaining Party may have against the other party; and

(b) the appropriate senior management from both parties with authority to resolve the dispute must meet and make a bona fide attempt to settle any issues arising out of clause 16.1(a).

16.2 If a dispute is not settled by the parties within 10 Business Days of one party sending to the other written notice of the dispute, the parties may pursue other dispute resolution avenues.

17. FORCE MAJEURE

17.1 TALY will not be in breach of this agreement or liable to the Customer for any loss incurred by that other party as a direct result of TALY failing or being prevented, hindered or delayed in the performance of its obligations under this agreement where such prevention, hindrance or delay results from a Force Majeure Event.

17.2 If a Force Majeure Event occurs, TALY must notify the other party in writing as soon as practicable and that notice must state the particulars of the Force majeure Event and the anticipated delay.

17.3 On providing the notice in clause 17.2, TALY will have the time for performance of the affected obligations extended for a period equivalent to the period during which performance has been delayed, hindered or prevented, however, TALY must continue to use all reasonable endeavours to perform those obligations

17.4 The performance of the affected obligations must be resumed as soon as practicable after such Force Majeure Event is removed or has ceased.

18. NOTICES

18.1 Notice requirements

Except where otherwise prescribed by this agreement, any notice or any other communication including any approval, consent, request or demand in connection with this agreement, must be:

(a) in legible writing and in English;

(b) signed by the party giving the notice;

(i) left at the address of the other party (as applicable);

(ii) sent by prepaid ordinary post (airmail if posted to or from a place outside Australia) to the address of the other party or, if the addressee notifies another address, then to that address; or

(iii) sent by email to the email address nominated of the other party or, if the addressee notifies another email address, then to that address.

18.2 When notice takes effect

A notice takes effect from the time it is received unless a later time is specified in that notice.

18.3 Deemed receipt

A notice is taken to be received:

(a) in the case of a posted letter, on the third (seventh, if posted to or from a place outside Australia) Business Day after posting; and

(b) in the case of an email, at the time in which it is received by the addressee’s server unless that time is before 9:00 am or after 5:00 pm on a Business Day whereupon receipt is at 9:00 am on the next Business Day.

19. GENERAL

19.1 Relationship between parties

Nothing in this agreement or the relationship between the parties:

(a) may be deemed to constitute a partnership, joint venture or other legal relationship between the parties other than that of supplier and purchaser or service provider and recipient; or

(b) authorises either party to incur any liability for or on behalf of the other party.

19.2 Publicity

The Customer consents to TALY’s identification of the Customer as a user of the TALY Software, on its website, through a press release issued by TALY and in other promotional materials subject to the Customer’s final approval, which must not be unreasonably withheld, of the content and/or material prior to publication or dissemination by TALY

19.3 Amendment of agreement

Any variation of this agreement must be in writing signed by the parties.

19.4 Severance

(a) If a provision of this agreement is void, unenforceable or illegal in a jurisdiction, it is severed from the remainder of this agreement for the purposes of enforcement in that jurisdiction.

(b) The remainder of this agreement has full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected.

(i) alters the basic nature of this agreement; or

(ii) is contrary to public policy.

19.5 Waivers

(a) A provision of, or a right created under, this agreement may not be waived except in writing executed by the party granting the waiver.

(b) A failure by a party to insist on strict performance of any of the terms of this agreement is not to be deemed a waiver of any subsequent breach or default of the terms of this agreement.

19.6 Rights cumulative

Except as expressly provided to the contrary in this agreement, the rights, powers, discretions, authorities and remedies provided in this agreement are cumulative with, and do not exclude, the rights, powers, discretions, authorities or remedies of a party provided by law independently of this agreement.

19.7 Exercise of rights

Except as expressly provided to the contrary in this agreement, a party may exercise a right, power or remedy at its discretion, and separately or concurrently with another right, power or remedy.

19.8 Governing law and submission to jurisdiction

This agreement is governed by the laws of Victoria, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of Victoria, Australia, and courts of appeal from them, for determining any dispute concerning this agreement or the transactions contemplated by it.

19.9 Entire Agreement

This agreement supersedes all previous agreements in respect of its subject matter and contains all the express terms of the agreement between the parties.

19.10 Counterparts

This agreement may be executed in any number of counterparts.

19.11 Survival

The following clauses in this agreement impose continuing rights and obligations on the relevant parties and survive termination or expiry of this Agreement: 7, 8, 9, 10, 12, 13, 16, 18, 19.8, and 19.11.