SAASYAN PTY LTD

SOFTWARE AS A SERVICE LICENCE AGREEMENT

TERMS AND CONDITIONS

1         About the Software
1.1      Welcome to Saasyan, http://www.saasyan.com.au . Saasyan provides a number of software services, such as Saasyan Assure, Advance and Tempus (the “Software”). A description for each Software service offering can be found at http://www.saasyan.com.au/products (the “Services”).
1.2      The Software is operated by Saasyan Pty Ltd (ACN 613 580 000) (“Saasyan”). Access to and use of the Software, or any of its associated products or Services, is provided by Saasyan. Please read these terms and conditions (the “Terms”) carefully. By using the Software you signify that you have read, understood and agree to be bound by the Terms. If you do not agree with the Terms, you must cease usage of the Software, or any of its products or Services, immediately.
1.3      Saasyan reserves the right to review and change any of the Terms by updating this page at its sole discretion. When Saasyan updates the Terms, it will use reasonable endeavours to provide you with notice of same. Any changes to the Terms take immediate effect from the date of their publication. Before you continue, we recommend you keep a copy of the Terms for your records.

2         Acceptance of the Terms
2.1      You accept the Terms by registering for the Services and/or making any payment as required under the Terms. You may also accept the Terms by clicking to accept or agree to the Terms where and if this option is made available to you in the user interface.

3          Subscription to use the Services
3.1      In order to access the Services, you must register for an account through Saasyan (the “Account”).
3.2      As part of the registration process, or as part of your continued use of the Services, you may be required to provide personal information about yourself (such as identification or contact details), including:
(a)       an email address and/or preferred username;
(b)       a mailing address;
(c)       a telephone number;
(d)       a password;
(e)       whether you intend to use the Services as an individual or as a business entity; and
(f)        a nominated administrator who will operate the Account on your behalf (only where you nominate that you will be using the services as a business entity).
3.3      You warrant that any information you give to Saasyan in the course of completing the registration process will always be accurate, correct and up to date.
3.4      Once you have completed the registration process you will be a registered user of the Software (“Member”) and agree to be bound by the Terms. As a Member you will be granted immediate access to the Services.
3.5      You may not use the Services and may not accept the Terms if:
(a)       you are not of legal age to form a binding contract with Saasyan; or
(b)       you are a person barred from receiving the Services under the laws of Australia or other countries including the country in which you are resident or from which you use the Services.

4         License to use the Software
4.1      Saasyan will grant you a non-exclusive, revocable, non-transferrable licence to use the Software in line with the terms and conditions of these Terms (the “Licence”). For the avoidance of doubt, you acknowledge and agree that the Software is not sold to you and, without the express written consent of Saasyan, you must not nor allow any third party to:
(a)       decompile, disassemble or reverse engineer the Software;
(b)       remove or alter any product identification or proprietary rights notice contained in the Software or its documentation;
(c)       lease, sublicense, resell, or otherwise transfer the Software;
(d)       modify or create derivative works of the Software;
(e)       use the Software to perform services for third parties; or
(f)        otherwise use the Software for any unlawful purposes, and/or in any manner that breaches these Terms.
4.2      You acknowledge and agree that where you, as an individual, represent a business entity (the “Business Entity”):
(a)       you are subscribing to the Services on behalf of and with the authority and consent of the Business Entity; and
(b)       the Licence granted pursuant to this clause 4 shall also include a non-exclusive, non-assignable, non-sublicensable, revocable right granted to the Business Entity, to access the Services, for the purposes expressly described in the Services Description.
For the avoidance of doubt, the arrangement contemplated by this clause 4.2 may include but is not limited to the Licence extending to any students using the Services through the Business Entity.
4.3      You acknowledge and agree that you are responsible for the payment of all costs associated with accessing the Software, including but not limited to internet access costs, web browser and computer and smartphone equipment costs, telecommunications costs, data costs, roaming charges and, if you are a Member, service charges.
4.4      The Licence granted to these Terms will include any upgrades that Saasyan may provide to the Software or the Services. Notwithstanding, Saasyan reserves the sole right to set further terms to any such upgrades where it is accompanied by a separate agreement.

5          Service Commitment
5.1      In this clause,
(a)       “Monthly Uptime Percentage” is calculated by subtracting from 100% the percentage of minutes during the month in which the Services, as applicable, was in unavailable state. Monthly Uptime Percentage measurements exclude downtime resulting directly or indirectly from any Exclusion (defined below).
(b)       “Unavailable” and “Unavailability” mean: The Services is unreachable.
(c)       “Service Credit” is a dollar credit, calculated as set forth below, that Saasyan may credit back to an eligible account.
(d)       Exclusions: Planned outages are excluded from the Service Commitment and do not contribute to the unavailable time. Service outages that result from third party software bugs and defects are excluded from the Service Commitment.
5.2      Saasyan will use commercially reasonable efforts to make the Services available with a Monthly Uptime Percentage of at least 99.9%, in each case during any monthly billing cycle (the “Service Commitment”). In the event the Services does not meet the Service Commitment, you will be eligible to receive a Service Credit.
5.3      Service Credits are calculated as a percentage of the total charges paid by you excluding one-time payments such as upfront payments made for the initial setup and integration (professional services) for the Services.

Monthly Uptime Percentage Service Credit Percentage
Less than 99.9% but equal to or greater than 99.0% 10%
Less than 99.0% 30%

5.4      Saasyan will apply any Service Credits only against the subsequent monthly Subscription Fee otherwise due from you. Service Credits will not entitle you to any refund or other payment from Saasyan. A Service Credit will be applicable and issued only if the credit amount for the applicable monthly billing cycle is greater than one dollar ($1 AUD). Service Credits may not be transferred or applied to any other account. For the avoidance of doubt, Service Credits do not accrue and you are only entitled to the Service Credits to be applied towards the monthly Subscription Fee which would otherwise be due.
5.5      Unless otherwise provided in the Terms, your sole and exclusive remedy for any unavailability, non-performance, or other failure by Saasyan to provide the Services is the receipt of a Service Credit (if eligible) in accordance with this clause.

6          The Member Data
6.1      As a Member, you will own all data that you transmit through or upload into the Services (“Member Data”) and you provide Saasyan with an irrevocable, non-exclusive, royalty-free, worldwide licence to use your de-identified Member Data for benchmarking and data analytic purposes.
6.2      You acknowledge and agree that:
(a)       the Services and/or Member Data may be hosted by Saasyan or third party suppliers on hardware or infrastructure located in Australia; and
(b)       Saasyan may not own or operate the infrastructure upon which the Services and/or the Member Data is hosted.
6.3      Each time a Member uses the Services the Member warrants that:
(a)       they will only upload, input and transfer Member Data into and/or via the Services or disclose Member Data to Saasyan, which the Member is fully entitled and authorised to upload, input, transfer and disclose; and
(b)       the Member Data and Saasyan’s collection, use, storage and/or disclosure of same in the course of performing the Services, will not breach any applicable law or right of any person.
6.4      The Member is solely responsible for the accuracy, legality and quality of all its Member Data and for obtaining any permissions, licenses, rights and authorisations necessary for Saasyan to use, host, transmit, store and disclose the Member Data in connection with the provision of the Services.
6.5      While Saasyan will make reasonable efforts to back up Member Data, you acknowledge and agree that you are solely responsible for backing up and archiving all Member Data and that Saasyan will not be responsible for any loss, corruption or hacking of any Member Data.
6.6      You indemnify Saasyan in respect of any loss and damage Saasyan or any of the third party suppliers they use may incur in respect of any claim that any of the Member Data is lost, unavailable or corrupted or the transmission, storage, disclosure, hacking or access of any Member Data infringes the intellectual property rights or other rights of any person or breaches any law, regulation, code or standard.

7          Your obligations as a Member
7.1      As a Member, in addition to the obligations set out in clause 6 above, you agree to comply with the following:
(a)       you will, at all material times, remain compliant with Saasyan’s policies and guidelines available through the Software, which you acknowledge and agree may be changed from time to time at Saasyan’s sole discretion.
(b)       you will use the Services only for purposes that are permitted by:

(i)        the Terms; and
(ii)       any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions;

(c)       you have the sole responsibility for protecting the confidentiality of your password and/or email address. Use of your password by any other person may result in the immediate cancellation of the Services;
(d)       any use of your registration information by any other person, or third parties, is strictly prohibited. You agree to immediately notify Saasyan of any unauthorised use of your password or email address or any breach of security of which you have become aware;
(e)       access and use of the Software is limited, non-transferable and allows for the sole use of the Software by you for the purposes of Saasyan providing the Services;
(f)        you will not use the Services or the Software in connection with any commercial endeavours except those that are specifically endorsed or approved by the management of Saasyan;
(g)       you will not use the Services or Software for any illegal and/or unauthorised use which includes collecting email addresses of Users by electronic or other means for the purpose of sending unsolicited email or unauthorised framing of or linking to the Software;
(h)       you agree that commercial advertisements, affiliate links, and other forms of solicitation may be removed from the Software without notice and may result in termination of the Services. Appropriate legal action will be taken by Saasyan for any illegal or unauthorised use of the Software; and
(i)         you acknowledge and agree that any automated use of the Software or its Services is prohibited.

8          Payment
8.1      In order to use the Services, you must make payment for a monthly subscription fee (the “Subscription Fee”).
8.2      The Subscription Fee is payable monthly and is due two (2) weeks after the issue date of the invoice. Notwithstanding same, where Saasyan reasonably believes that your account may be fraudulent or may be at risk of non-payment, Saasyan may, at its sole discretion, vary the payment period to a higher frequency, such as on a weekly basis.
8.3      You will make payment for the use of the Services using any one of the payment methods that Saasyan has made available for you. Where the payment methods are made available through a third party, in making the payment through the third party, you warrant that you have read, understood and agree to be bound by the third party’s terms and conditions which should be available on their website.
8.4      All amounts payable under the Terms will be made without set-off or counterclaim and without any deduction or withholding.
8.5      With respect to existing Services, Saasyan reserves the right to vary and change the Subscription Fee. Where Saasyan does so, it will provide you with at least thirty (30) days’ notice in advance. With respect to new Services, the fees for any new Services will take immediate effect from the date Saasyan notifies you of same.

9          Non-Payment
9.1      In the event you elect to pay the Subscription Fee by way of direct debit and/or credit card and there is a chargeback by your credit provider, Saasyan may suspend or terminate the Services immediately. You will be charged the then current Saasyan administration fee (“Administration Fee“) and may also be charged interest in the amount of the Cash Rate Target set by the Reserve Bank of Australia (the “Interest“) on amounts which remain unpaid after thirty (30) days from the date of the tax invoice. Upon payment of the Administration Fee, Interest and Fee in accordance with these Terms, Saasyan will reinstate the Services to you.
9.2      If you do not pay for the Services in accordance with these Terms, Saasyan will issue an overdue payment notice and you will be liable to make the payment immediately. In the event the amounts remain unpaid after thirty (30) days from the date of the tax invoice, Saasyan may proceed to recover the debt from you without further notice. If Saasyan initiates debt recovery action against you, you acknowledge and agree that you will be and remain liable for all debt collection costs which includes any legal costs (on an indemnity basis), collection agency costs and any other expenses or disbursements, including but not limited to, Land and Property Information searches, Australian Securities and Investment Commission searches, process server fees, Expert Reports and court/tribunal fees. You will also be liable to pay the Interest and Administration Fee on the outstanding debt and Saasyan may report the debt to a credit reporting agency.
9.3      Saasyan reserves the right to terminate or suspend your access to the Services in the event that you fail to pay any payment pursuant to the Services or any invoice sent by Saasyan from time to time. Time is of the essence.

10        GST
10.1    For the purposes of this clause, the following expressions shall have the following meanings:
(a)       GST means any tax imposed on the supply of goods or services which is imposed or assessed under GST Act.
(b)       GST Act means A New Tax System (Goods and Services Tax) Act 1999 (as amended) and all related ancillary legislation which provides for a broad based consumption tax on the supply of Goods and Services which becomes operative in respect of the provisions of these Terms.
10.2    If these Terms or any supply under or in respect of these Terms becomes subject to GST, and if the recipient of the consideration is liable to GST in relation to any supply under these Terms, the parties agree that the amount payable for any supply under or in respect of these Terms by any party shall be adjusted by the amount of the GST. The GST shall be payable at the same time and in the same manner as the Subscription Fee.

11        Foreign Currency and Tax
In using the Services and making any payment pursuant to these Terms, you acknowledge that there may be applicable country based currencies and/or taxes that may apply to you and that these may be calculated at the time of payment, such as GST in Australia. You will remain liable to Saasyan for these taxes. For the purposes of calculating the applicable currency, you acknowledge and agree that the currency in the applicable country will be exchanged into Australian Dollars being the country for which Saasyan is domiciled.

12        Refund Policy
Saasyan will only provide you with a refund of any monies paid through the use of the Services in the event they are unable to continue to provide the Services or if the manager of Saasyan makes a decision, at its absolute discretion, that it is reasonable to do so under the circumstances.

13        Copyright and Intellectual Property
13.1    The Software, the Services and all of the related products of Saasyan are subject to copyright. The material on the Software is protected by copyright under the laws of Australia and through international treaties. Unless otherwise indicated, all rights (including copyright) in the Services and compilation of the Software (including but not limited to text, graphics, logos, button icons, video images, audio clips, Software, code, scripts, design elements and interactive features) or the Services are owned or controlled for these purposes, and are reserved by Saasyan or its contributors.
13.2    All trademarks, service marks and trade names are owned, registered and/or licensed by Saasyan, who grants to you a worldwide, non-exclusive, revocable license whilst you are a Member to:
(a)       use the Software pursuant to the Terms;
(b)       copy and store the Software and the material contained in the Software in your device’s cache memory; and
(c)       print pages from the Software for your own personal and non-commercial use.
Saasyan does not grant you any other rights whatsoever in relation to the Software or the Services. All other rights are expressly reserved by Saasyan.
13.3    Saasyan retains all rights, title and interest in and to the Software and all related Services.  Nothing you do on or in relation to the Software will transfer any:
(a)       business name, trading name, domain name, trade mark, industrial design, patent, registered design or copyright, or
(b)       a right to use or exploit a business name, trading name, domain name, trade mark or industrial design, or
(c)       a thing, system or process that is the subject of a patent, registered design or copyright (or an adaptation or modification of such a thing, system or process),
to you.
You may not, without the prior written permission of Saasyan and the permission of any other relevant rights owners: broadcast, republish, up-load to a third party, transmit, post, distribute, show or play in public, adapt or change in any way the Services or third party Services for any purpose, unless otherwise provided by these Terms. This prohibition does not extend to materials on the Software which are freely available for re-use or are in the public domain.

14        Privacy
Saasyan takes your privacy seriously and any information provided through your use of the Software and/or Services are subject to Saasyan’s Privacy Policy, which is available on Saasyan’s website.

15        General Disclaimer
15.1    You acknowledge and agree that Saasyan will use its best endeavours to ensure that the Software and Services are available ninety five percent (99%) of the time each calendar month. Saasyan does not guarantee that the Software, Services or Member Data or access thereto will be uninterrupted or error-free and you release and indemnify Saasyan in respect of any loss and damage in respect of any interruption, error or unavailability of the Software, Services or Member Data.
15.2    Nothing in the Terms limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded.
15.3    Subject to this clause, and to the extent permitted by law:
(a)       all terms, guarantees, warranties, representations or conditions which are not expressly stated in the Terms are excluded; and
(b)       Saasyan we will not be liable for any special, indirect or consequential loss or damage (unless such loss or damage is reasonably foreseeable resulting from our failure to meet an applicable Consumer Guarantee), loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Services or these Terms (including as a result of not being able to use the Services or the late supply of the Services), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.
15.4    Use of the Software and the Services is at your own risk. Everything on the Software and the Services is provided to you “as is” and “as available” without warranty or condition of any kind. None of the affiliates, directors, officers, employees, agents, contributors and licensors of Saasyan make any express or implied representation or warranty about the Services or any products or Services (including the products or Services of Saasyan) referred to on the Software. This includes (but is not restricted to) loss or damage you might suffer as a result of any of the following:
(a)       failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third party conduct, or theft, destruction, alteration or unauthorised access to records;
(b)       the accuracy, suitability or currency of any information on the Software, the Services, or any of its Services related products (including third party material and advertisements on the Software);
(c)       costs incurred as a result of you using the Software, the Services or any of the products of Saasyan; and
(d)       the Services or operation in respect to links which are provided for your convenience.

16        Limitation of liability
16.1    Saasyan’s total liability arising out of or in connection with the Services or these Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the resupply of the Services to you during the preceding one (1) month.
16.2    You expressly understand and agree that Saasyan, its affiliates, employees, agents, contributors and licensors shall not be liable to you for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability. This shall include, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation and any other intangible loss.
16.3    In using the Services you acknowledge that Saasyan holds no liability in any capacity for your failure to meet any obligations contemplated by the Terms, including but not limited to any liability arising as a result of your failure to comply with the Saasyan policies and guidelines.
16.4    This clause is effective even if Saasyan should have been informed of the possibility of such damages or claims.

17        Indemnity
17.1    You agree to indemnify Saasyan and its officers, directors, employees, licensors, sub-licensees, agents, affiliates, successors and assigns from and against any and all claims, damages, liabilities, losses, settlements, costs and expenses (including, without limitation lawyers’ fees and court costs) which arise out of or relate to your use of the Website and/or Services, including but is not limited to:
(a)       any misuse of the Website or Services by you, including and without limitation, any dishonest, inaccurate, incomplete, fraudulent, negligent, wrongful, unlawful, or criminal act or omission by you;
(b)       your breach of the Terms;
(c)       the use of any intellectual property created in respect of the Services not contemplated by the Terms or as a consequence of a breach of the Terms; or
(d)       any activity which you engage on or through Saasyan.
17.2    This indemnity will survive termination of the Terms.

18        Suspension of Services
18.1    Saasyan may suspend your right to access or use any portion or all of the Services immediately upon notice if Saasyan reasonably believes that:
(a)       your use of or registration for the Services

(i)        poses a security risk to the Services or any third party;
(ii)       may adversely impact the Services or the systems or content of any other Saasyan’s customers;
(iii)      may subject Saasyan, its affiliates, or any third party to liability; or
(iv)      may be fraudulent;

(b)       you are in breach of this Agreement, including if you are delinquent on your payment obligations for more than five business days; or
(c)       you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganisation, liquidation, dissolution or similar proceeding.
18.2    If Saasyan suspends your right to access or use any part or all of the Services:
(a)       you will remain responsible for all fees and charges it has incurred through the date of suspension;
(b)       you will remain responsible for any applicable fees and charges for any Services to which you continue to have access to, as well as applicable data storage fees and charges, and fees and charges for in-process tasks completed after the date of suspension;
(c)       you will not be entitled to any service credits under the Service Level Agreements for any period of suspension;
(d)       Saasyan will not erase any of your content as a result of your suspension, except as specified elsewhere in this Agreement; and
(e)       you will be charged an administration fee for the restoration of services.

19        Termination of Services
19.1    The Terms will continue to apply until terminated by either you or by Saasyan as set out below.
19.2    You may terminate the Terms by:
(a)       providing Saasyan with thirty (30) days’ notice of your intention to terminate; and
(b)       closing your accounts for all of the services which you use, where Saasyan has made this option available to you.
Your notice should be sent, in writing, to Saasyan via the ‘Contact Us’ link on the Saasyan website or via email to accounts@saasyan.com.au.
19.3    Saasyan may, at any time, terminate the Terms without notice if:
(a)       you have breached, or intend to breach, any provision of these Terms, including but not limited to your obligations set out in clause 7 above;
(b)       you remain delinquent on your payments for five business days after the temporary suspension of the Services;
(c)       Saasyan is required to do so by law; or
(d)       the provision of the Services to you by Saasyan is, in the opinion of Saasyan, no longer commercially viable or has become impractical or unfeasible.
19.4    Subject to local applicable laws, Saasyan reserves the right to discontinue or cancel your membership at any time and may suspend or deny, in its sole discretion, your access to all or any portion of the Software or the Services without notice if you breach any provision of the Terms or any applicable law or if your conduct impacts Saasyan’s name or reputation or violates the rights of those of another party.
19.5    Upon termination under this clause 19,
(a)       all of your rights under the Terms will be terminated immediately;
(b)       all of the legal rights, obligations and liabilities that you and Saasyan have benefited from, been subject to and which have accrued over time whilst the Terms have been in force, or which are expressed to continue indefinitely, shall be unaffected by the termination;
(c)       all provisions of the Terms which by their nature should survive termination will survive termination, including, without limitation, confidentiality, disclaimer, limitation of liability and indemnity;
(d)       Saasyan may maintain Member Data for a period of thirty (30) days from the date of termination, after which time it will automatically be destroyed unless otherwise agreed to in writing; and
(e)       you must, when requested by Saasyan, either immediately return or destroy all Saasyan’s contents in your possession.

20        Dispute Resolution for dispute occurring within Australia
20.1    Compulsory Mediation
If a dispute arises out of or relates to the Terms in Australia, unless the parties has complied with clause 20, either party may not commence any Tribunal or Court proceedings in relation to the dispute (except where urgent interlocutory relief is sought).
20.2    Notice
A party to the Terms claiming a dispute (“Dispute”) has arisen under the Terms, must give written notice to the other party detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute.
20.3    Resolution
On receipt of that notice (“Notice”) by that other party, the parties to the Terms (“Parties”) must:
(a)       Within seven (7) days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree;
(b)       If for any reason whatsoever, twenty-one (21) days after the date of the Notice, the Dispute has not been resolved, the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the President of the Law Society of New South Wales or his or her nominee;
(c)       The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation;
(d)       The mediation will be held in Sydney, Australia.
20.4    Termination of Mediation:
If thirty (30) days have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so.
20.5    Confidential
All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as “without prejudice” negotiations for the purpose of applicable laws of evidence.

21        Dispute Resolution for dispute occurring outside Australia
21.1    Compulsory Mediation and Arbitration
If a dispute arises out of or relates to the Terms outside of Australia, unless the parties has complied with clause 21, either party may not commence any arbitration or Court proceedings in relation to the dispute (except where urgent interlocutory relief is sought).
21.2    Notice
A party to the Terms claiming a dispute (“Dispute”) has arisen under the Terms, must give written notice to the other party detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute.
21.3    Mediation
On receipt of that notice (“Notice”) by that other party, the parties to the Terms (“Parties”) must:
(a)       Within seven (7) days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree;
(b)       If for any reason whatsoever, twenty-one (21) days after the date of the Notice, the Dispute has not been resolved, the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the President of the Law Society of New South Wales or his or her nominee;
(c)       The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation;
(d)       The mediation will be held in Sydney, Australia.
21.4    Arbitration
In the event that the Dispute is not resolved at the conclusion of the mediation, both parties are prohibited from instituting legal proceedings concerning the subject matter of the Dispute and the Dispute, controversy or claim arising out of, relating to or in connection with these Terms and Conditions, including any question regarding its existence, validity or termination, will be resolved by arbitration in accordance with the ICC Rules of Arbitration (or any rules which supersede these rules). The seat of arbitration shall be Sydney, Australia. The language of the arbitration shall be English. The number of arbitrators shall be one. This clause 21 may be used as a bar to legal proceedings issued in any Court in any country which has ratified the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958.
21.5    Confidential
All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as “without prejudice” negotiations for the purpose of applicable laws of evidence.

22        Venue and Jurisdiction
In the event of any dispute arising out of or in relation to the Software, you agree that the exclusive venue for resolving any dispute shall be in the courts of New South Wales, Australia and the venue shall be Sydney Australia.
23        Governing Law
The Terms are governed by the laws of New South Wales, Australia.  Any dispute, controversy, proceeding or claim of whatever nature arising out of or in any way relating to the Terms and the rights created hereby shall be governed, interpreted and construed by, under and pursuant to the laws of New South Wales, Australia, without reference to conflict of law principles, notwithstanding mandatory rules. The validity of this governing law clause is not contested. The Terms shall be binding to the benefit of the parties hereto and their successors and assigns.

24        Notice
24.1    Saasyan may provide any notice to you under the Terms by sending a message to the email address then associated with your account. The notice provided by Saasyan to you by email shall be deemed to have been properly given on the date Saasyan sends the email, regardless of whether you have actually received the email.
24.2    Any notices provided by you to Saasyan must be in writing and be delivered either in person, or via registered post to Saasyan Pty Ltd, Suite 1D, Level 23 Governor Phillip Tower 1 Farrer Place Sydney NSW 2000. Notices provided by registered post shall be deemed to have properly given three days after they are posted (if posted).

25        Severance
If any part of these Terms is found to be void or unenforceable, that part shall be severed and the rest of the Terms shall remain in force.

26        Waiver
26.1    A waiver of any right, power or remedy under this Agreement must be in writing signed by the party granting it.
26.2    A waiver is only effective in relation to the particular obligation or breach in respect of which it is given. It is not to be taken as an implied waiver of any other obligation or breach or as an implied waiver of that obligation or breach in relation to any other occasion.
26.3    The fact that a party fails to do, or delays in doing, something the party is entitled to do under this Agreement does not amount to a waiver.

27        Assignment
27.1    Saasyan may assign or transfer its rights or obligations under these Terms without your consent.
27.2    You may not assign or transfer your rights or obligations under these Terms without prior written consent of Saasyan. A purported assignment without written consent will be deemed to be void and convey no rights.

28        Limitation of action
You agree that any cause of action related to or arising out of your relationship with Saasyan must commence within one year after the cause of action accrues. Otherwise, such cause of action is permanently barred.

29        Independent Legal Advice
Both parties confirm and declare that the provisions of the Terms are fair and reasonable and both parties having taken the opportunity to obtain independent legal advice and declare the Terms are not against public policy on the grounds of inequality or bargaining power or general grounds of restraint of trade.