General Terms and Conditions

Last Updated:August 19 2025

1 Introduction

Welcome to Formitize. Please read these General Terms and Conditions carefully before using the Formitize Service.

The following are the terms and conditions for use of the Formitize service (the Service) between Mobile Interactive Technologies Pty Ltd (Formitize) and you (either an individual or a legal entity that you represent as an authorised employee or agent (You)).

These Terms are binding on any use of the Service and apply to You from the time that Formitize provides You with access to the Service.

By registering to use the Service, You acknowledge that You have read, understood, and agreed to these Terms and have the authority to act on behalf of any person or entity for whom You are using the Service.

 

2 Definitions and interpretation

2.1 Defined terms

Unless the context requires otherwise, in this agreement words beginning with a capital letter that are defined in Part 1 of Schedule 1 have the meaning ascribed to them in that schedule.

2.2 Interpretation

The interpretational rules contained in Part 2 of Schedule 1 apply in the interpretation of this agreement.

 

3 Agreement

(1) Formitize is only responsible to provide the Services as set out in the Registration Form.

(2) The agreement between Formitize and the Client with respect to the Services comprises the Registration Form, these general terms and conditions and any document expressly incorporated by reference into these general terms and conditions (‘this agreement’).

(3) In the event of any conflict or inconsistency between the documents comprising this agreement, these general terms and conditions will prevail to the extent of such conflict or inconsistency.

 

4 Free trial

(1) Formitize may offer a free trial period for a new Client. During the free trial period, the Client will have access to the Services without charge. The length of the free trial will be specified in the Registration Form.

(2) The Client may terminate the Services during the free trial period by providing written notice to Formitize or using any electronic termination feature offered within the Services. If the Client terminates the Services before the free trial period ends, no Fees will be incurred by the Client.

(3) If the Client does not terminate the Services before the free trial period ends, the Services will automatically convert to paid Services for the Services Period. The Client acknowledges and agrees that its supplied payment method will be charged the applicable Fees and the Client will be committed to the full Services Period.

(4) Formitize reserves the right to modify or terminate a free trial offer at any time.

 

5 Term

5.1 Term of this agreement

This agreement commences on the earlier of the Client:

(1) confirming in writing that it accepts this agreement;
(2) registering an Account;
(3) accessing or using the Services; and(4) making payment of any Fees to Formitize,
and continues until this agreement is terminated in accordance with clause 21.

5.2 Services Period

(1) The Services will be supplied by Formitize for the Services Period.

(2) Unless the Client terminates this agreement in accordance with clause 21 prior to the end of the then current Services Period, the Services Period will automatically renew for successive periods under the same terms.

 

6 Supply of Services

6.1 Formitize’s obligations

(1) In consideration for the payment of the Fees by the Client, Formitize will provide the Services to the Client in accordance with this agreement.

(2) Formitize must:

(a) comply with all applicable laws in the performance of its obligations under this agreement; and

(b) deliver the Services to a standard of skill, care and diligence expected for services of a similar nature to the Services.

(3) The Client acknowledges and agrees that Formitize will determine at its absolute discretion the Personnel who carry out the Services.

6.2 Delay of Services

(1) If this agreement expresses a time within or by which the Services are to be provided, such times are an estimate only and not a guarantee of the supply of the Services by the specified times.
(2) Formitize will not be liable to the Client as a result of Formitize’s failure to supply any Services by any specified date(s) and time(s) and the Client will have no Claim against Formitize with respect to such failure or delay.

6.3 Variations to Services

(1) The Client may request variations to the scope of the Services by giving Formitize written notice of the proposed variations (Variation Request).
(2) A Variation Request will have no effect unless or until accepted by the Client and Formitize in writing.
(3) The Client acknowledges and agrees that variations to the scope of the Services may be subject to an increase in the Fees. Formitize will provide the Client with a written estimate of applicable increases in the Fees upon receipt of a Variation Request.

 

7 SaaS

7.1 SaaS Licence

(1) Formitize will, as part of the Services, supply the Client with the relevant software as a service (SaaS) solution as particularised in the Registration Form (SaaS).

(2) During the term of this agreement and subject to the Client’s compliance with this agreement, Formitize grants the Client and its Authorised Users a limited, non-exclusive, non-transferable, non-sublicensable and revocable licence to access and use the SaaS solely for the Client’s business purposes and pursuant to the terms of this agreement (SaaS Licence).

7.2 Restrictions and prohibitions

The Client must not and must ensure that each Authorised User and the Client’s Personnel do not:

(1) access or use the SaaS except as permitted by the SaaS Licence and only through Formitize’s interface;

(2) access or use the SaaS in a way that is in breach of any law or infringes the rights of any person;

(3) interfere with or interrupt the supply of the SaaS or the Formitize Environment or any other persons access to or use of the SaaS;

(4) introduce into the SaaS or the Formitize Environment any computer program or virus or other code that is harmful, destructive, disabling or which assists in or enables theft, alternation, denial of service, unauthorised access to or disclosure, destruction or corruption of information or data;

(5) directly or indirectly use, copy, decompile or reverse engineer the SaaS;

(6) use the SaaS to carry out security breaches or disruptions of a network;

(7) alter or modify the SaaS in any way that is not contemplated by the purposes of the Services;

(8) attempt to access any data or log into any server or account that the person is not expressly authorised to access;

(9) circumvent user authentication or security of any of the Formitize Environment; and

(10) access or use the SaaS to transmit, publish or communicate material that is, defamatory, offensive, abusive, indecent, menacing, harassing or unwanted.

7.3 Availability of SaaS

(1) Formitize will use its best endeavours to make the SaaS available at all times during the term of this agreement.

(2) From time to time, Formitize may perform such reasonable maintenance and updates in relation to the SaaS (including to vary the functionality, features, performance and other characteristics and capabilities of the SaaS).

(3) The Client acknowledges and agrees that access to, or the functionality of all or part of the SaaS, may need to be suspended for a time in order for Formitize to perform the maintenance and updates.

(4) To the maximum extent permitted by law, Formitize will not be liable to the Client for any interruptions or downtime to the SaaS as a result of any maintenance or updates.

8 Account and Authorised Users

8.1 Account

(1) The Client must have an Account in order to access and use the SaaS.

(2) Each Authorised User will require a login linked to the Account in order to access and use the SaaS.

(3) The Client:

(a) must ensure that any information provided to Formitize in connection with any Account is accurate and complete; and

(b) warrants that it is authorised to provide that information.

(4) The Client and each Authorised User must:

(a) keep the Account and login details secure and confidential at all times;

(b) not allow others to access or use the Account and login details; and

(c) immediately inform Formitize of any unauthorised or suspected authorised access to the Account and/or login details.

8.2 Authorised Users

(1) Formitize will provide each Authorised User with access to the SaaS.

(2) The Client must ensure that each Authorised User complies with the terms of this agreement and the Client is solely responsible for, and bears all risk with respect to, the acts and omissions of its Authorised Users (and other Personnel) in connection with their access to and use of the SaaS.

(3) Each Authorised User is only permitted to have one (1) active screen session at any time.

(4) Formitize may implement security measures with respect to the SaaS and Account from time to time, including multi-factor authentication, device authentication, or session monitoring and the Client will be notified of such through Guidelines issued by Formitize from time to time.

(5) Any request by the Client to change the Authorised Users permitted to use the SaaS will be subject to a Variation Request pursuant to clause 6.3.

 

9 Artificial Intelligence

The Client acknowledges and agrees that:

(1) the Services may incorporate artificial intelligence (AI) components;

(2) outputs generated by any AI components may not always be complete, accurate or appropriate and is provided on an ‘as is’ basis;

(3) Formitize makes no warranties or representations regarding the performance, accuracy or reliability of AI generated outputs;

(4) any recommendations or insights produced by the AI functionality are for informational purposes only and should not be construed as professional, legal, financial, or other advice; and

(5) it is solely responsible for verifying the accuracy and suitability of any AI generated output before relying on it.

 

10 Support Services

(1) If the Services includes support services for the SaaS (as detailed in the Registration Form) (Support Services) and the Client requires those Support Services, the Client must place a written request with Formitize via the designated channels.

(2) Formitize will use its best endeavours to make the Support Services available to the Client within the response times as advised by Formitize to the Client from time to time during the term of this agreement.

(3) The Client agrees to reasonably use the Support Services. Where Formitize considers the Client’s usage of the Support Services to be unreasonable, Formitize may:

(a) adjust its response times for Support Services; and/or

(b) vary the Fees to reflect the Client’s increased use of the Support Services,
effective on and from Formitize giving the Client written notice.

 

11 Third Party Inputs

(1) The Services provided by Formitize may include, rely upon, interact with, or be subject to a product and/or service provided by a third party (including software, tools, integrations, payment processors, analytics and authentication systems) (Third Party Inputs).

(2) The Client acknowledges and agrees that:

(a) Formitize’s obligations under this agreement may be contingent upon or affected by Third Party Inputs;

(b) the Client may experience delay, interruption or disruption to the availability, functionality and good working condition of Services that are subject to or dependent on Third Party Inputs, such that Formitize’s provision of the Services may be delayed, suspended or limited;

(c) Formitize is not responsible for any breach of this agreement to the extent that such breach was caused by or contributed to by any Third Party Inputs;

(d) title in Third Party Inputs remain at all times with that third party;

(e) Formitize does not give any representations or warranties in relation to Third Party Inputs;

(f) Formitize is not responsible for interruption or error, the condition, performance and availability of any Third Party Inputs.

(3) To the maximum extent permitted by law, Formitize will not be liable for any liability caused or contributed to by, arising from or connected with any Third Party Inputs.

 

12 Client obligations and acknowledgements

12.1 Client obligations

In connection with Formitize’s supply of the Services, the Client must, and must ensure that its Authorised Users and Personnel:

(1) comply with the terms of this agreement;

(2) comply with all applicable laws;

(3) provide Formitize and its Personnel with reasonable access to the Client Environment (as is necessary for the Services);

(4) ensure all information provided to Formitize is up-to-date and correct;

(5) not make changes or amendments to the Client Environment which may affect Formitize’s performance of its obligations under this agreement;

(6) comply with any Guidelines with respect to the utilisation of the Services as modified by Formitize from time to time;

(7) cooperate in good faith with, and provide prompt access, assistance and collaboration to, Formitize (and its Personnel) as Formitize considers is necessary to fulfil its obligations under this agreement. Such access, assistance, collaboration and cooperation will include the Client providing:

(a) all information, documentation, Client Data, resources and instructions regarding the Services as requested by Formitize;

(b) assistance and support to allow Formitize to acquire the knowledge necessary to efficiently provide the Services;

(c) access to and use of the facilities, Client Environment, services and other resources being used by the Client in connection with the Services; and

(d) access to, and the cooperation of, the Personnel of the Client.

12.2 Client acknowledgments

The Client acknowledges and agrees that:

(1) Formitize reserves the right to vary the functionality, features, performance and other characteristics and capabilities of the Services from time to time at its sole and absolute discretion, provided that it does not materially and adversely affect the intended purpose of the Services;

(2) Formitize makes no representations and warranties that the Services (or any part of them) will be uninterrupted or error-free;

(3) Formitize makes no representations and warranties as to the accuracy or reliability of any information or content provides through the Services;

(4) the technical processing and transmission of the Services, including Client Data, may be transferred and involve transmission over various networks and/or devices and may require variation to conform and adapt to technical requirements;

(5) the Services are provided for the sole benefit of the Client and/or its Authorised Users and the Client and any Authorised Users must not disclose, or provide access to, the Services to third parties;

(6) Formitize makes no representations and warranties that the Services are free from viruses, malicious software or other conditions that may cause damage to, or interfere with Client Data and the Client Environment;

(7) the Client and its Personnel’s access to and use of the Services is at the sole risk of the Client and the Client will be responsible for the access to and use of the Services by its Authorised Users, Personnel and any other person; and

(8) the Services may include links to third-party website or services that are not owned or controlled by Formitize and Formitize is not responsible for the content, privacy policies, or practices of these third-party sites or services.

13 Client warranties

The Client represents and warrants to Formitize that at all times during the term of this agreement:

(1) if applicable, it is validly constituted and incorporated in its jurisdiction of incorporation;

(2) it has all necessary powers, capacity and consents to enter into, and to perform its obligations under this agreement;

(3) the Client has all rights, consents, authorities, licences, approvals and permissions necessary to receive the benefit of the Services;

(4) the Client Environment is safe and suitable for the Services and Formitize’s access to, use and/or modification of the Client Environment does not violate any law or the rights of any third party;

(5) it will provide Formitize with any information that it requires in order to supply the Services;

(6) all information and documentation provided by the Client to Formitize is true, correct and complete;

(7) the Client has not relied on any representations or warranties made by Formitize in relation to the Services (including as to whether the Services are or will be fit or suitable for the Client’s purposes); and

(8) it is not subject to an Insolvency Event and is not aware of any facts or circumstances which may lead to it being subject to an Insolvency Event.

 

14 Fees

14.1 Payment of Fees

(1) The Client must pay Formitize the Fees in the manner and at the times specified in the Registration Form.

(2) To the fullest extent permitted by law, all Fees paid by the Client are non-refundable.

(3) If required by law, Formitize will provide the Client with a correctly rendered tax invoice from time to time with respect to the Fees.

(4) By providing Formitize with a payment method, the Client:

(a) represents that it is authorised to use the payment method;

(b) authorises Formitize to charge the Client the Fees using the payment method in accordance with the Registration Form (for example, at the time of purchase, shortly after purchase or on a recurring basis for subscription Services); and

(c) if applicable, agrees that it is authorising recurring payments for subscription Services, and payments will be made to Formitize by the method and at the recurring intervals as set out in the Registration Form.

(5) If automatic billing fails for any reason, Formitize will issue an invoice requiring the Client to manually complete the payment in full by the specified due date.

14.2 Fee increases

(1) The Client acknowledges and agrees that Formitize may (acting reasonably) increase the Fees from time to time. Any increases in the Fees will take effect at the end of the current Services Period. Formitize will provide the Client with reasonable prior notice of any Fee increase, allowing the Client the opportunity to cancel the Services prior to the new Fees taking effect. By continuing to use the Services after the increased Fees become effective, the Client agrees to pay the increased Fees.

(2) The Client acknowledges and agrees that if:

(a) Formitize suspends the provision of the Services in accordance with this agreement;

(b) Formitize is required to provide Services in circumstances other than those expressly or reasonably anticipated in this agreement or Formitize provides incidental Services outside the scope of the Services; or

(c) a delay in the supply of the Services is caused or contributed to by the Client, its Personnel or a third party,
then Formitize is entitled to increase the Fees in an amount equal to the reasonable loss, damage or expense incurred by Formitize.

14.3 Set-off or deduction

(1) The Client is not entitled to withhold, set-off or deduct any amounts which are payable by the Client to Formitize.

(2) Formitize may set-off or deduct from any monies payable to the Client under this agreement any amounts which are payable by the Client to Formitize.

14.4 Interest

If the Client fails to pay any amount to Formitize by the time stipulated, then Formitize reserves the right to charge interest on the unpaid amount at the rate of 10% per annum, calculated daily and compounded monthly.

14.5 Remedies for non-payment

In addition to other rights and remedies available to Formitize under this agreement or at law, where the Client fails to pay any amount to Formitize, Formitize will be entitled to do any one (1) or more of the following:

(1) Suspend all or any part of the Services.

(2) Take any debt recovery or enforcement action that Formitize sees fit (including recovering incurred costs on a full indemnity basis).

(3) Report the default of the Client to any independent credit reporting agencies.

(4) Assign or transfer any debt owing to Formitize to a debt collector, debt collection agency, or other third party without prior notice or approval of the Client.

 

15 GST

(1) In this clause 15:

(a) GST Law has the same meaning given to that expression in A New Tax System (Goods and Services Tax) Act 1999 (Cth); and

(b) words and expressions have the same meaning as in the GST Law.

(2) Unless otherwise expressly stated, all sums payable, or consideration to be provided, under this agreement are exclusive of GST.

(3) If GST is payable by the Client on any supply made under this agreement, the Client must pay to Formitize an amount equal to the GST payable on the supply at the same time as payment of the consideration for the supply and which must be paid in addition to the consideration for the supply.

(4) The Client is not required to pay any GST until Formitize issues a tax invoice for the supply.

(5) If an adjustment event arises in respect of a taxable supply made under this agreement, a corresponding adjustment must be made between the supplier and the recipient in respect of any amount paid by the recipient, an adjustment note issued if required, and any payments to give effect to the adjustment must be made.

(6) If the recipient is required under this agreement to pay for or reimburse an expense or outgoing of the supplier, or is required to make a payment under an indemnity in respect of an expense or outgoing of the supplier, the amount to be paid by the recipient is to be reduced by the amount of any input tax credit in respect of that expense or outgoing that the supplier is entitled to.

 

16 Intellectual Property

16.1 Client IP

(1) The Client will retain all right, title and interest in the Client IP.

(2) The Client grants Formitize a non-exclusive, revocable, worldwide, royalty-free, non-sublicensable and non-transferable licence to use, reproduce and modify the Client IP solely for the performance of Formitize’s obligations under this agreement.

(3) The Client consents to (and agrees to ensure that its Personnel consents to) Formitize’s use or infringement of any Moral Rights (having the meaning given in the Copyright Act 1968 (Cth)) that the Client or any of its Personnel has in any Client IP.

16.2 Formitize IP

(1) Formitize owns all right, title and interest in the Formitize IP, which will at all times vest, or remain vested in, Formitize and nothing in this agreement constitutes an assignment or transfer of such Intellectual Property to the Client.

(2) To the extent that ownership of any Intellectual Property in the Formitize IP does not automatically vest in Formitize upon its creation, the Client agrees to do all things necessary to ensure that such Intellectual Property vests in and is owned by Formitize.

(3) Formitize grants the Client a limited, non-exclusive, revocable, non-sublicensable and non-transferable licence to use those parts of the Formitize IP that Formitize considers necessary for the sole purpose of the Client receiving the benefit of the Services.

16.3 Restrictions

The Client must not (and must not attempt to) and must ensure that its Authorised Users and Personnel do not (and do not attempt to), whether directly or indirectly:

(1) copy, modify, alter, enhance, vary, adapt, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble or decompile any part of the Formitize IP;

(2) reproduce, transmit, transfer, distribute, sell, assign, licence or sublicence, outsource, rent, publish, make available, circulate or otherwise deal with any part of the Formitize IP;

(3) cause any part of the Formitize IP to be imbedded or combined with the intellectual property of another person or on any other resource;

(4) claim or assert any ownership right or interest in any part of the Formitize IP;

(5) take any action that may compromise or jeopardise Formitize’s rights in any part of the Formitize IP;

(6) use any unauthorised or modified version of the Formitize IP;

(7) use the Formitize IP for an illegal, fraudulent, deceptive or unauthorised purpose, including but not limited to hacking, phishing or distributing malware; and

(8) remove or deface any confidentiality, copyright or other proprietary notice with respect to any part of the Formitize IP.

17 Client Data

17.1 Security

(1) Formitize endeavours to maintain high standards of information security and data protection and adopts best practices aligned with ISO/IEC 27001 (AS 27001) principles and the Trust Services Criteria as set forth in SOC 2.

(2) Formitize implements various security measures, including but not limited to risk management protocols, access controls, encryption, and continuous monitoring, in order to safeguard Client Data and ensure the integrity of its Services.

(3) The security measures are provided by Formitize on a best-efforts basis and Formitize expressly disclaims any responsibility or liability for any direct, indirect, incidental, special or Consequential Losses arising out of, or in connection with, any breach or alleged breach of information security. Formitize does not warrant or guarantee that these measures will provide absolute security for Client Data.

(4) The Client acknowledges that while Formitize commits to applying robust information security standards, it is not responsible for any failures in security that may occur despite these efforts.

(5) The Client must (and must ensure that its Authorised Users and Personnel):

(a) use strong passwords and enable multi-factor authentication where applicable in connection with the Account;

(b) not allow unauthorised Personnel to access and use the Services;

(c) immediately report security vulnerabilities or suspicious activities related to the Services to Formitize;

(d) ensure that use of the Services aligns with industry security best practices and does not introduce vulnerabilities to the Services or the Formitize Environment;

(e) adhere to cybersecurity best practices to maintain the integrity and security of the Client Data, Client Environment and Formitize Environment;

(f) ensure that access to confidential Client Data is managed through role-based access controls and strict identity verification mechanisms; and

(g) ensure that sensitive Client Data is encrypted in transit.

(6) The Client must cooperate with Formitize in connection with Formitize’s reasonable security and compliance requests throughout the term of this agreement to ensure the security and data protection of the Client Environment, Client Data, the Services and the Formitize Environment.

(7) Formitize reserves the right to conduct security audits of the Client’s use of the Services at its sole discretion to verify the Client’s compliance with Formitize’s security and data protection requirements.

17.2 Ownership and responsibility

(1) Formitize and the Client acknowledge and agree that the Client:

(a) will transmit and/or disclose Client Data to Formitize in the course of Formitize’s supply of the Services; and

(b) retains all right, title and interest in the Client Data.

(2) The Client is solely responsible for any Client Data and the consequences of the Client and Formitize using, disclosing, storing, collecting or transmitting it.

(3) Formitize encourages the Client to maintain their own backups of Client Data.

(4) To the fullest extent permitted by law, Formitize does not assume any responsibility or liability with respect to Client Data, including with respect to or in connection with:

(a) any errors or difficulties in producing, altering, erasing, using, receiving, sending, accessing or utilising any Client Data;

(b) any loss, corruption, destruction or unauthorised access to the Client Data (including loss of Client Data due to system failures, cyberattacks and external events beyond the reasonable control of Formitize); and

(c) the integrity or existence of any data on the Client Environment, network or any device controlled by the Client or its Authorised Users and Personnel.

(5) The Client represents and warrants to Formitize that:

(a) all Client Data provided to Formitize is true, correct, up-to-date and complete;

(b) the Client has all rights, consents, authorities, approvals, releases and permissions necessary to provide the Client Data to Formitize and to grant the rights to Formitize under this agreement;

(c) the Client Data and its transmission to and/or use, collection, storage, processing or disclosure by Formitize as contemplated by this agreement does not and will not infringe upon the rights of any third party and will not be in breach of any law;

(d) the provision of Client Data that is inaccurate or incomplete may affect the use, output and operation of the Services.

 

17.3 Licence to use Client Data

The Client grants to Formitize a licence to copy, transmit, store, backup and/or otherwise access or use Client Data for the purposes of and in connection with:

(1) Formitize’s supply of the Services to the Client and its Authorised Users;

(2) Formitize performing its obligations under this agreement;

(3) enhancing, developing and modifying the Services;

(4) performing Analytics in accordance with clause 18; and

(5) developing and commercialising other services of Formitize on the condition that Formitize de-identifies Client Data.

17.4 Client Data post-termination

(1) For the duration of the term of this agreement, Client Data is retained and remains fully accessible to the Client.

(2) Upon termination of this agreement, the Client may opt to maintain a Read-Only Account for a Fee. If the Client opts-in, the Client will have continued access to the Client Data strictly for reference purposes, without any capability to modify, update, or otherwise alter the Client Data.

(3) If the Client does not elect to maintain a Read-Only Account, the Client Data will be permanently deleted from the Formitize Environment within thirty (30) days of termination of this agreement, unless:

(a) Formitize is required by law to keep the Client Data; and/or

(b) Formitize elects to anonymise Client Data (which it must do within thirty (30) days of termination of this agreement).

(4) Once Client Data is deleted or anonymised, it cannot be recovered. The Client is solely responsible for ensuring that it maintains copies of or backups for any records it deems necessary during the term of this agreement or while accessing Client Data via a Read-Only Account.

 

18 Analytics

(1) The Client acknowledges and agrees that Formitize may:

(a) monitor, analyse and compile statistical information based on and/or related to the Client’s and its Personnel’s use of the Services, which may utilise Client Data, in an aggregated and anonymised format (Analytics); and

(b) make such Analytics publicly available, provided that it does not contain any Personal Information.

(2) Formitize owns all right, title and interest in and to the Analytics and all related software, technology, documentation and content used or provided in connection with the Analytics, including all Intellectual Property in the Analytics.

(3) Formitize may use and disclose to third party service providers anonymous data about the Client and its Authorised Users access to and use of the Services for the purpose of assisting Formitize to improve the Services. 19 Privacy

19 Privacy

19.1 Formitize obligations

(1) Formitize will comply with all applicable privacy laws and the Privacy Policy in dealing with Personal Information transferred by and/or disclosed to Formitize by the Client under or in connection with this agreement.

(2) The Client acknowledges and agrees that:

(a) it has been provided with an opportunity to review the Privacy Policy prior to entering into this agreement; and

(b) it has read, understood, and agreed to the Privacy Policy.

(3) The Client acknowledges that the Privacy Policy may be updated from time to time, and the Client's continued engagement with Formitize and the Services following any such updates constitutes acceptance of the updated Privacy Policy.

19.2 Client obligations

The Client acknowledges and agrees that:

(1) it is responsible for collecting, using, disclosing, storing, transferring or otherwise dealing with; and

(2) it will comply with the requirements of all applicable privacy laws (as applicable to the Client’s jurisdiction) in respect of,
all Personal Information collected, used, disclosed, stored, transferred or otherwise dealt with under or in connection with this agreement.

19.3 Client warranties

The Client represents and warrants to Formitize that:
(1) the Client has all rights, consents, authorities, approvals, releases and permissions necessary to:

(a) transmit, disclose or otherwise deal with Personal Information in the manner required by this agreement; and

(b) to grant the rights to Formitize under this agreement for the purposes of Formitize’s performance of its obligations under this agreement, including the use, collection, storage, processing or disclosure by Formitize as contemplated by this agreement, including the disclosure of Personal Information to a third party in Australia or overseas;

(2) Personal Information provided to Formitize is complete, accurate and up-to-date;

(3) the Client’s transmission to and/or the use, collection, storage, processing or disclosure by Formitize as contemplated by this agreement does not and will not infringe upon the rights of any third party and is not and will not be in breach of any privacy law; and

(4) the Client will immediately notify Formitize upon becoming aware of any breach of privacy laws (as applicable to the Client’s jurisdiction) or the infringement of the rights of any third party that may be related to or connected with the Personal Information transmitted and/or disclosed to Formitize under or in connection with this agreement.

19.4 Indemnity

The Client indemnifies Formitize against all Claims that may be brought against Formitize as a direct or indirect result of any breach or non-performance of the Client’s obligations under this clause 19.

 

20 Confidentiality

20.1 Non-disclosure

A party must:

(1) not disclose any Confidential Information of the other party except:

(a) with the prior written consent of that party; or

(b) in accordance with the terms of this agreement;

(2) use all reasonable endeavours to protect the Confidential Information of the other party from any unauthorised disclosure; and

(3) only use the Confidential Information of the other party for the purposes for which it was disclosed or provided, and not for any other purpose.

20.2 Exceptions to non-disclosure

A party may disclose Confidential Information of the other party:

(1) if required in order for that party to comply with its obligations under this agreement;

(2) where such disclosure is made to those of its Personnel, professional advisers, related bodies corporate and shareholders who:

(a) have a need to know (and only to the extent each has a need to know); and

(b) are aware and agree that the information that is to be disclosed must be kept confidential; or

(3) where:

(a) required by law or any order of any court, tribunal, authority, regulatory body or the rules of any securities exchange (whether in Australia or elsewhere) to be disclosed; and

(b) the party ensures that information is disclosed only to the extent reasonably and lawfully required.

20.3 Duration of confidentiality obligations

Unless otherwise agreed by the parties in writing, the obligation of confidentiality set out in this agreement operates indefinitely and does not terminate on the termination of this agreement.

21 Suspension and termination

21.1 Suspension of Services

(1) If the Client fails to comply with any provision of this agreement, Formitize may (at its absolute discretion) suspend its performance of all or any part of the Services until such time that the Client has remedied the default to the satisfaction of Formitize.

(2) Formitize may, by written notice to the Client, suspend its performance of the Services if the Services cannot be performed by Formitize as a result of any Third Party Input, including for unavailability, change in functionality, defect or default.

(3) The Client must continue to pay all Fees to Formitize notwithstanding any suspension of Services under paragraph (1).

21.2 Early termination

(1) Formitize may terminate this agreement for convenience by giving the Client thirty (30) days written notice.

(2) The Client may terminate the Services at any time by providing written notice to Formitize or using any electronic termination feature offered within the Services and the Client’s access to the Services will end:

(a) at the expiry of the then Services Period (if Fees are paid upfront in full); or

(b) if Formitize bills the Client for Fees on a periodic basis, at the end of the then billing period in which the Client provides written notice of termination to Formitize.

21.3 Immediate termination rights

(1) Formitize may terminate this agreement immediately by notice in writing to the Client if the Client:

(a) becomes subject to an Insolvency Event;

(b) commits a breach of this agreement which is not capable of being remedied; or

(c) commits a breach of this agreement and fails to remedy that breach within fourteen (14) days of receipt of written notice from Formitize specifying such breach.

(2) If Formitize terminates this agreement pursuant to paragraph (1), the Client must pay to Formitize:

(a) if not already paid on an upfront basis, the Fees for the remainder of the then current Services Period (being an amount equal to the aggregate of all Fees that would have been paid by the Client if the agreement had continued until the end of the then current Services Period); and

(b) Formitize’s reasonable additional costs arising directly from the termination.

21.4 Consequences of termination

Upon termination of this agreement:

(1) the accrued rights, remedies and liabilities of a party remain unaffected;

(2) subject to clause 21.2(2), Formitize will immediately cease providing the Services;

(3) the Client must pay for all Services provided prior to termination, including all outstanding Fees and Fees for Services which have been provided and have not yet been invoiced to the Client, and all other amounts due and payable under this agreement; and

(4) subject to anything to the contrary in this agreement, each of Formitize and the Client must at the other party’s option, either delete and destroy or return to the other party any of its Confidential Information (and any copies thereof) in its possession or control.

 

22 Liability

22.1 Exclusion of warranties

(1) To the fullest extent permitted by law:

(a) Formitize does not give and disclaims all representations and warranties (whether in statute, at law or on any other basis) which are not specifically included in this agreement; and

(b) any condition or warranty which would otherwise be implied in this agreement with respect to the Services is excluded.

(2) Nothing in this agreement excludes any rights, warranties, guarantees and remedies relating to the provision of the Services which by law cannot be excluded, restricted or modified. If the Australian Consumer Law applies to the Client as a consumer, nothing in this agreement excludes the Client’s rights under the Australian Consumer Law and Formitize’s liability will be governed solely by the Australian Consumer Law and this agreement.

22.2 Consequential Loss

In no event will Formitize be liable to the Client for Consequential Losses.

22.3 Limitation of liability

To the maximum extent permitted by law:

(1) Formitize’s total liability to the Client for any Claim, loss, damage, cost or expense arising under or in connection with this agreement is limited to (at the election of Formitize):

(a) resupplying the Services to the Client; or

(b) the Fees actually paid by the Client to Formitize for the Services in the preceding twelve (12) months prior to the date the relevant liability arises; and

(2) a party’s liability will be reduced proportionately to the extent the relevant liability was caused or contributed to by the acts or omissions of the other party (or any of its Personnel), including any failure by the other party to mitigate its loss.

22.4 No liability

To the maximum extent permitted by law, Formitize will not be liable for any liability caused or contributed to by, arising from or connected with:

(1) loss or damage to any property not caused or contributed to by the acts or omissions of Formitize or its Personnel;

(2) failure or delay in providing the Services;

(3) any interruptions or downtime to the Services as a result of any maintenance or updates;

(4) the Client Environment and Client Data;

(5) the acts or omissions of the Client, the Authorised Users or the Client’s Personnel;

(6) the Client’s use or application of the Services;

(7) any works, services, goods, materials or items which do not form part of the Services, or which have not been provided by Formitize;

(8) any Third Party Inputs; and

(9) any event outside of Formitize’s reasonable control (including a Force Majeure Event, and a fault, defect, error or omission in the Client Environment or Client Data).

22.5 Indemnity

The Client indemnifies Formitize from and against any loss, liability, damage, cost or expense arising out of or in connection with any Claim against Formitize with respect to the Client breaching this agreement.

 

23 General provisions

23.1 Proscribed Relationship

(1) For the purpose of this clause 23.1, Proscribed Relationship means any of the following relationships:

(a) Joint venturers.

(b) Partners.

(c) Trustee and beneficiary.

(d) Employer and employee.

(e) Principal and agent.

(2) No term of this agreement is to be construed so as to give rise to a Proscribed Relationship.

(3) A party does not have the authority to bind another and each party must ensure that they do not conduct themselves so as to hold out, or otherwise represent, that a Proscribed Relationship exists.

23.2 Client as trustee

If the Client is the trustee of a trust, the Client warrants that:

(1) it is the sole trustee of the trust and no action has been taken to remove the Client as trustee or to appoint additional or new trustees;

(2) it has power under the trust deed to enter into and perform its obligations under this agreement;

(3) it enters into or will enter into this agreement in its own capacity and as trustee of the trust;

(4) it has a right to be fully indemnified out of the trust property and such right has not been restricted, limited or prejudiced in any way;

(5) the trust property is sufficient to satisfy any right of indemnity; and

(6) the Client is not in breach or default of any terms of the trust deed, and it has complied with all its obligations in respect of the trust.

23.3 Force Majeure Event

(1) If a Force Majeure Event gives rise to a failure or delay in Formitize performing any obligation under this agreement, that obligation will be suspended for the duration of the Force Majeure Event.

(2) Upon becoming aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in Formitize performing any obligation under this agreement, Formitize will:

(a) promptly notify the Client; and

(b) inform the Client of the period for which it is estimated that such failure or delay will continue.

(3) If a delay due to a Force Majeure Event exceeds sixty (60) days, either Formitize or the Client may terminate this agreement immediately on providing written notice to the other.

(4) This clause 23.3 does not affect the obligation of the Client to pay any amount that is due and payable to Formitize under this agreement.

23.4 Assignment and subcontracting

(1) Formitize may assign, novate or sub-contract any or all of its rights and obligations under this agreement without the prior written consent of the Client.

(2) The Client cannot assign or novate any part of its rights and obligations under this agreement without the prior written consent of Formitize.

23.5 Notices

Any notice, consent or other communication under this agreement:

(1) must be in writing addressed to the relevant address last notified by the recipient party to the other party;

(2) sent by pre-paid mail or transmitted by email; and

(3) will be deemed to have been served on the third Business Day after posting (if sent by pre-paid mail) or on the day of transmission if a Business Day, otherwise on the next Business Day (if transmitted by email).

23.6 Survival

Provisions of this agreement which are expressed or by their nature intended to survive termination, expiry or completion of this agreement continue with full force and effect.

23.7 Entire agreement

This agreement is the entire agreement of the parties and supersedes all prior agreements, arrangements and undertakings between the parties.

23.8 Waiver

The non-exercise of or delay in exercising any power or right of a party does not operate as a waiver of that power or right, nor does any single exercise of a power or right preclude any other or further exercise of it or the exercise of any other power or right. A power or right may only be waived in writing, signed by the parties to be bound by the waiver.

23.9 Cooperation

Each party must sign, execute and deliver all deeds, documents, instruments and act reasonably and effectively to carry out and give full effect to this agreement and the rights and obligations of the parties under it.

23.10 Amendment

Formitize may amend these general terms and conditions at any time and will inform the Client in writing when it does. The Client continuing to use the Services after the changes become effective means the Client agrees to the amended general terms and conditions.

23.11 Unenforceability

Any provision of this agreement which is invalid or unenforceable in any jurisdiction is to be read down for the purposes of that jurisdiction, if possible, so as to be valid or enforceable, and is otherwise capable of being severed to the extent of the invalidity or enforceability, without affecting the remaining provisions of this agreement or affecting the validity or enforceability of that provision in any other jurisdiction.

23.12 Joint parties

If two (2) or more parties are included within the same defined term in this agreement:

(1) a liability of those parties under this agreement is a joint and several liability of each of them;

(2) a right given to those parties under this agreement is a right given severally to each of them; and

(3) a representation, warranty or undertaking made by those parties is made by each of them.

23.13 Governing law

The law in force in the State of New South Wales governs this agreement. The parties:

(1) submit to the exclusive jurisdiction of the courts of New South Wales and any courts that may hear appeal from those courts in respect of any proceedings in connection with this agreement; and

(2) may not seek to have any proceedings removed from the jurisdiction of New South Wales on the grounds of forum non conveniens.

Schedule 1:

Defined terms and interpretation

Part 1 – Definitions

 

Account	means an account accessible to the Client and/or Authorised Users to use the Services.
Authorised User(s)	means a user permitted to access and use the Services under the Account, as further particularised in the Registration Form or as agreed in writing between Formitize and the Client.
Business Day	means a day on which trading banks under the Banking Act 1959 (Cth) are open for business in Sydney, NSW, not being a Saturday, Sunday or a declared public holiday.
Claim	against any person any allegation, action, demand, cause of action, suit, proceeding, judgement, debt, damage, loss, cost, expense or liability howsoever arising and whether present or future, fixed or unascertained, actual or contingent whether at law, in equity, under statute or otherwise.
Client	means the person or persons identified as the client or customer in the Registration Form.
Client IP	means all Intellectual Property owned or licenced to the Client that: (1) exists prior to the date of this agreement; or (2) is subsequently developed or acquired by the Client independently of and for purposes other than in accordance with this agreement.
Client Data	means the information, materials, data, text, files, images, software, documents, qualifications and other Client IP inputted by the Client, its Authorised Users and Personnel into the Services or stored by or generated by the Client’s use of the Services, including any Personal Information collected, used, disclosed, stored or otherwise handled in connection with this agreement.
Client Environment	means the Client’s computing and information technology infrastructure, including all hardware, equipment, software, telecommunications, network, equipment and systems.
Confidential Information	means: (1) this agreement; (2) intellectual property: any and all Intellectual Property of a party; (3) business information: information regarding trade secrets and other business information of a party; (4) information obtained through performance: all information which becomes known to a party as a consequence of this agreement; (5) technical information: information regarding designs, development processes and tools, hardware specifications, know-how, production, research, software specifications, databases and software of a party; (6) disclosed information: any other information disclosed by a party that is identified as being confidential or would be apparent to a reasonable person that such information was disclosed in confidence by that party.
Consequential Losses	means any loss or damage arising from a breach of contract or agreement, tort, or any other basis in law or equity including, but without limitation to, loss of profits, loss of revenue, loss of production, loss or denial of opportunity, loss of access to markets, loss of goodwill, indirect or remote or unforeseeable loss, loss of business reputation, future reputation or publicity, or any similar loss.
Formitize	means Mobile Interactive Technologies Pty Ltd (ABN 27 156 432 389).
Formitize Environment	means all hardware, software, networks, telecommunications and other information technology infrastructure and systems used by Formitize.
Formitize IP	means all Intellectual Property owned or licenced to Formitize that: (1) exists prior to the date of this agreement; (2) is subsequently developed or acquired by Formitize independently of and for purposes other than in accordance with this agreement; and (3) is subsequently derived or arises from, or is connected with, the performance of the Services, and includes (but is not limited to) all work, models, processes, technologies, strategies, materials, information, documentation and Services (including the SaaS) that Formitize provides to the Client, and includes any enhancement, development, modification, adaptation, improvement or application of or other technical advances made to the foregoing made by or on behalf of either party (or any of their respective Personnel).
Fees	means the amounts payable by the Client to Formitize for the Services pursuant to the Registration Form.
Force Majeure Event	means an event, or a series of related events, that is outside the reasonable control of Formitize (including failures of the internet or any telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks, government order, pandemics, epidemics and wars).
Guidelines	means any guideline, manual or policy provided by Formitize to the Client from time to time relating to the function, purpose, method, operation and use of the Services.
Insolvency Event	means the happening of any of the following events: (1) Except to reconstruct or amalgamate while solvent, a body corporate enters into, or resolves to enter into, a scheme of arrangement, agreement of company arrangement or composition with, or assignment for the benefit of, all or any class of its creditors, or it proposes a reorganisation, moratorium or other administration involving any of them. (2) A body corporate resolves to wind itself up, or otherwise dissolve itself, or gives notice of intention to do so, except to reconstruct or amalgamate while solvent or is otherwise wound up or dissolved. (3) A body corporate is or states that it is insolvent. (4) As a result of the operation of section 459F(1) of the Corporations Act 2001 (Cth) (Corporations Act), a body corporate is taken to have failed to comply with a statutory demand. (5) A person becomes bankrupt, or insolvent under administration as defined in section 9 of the Corporations Act or action is taken which could result in that event. (6) A receiver, manager or receiver and manager, administrator or liquidator is appointed to the body corporate. (7) Anything analogous or having a substantially similar effect to any of the events specified above happens under the law of any applicable jurisdiction.
Intellectual Property	means all present and future intellectual property rights conferred by law including (without limitation): (1) patents, designs, formulas, plans, know how, inventions, processes, trade secrets, source codes, code base, programming codes, software, computer programs, databases, specifications and any other documents or materials; (2) copyright, trade mark, trade business, company names, business names, websites, URLs or email addresses; and (3) all other proprietary rights and all other intellectual property defined in Article 2 of the Convention establishing the World Intellectual Property Organisation (July 1967), including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.
Personal Information	means any information or opinion about a natural person (whether or not true), as defined in the Privacy Act 1988 (Cth), which either party deals with in connection with performing its obligations under this agreement.
Personnel	means: (1) in respect to Formitize, any officer, employee, agent or contractor of Formitize; and (2) in respect to the Client, any officer, employee, agent or contractor of the Client and all Authorised Users.
Privacy Policy	means Formitize’s privacy policy from time to time outlining how Formitize collects, uses, stores, and discloses Personal Information.
Registration Form	means an order, registration form or application (in the form determined by Formitize from time to time) specifying the particulars of the Services to be provided by Formitize to the Client.
SaaS	has the meaning ascribed to that term in clause 7.1(1).
Services	means the services that Formitize agrees to perform under this agreement (and which may include the applicable SaaS), as further particularised in a Registration Form.
Services Period	means the period during which Formitize will supply the Services to the Client as particularised in the Registration Form and includes all successive renewal periods.
Third Party Inputs	has the meaning ascribed to that term in clause 11(1).

Part 2 - Interpretational Rules

Clauses, annexures and schedules	A clause, annexure or schedule is a reference to a clause in or annexure or schedule to this document.
Variations or replacements	A document (including this document) includes any variation or replacement of it.
Reference to statutes	A statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them.
Singular includes plural	The singular includes the plural and vice versa.
Person	The word “person” includes an individual, a firm, a body corporate, a partnership, joint venture, an unincorporated body or association or any government agency.
Executors, administrators, successors	A particular person includes a reference to the person’s executors, administrators, successors, substitutes (including persons taking by novation) and assigns.
Dollars	Dollars, USD$ or AUD$ is a reference to the related lawful currency.
Calculation of time	If a period of time dates from a given day or the day of an act or event, it is to be calculated exclusive of that day.
Reference to a day	A day is to be interpreted as the period of time commencing at midnight and ending 24 hours later.
Reference to a group of persons	A group of persons or things is a reference to any two or more of them jointly and to each of them individually.
Meaning not limited	The words “include”, “including”, “for example” or “such as” are not used as, nor are they to be interpreted as, words of limitation, and, when introducing an example, do not limit the meaning of the words to which the example relates to that example or examples of a similar kind.
Next day	If an act under this document to be done by a party on or by a given day is done after 4.30pm on that day, it is taken to be done on the next day.
Next Business Day	If an event must occur on a stipulated day which is not a Business Day then the stipulated day will be taken to be the next Business Day.
Time of day	Time is a reference to Sydney time.
Headings	Headings (including those in brackets at the beginning of paragraphs) are for convenience only and do not affect the interpretation of this document.