PV SELL SOFTWARE AND SYSTEM USER LICENCE AGREEMENT
These terms of service (the “Agreement”) is an Agreement between you (the “Client”, "you", or "your") and Sunwiz Pty Ltd ACN 147 976 252 ("Sunwiz", "we", "us", or "our"). This Agreement explains our obligations to you, and your obligations to us. This Agreement is the entire Agreement between us, and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing. Sunwiz may vary the terms of this Agreement upon notice to you. By clicking on the “I Accept" button below, you agree to the terms of this Agreement. If you do not wish to accept the terms of this Agreement, you must not click “I Accept” and you may not use the Goods and Services.
In this Agreement, unless the contrary intention appears: (a) clause headings are for ease of reference only and will not be relevant to interpretation; (b) words in the singular number include the plural and vice versa; (c) words importing a gender include any other gender; (d) a reference to a person includes bodies corporate and unincorporated associations and partnerships; (e) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings; (f) monetary references are references to Australian currency, unless otherwise stated; (g) "Business Day" means 9.00am to 5.00pm on a day other than Saturday, Sunday or public holiday in New South Wales, Australia; (h) "Intellectual Property Rights" means all intellectual property rights, whether registered or unregistered anywhere in the world, including patents, copyright, rights in circuit layouts, registered designs, trademarks and the right to have confidential information kept confidential, and any application or right to apply for registration of any of those rights; and (i) includes means includes without limitation.
This Agreement will commence on the date that it is accepted by the Client clicking the "I Accept" button below ("Commencement Date") and, unless terminated in accordance with the Agreement, continues:
- month to month (during which Sunwiz may vary these terms and conditions, including any Goods and Services Fees, to take effect from the following month) unless terminated by you upon giving Sunwiz at least fourteen (14) days written notice prior to the end of the then current month; or
- for a twelve (12) month period, that automatically renews for further twelve (12) month periods (at which time Sunwiz may vary these terms and conditions including any Goods and Services Fees), unless terminated by you upon giving Sunwiz ninety (90) days written notice prior to the end of the then current twelve (12) month period,
as selected by you in accepting this Agreement ("Term").
3. GOODS AND SERVICES
Sunwiz provides to the Client, via its website at http://www.pvsell.com.au ("Site"):
- access to tools using Sunwiz's PVsell software, including printed, online, audiovisual and electronic documentation, templates and spreadsheets ("Sunwiz Materials"); and
- other goods and services made available from time to time ("Pay-As-You-Go Items"),
to help the Client generate solar energy data outputs, forecasts and predictions in the form of reports, charts, graphs, and other outputs related to the Pay-As-You-Go Items ("Outputs"), that the Client may use for itself or its customers ("Customers"), collectively referred to as the “Goods and Services”.
The Goods and Services are accessed and provided using a Site account created for the Client ("Account") and must only be accessed by the holder of a valid username, password or other security credentials provided to the Client ("Access Credentials").
4. GOODS AND SERVICES INPUTS AND OUTPUTS
4.1. During the Term, the Outputs generated by the Client's use of the Goods and Services will be available for use by Client in accordance with this Agreement. Sunwiz will do all things reasonably necessary to maximise the accuracy and efficiency of the Goods and Services, including the Outputs, but Sunwiz does not guarantee that the Goods and Services, or any Outputs, will be uninterrupted or error free. Accordingly, the Client acknowledges and agrees that the Goods and Services operate and generate Outputs based on a number of assumptions and limitations, including:
- the accuracy, completeness or reliability of the Goods and Services, including any Outputs, may be based on the accuracy, completeness or reliability of the data provided by the Client and its Customers ("Inputs"), and the Customer is solely responsible for such Inputs;
- the Goods and Services may utilise automatic data processing and analysis technologies which rely on heuristics (or other similar techniques) and/or relevant historical data or averages and make no promises about absolute historical accuracy or future weather patterns;
- he accuracy and efficiency of the Goods and Services, including Outputs, may vary or be affected by variables beyond Sunwiz's knowledge or control;
- the Goods and Services may be designed to be a tool to assist the Client in its business dealings with its Customers and are not designed to be used in isolation, therefore the Client must also employ its own techniques, for collecting, analysing and verifying Inputs and Outputs, independent of the Goods and Services;
- the Client is solely responsible for determining whether the Goods and Services are correct and fit for the purposes of its Customers;
- Sunwiz is under no obligation to verify the accuracy of the Goods and Services, including any Inputs or Outputs;
- the Goods and Services may, if directed to do so by the Client, undertake inspection, data analysis and processing of information of Inputs about the businesses of the Client's Customers, therefore the Client has sole responsibility for ensuring that it has provided all notice to, and secured all consents from, its Customers necessary or desirable to provide such Inputs to Sunwiz and permit the Goods and Services to perform such inspection, data analysis and processing;
- the Goods and Services may provide certain calculations and analysis in its Outputs, which may include pre and post-tax analysis. These are based on the Inputs and stated assumptions. The Goods and Services are not intended for the purpose of providing financial or tax advice and the Client must seek its own advice;
- the Client must make its own determinations and take its own precautions about whether its role involves the provision of financial advice and the legal and regulatory implications of such, and should inform its Customers about the need for obtaining independent financial, accounting or investment advice; and
- the Client is solely responsible for informing recipients of the Outputs of any applicable assumptions and limitations (including those above, to the extent applicable in any given context) and for advising its Customers of the uncertainty in relation to forecasts, predictions and other analyses.
5. CLIENT OBLIGATIONS
5.1. The Client must:
- maintain its own facilities, such as terminal, hardware, software, modem, internet and telecommunication facilities ("Facilities") required to access and use the Goods and Services; and
- access and use the Goods and Services in compliance with all applicable laws, regulations and standards.
5.2. The Client agrees that the Goods and Services must only be accessed by the holder of valid Access Credentials, and that:
- the Client is solely responsible for maintaining the confidentiality and security of Access Credentials;
- the Client must immediately notify Sunwiz if the Client suspects or is aware that the confidentiality or security of any Access Credentials have been compromised;
- the Client is solely responsible for ensuring that any person to whom it provides Access Credentials complies with the terms of this Agreement; and
- Sunwiz may suspend or cancel any Access Credentials if Sunwiz suspects for any reason that the confidentiality or integrity of those Access Credentials have been compromised, and Sunwiz will have no liability to Customer or any other person arising from such suspension or cancellation.
5.3. The Client must not (whether directly or through any third party) deliberately disrupt or interfere with
- the supply of any Goods and Services to any other client of Sunwiz; or
- the Site, or any computer network, system or infrastructure that affects the supply of Goods and Services to any person.
6. OBLIGATIONS OF SUNWIZ
6.1. During the Term of this Agreement, Sunwiz will provide the Goods and Services:
- in accordance with the relevant Goods and Services selected by the Client;
- with due care and skill; and
- in compliance with all applicable laws, regulations, standards, awards and agreements that affect the Goods and Services in the jurisdiction in which the Client ordinarily conducts its business.
6.2. Sunwiz does not guarantee that the Goods and Services will be constantly available or error free but Sunwiz will make reasonable commercial efforts to make the Goods and Services available for use by the Client at all times. Sunwiz will not be responsible for the Goods and Services not being available in circumstances where:
- scheduled or emergency maintenance is necessary or desirable to improve, maintain, protect or secure some or all of the Goods and Services;
- any event beyond the reasonable control of Sunwiz disrupts the availability of Goods and Services, including without limitation any interruption to any third party service used by Sunwiz in the supply of Goods and Services; or
- there is a deficiency or failure in the Facilities.
6.3. Sunwiz will endeavour to provide the Client with notice prior to conducting scheduled maintenance, however Sunwiz may perform emergency maintenance at any time without notice and will make best efforts to minimise the duration of the emergency maintenance.
6.4. Sunwiz provides telephone support regarding the Goods and Services to the Client between 9am and 5pm on Business Days. Unless otherwise agreed by Sunwiz, the support provided by Sunwiz under this clause does not include:
- correction of errors or defects caused by the use of the Goods and Services in a manner other than that specified in this Agreement;
- correction of errors or defects caused by modifications, revision, variation, translation, alteration or incorrect use of the Goods and Services not authorised by Sunwiz;
- correction of errors caused in whole or in part by the use of the Client's Facilities including any fault or failure in the Client's facilities or other computer programs;
- correction of errors caused by the failure of the Client to provide suitably qualified and adequately trained operating and programming staff for using the Goods and Services;
- training the Client's operating or programming staff;
- rectification of operator errors;
- equipment maintenance or maintenance of accessories, attachments, supplies, consumables or associated items, whether or not manufactured or distributed by Sunwiz;
- diagnosis or rectification of faults not associated with the Services;
- providing or maintenance of accessories, attachments, supplies, consumables or associated items, whether or not manufactured or distributed by Sunwiz; or
- correction of errors or defects which are the subject of a warranty under another agreement.
7. GOODS AND SERVICES FEE AND PAYMENT
7.1. From the Commencement Date, Sunwiz will charge the Client the applicable fee for the Goods and Services in accordance with the Term and fees selected by the Client at the time of the Commencement Date, which may be a monthly fee ("Monthly Fee") or an upfront twelve (12) month fee ("Upfront Fee") and may include fees for any additional customers ("Additional Customer Fee") and Sunwiz will also charge the Client fees for Pay-As-You-Go-Items purchased by the Client ("As-You-Go-Fee") (collectively referred to as the "Goods and Services Fee").
7.2. Sunwiz will process payment of:
- a Monthly Fee, monthly in advance from the Commencement Date together with any Additional Customer Fee from the previous month (if any); or
- an Upfront Fee, in advance every twelve (12) months from the Commencement Date, and any Additional Customer Fee processed monthly in arrears (if any);
using the credit card details you provide. Sunwiz may pro rate the Goods and Services Fee in a month to align payment dates with its own accounting period.
7.3. Sunwiz will process payment of an As-You-Go-Fee at the time of purchase, using:
- the credit card details you provide; and/or
- funds in your Wallet to the extent any are available,
7.4. Sunwiz will provide you with an invoice of your Monthly Fee, Upfront Fee, and Additional Customer Fee prior to the processing of such fees and will also provide you with a receipt following the successful processing of those fees. Sunwiz will provide you with an invoice of your As-You-Go-Fee after processing of such fees and will also provide you with a receipt following the successful processing of those fees.
7.5. If for whatever reason, the processing of your Goods and Services Fee fails, we will notify you of such failure and you must arrange payment of your Goods and Services Fee within ten (10) days of receiving notice from us under this clause.
7.6. The Goods and Services Fee and any additional costs are exclusive of all taxes (including consumption taxes such as value added tax or goods and services tax), duties and other charges imposed or levied by any authority in connection with the Goods and Services ("Tax") and Customer must pay any such Taxes applied to any invoice, or otherwise upon request.
7.7. If you dispute the whole or any portion of an amount claimed in an invoice issued by Sunwiz, you will pay the portion of the amount stated in the invoice which is not in dispute and will notify Sunwiz in writing (within seven (7) days of receipt of the invoice) of the reasons for disputing the remainder of the invoice. If it is resolved that some or all of the amount in dispute ought properly to have been paid at the time it was invoiced, then Sunwiz will immediately pay the amount finally resolved.
7.8. If this Agreement is terminated or suspended by Sunwiz under clauses 13.1 or 13.4, then you will not be entitled to a refund of any Goods and Services Fee paid or any funds in your Wallet.
8.1 Sunwiz may from time to time give the Client an option to add funds to the Client's Account ("Wallet"). Funds may be added to the Wallet by credit card, debit card, promotional codes, or by any other method accepted by Sunwiz at its absolute discretion.
8.2 Funds added to a Client's Wallet:
- can be used by the Client to pay As-You-Go-Fees applicable to Pay-As-You-Go Items;
- are not refundable, transferable, or redeemable for cash;
- are valid to the later of:
- 36 months from the date it is added to the Wallet;
- 36 months after the Client ceases to hold an active Account; or
- any other expiry date notified by Sunwiz to, and agreed by, the Client when the funds are added to the Wallet; and
- any other period of time required by applicable law,
- may be subject to other terms and conditions specified by Sunwiz and agreed by the Client at the time the funds were added.
8.3 Sunwiz will not accept, and may refuse or cancel, any funds in a Client's Wallet that it believes has been used or obtained in breach of this Agreement, has been tampered with, or are otherwise fraudulent, and Sunwiz reserves the right to refer any suspected fraudulent activity to relevant law enforcement authorities.
8.4 Sunwiz may from time to time set a limit on the amount of funds that can be stored in a Wallet at a point in time. Attempts to deposit funds in the Wallet such that the limit would be exceeded may not be processed.
9. INTELLECTUAL PROPERTY RIGHTS AND LICENCE TO USE
1.5. All Intellectual Property Rights in any Sunwiz Material and Pay-As-You-Go Items, including:
- material that was or is created, written or otherwise brought into existence by or on behalf of Sunwiz in the course of, or in connection with, the supply of Goods and Services;
- material used by Sunwiz in the course of supplying Goods and Services in which Sunwiz owns or is licensed to use Intellectual Property Rights;
- material developed by or on behalf of Sunwiz independently of this Agreement; or
- any adaptation, modification enhancements or updates to any of the above,
are the exclusive property of Sunwiz or its licensors and nothing in this Agreement assigns or vests any Intellectual Property Rights in Sunwiz Material or and Pay-As-You-Go Items to the Client or any other person (excluding any Client Material as defined in clause 9.5)..
1.6 Subject to payment of the Goods and Services Fee, Sunwiz grants a non-exclusive licence to the Client to use the Goods and Services, including all relevant Sunwiz Material, Pay-As-You-Go Items, and Access Credentials, for Customer's internal business purposes within the jurisdiction in which Customer ordinarily conducts its business, for the Term. Except to the extent permitted by clauses 9.3 and 9.4, the Client may not sub-licence or transfer any of these rights without Sunwiz’s prior written consent, and the Client acknowledges and agrees that Sunwiz may immediately terminate the Goods and Services, including the licence, without liability if any unauthorised sub-license or transfer of this licence is made or attempted to be made.
9.1 The Client is entitled to sub-licence its rights under clause 9.2 to:
- its related companies (being companies either wholly owned by the Client, or having the same ultimate parent company as the Client); or
- any other person explicitly authorised by Sunwiz in writing.
9.2 Subject to this Agreement (including clause 5), the Client may download and provide copies of Sunwiz Materials and Pay-As-You-Go Items containing any Outputs to its relevant Customer, as necessary to do so for the Client's business purposes. Any copies of material provided to third parties as permitted under this clause, becomes the Client's internal working document for which the Client remains responsible, and the Client may alter, amend or provide such material its Customer's, or other third parties, provided that it does not contain any reference to Sunwiz or its business (including the Goods and Services, PVsell, the Site or any logos).
9.3 Any Intellectual Property Rights arising from, or vested in, any material that the Client supplies to Sunwiz, including any Inputs and data generated in any Outputs ("Client Data") from the Client’s use of Goods and Services (collectively the "Client Material"), are the exclusive property of the Client or its licensors and nothing in this Agreement assigns or vests any Intellectual Property Rights in Client Material to Sunwiz or any other person.
9.4 The Client grants to Sunwiz a non-exclusive worldwide licence to use, reproduce, modify and adapt Client Material during the Term of this Agreement for the purpose of, and to the extent necessary for, the supply of Goods and Services. In addition, the Client agrees that Sunwiz may access and use Client Data for the purposes of conducting, preparing and disseminating to third parties (including by reports for the benefits of other clients) and analysis of the data of its clients and the market in which the Client operates, provided that in doing so the Client is not identified.
9.5 Subject to clauses 9.8 and 9.9, each party will indemnify the other party against liability under any final judgement or settlement in proceedings brought by a third party against the other party ("Indemnitee") which determine that the Indemnitee's use of either the Goods and Services, Sunwiz Material, Pay-As-You-Go Items, or Client Material (as applicable) is an infringement in a relevant jurisdiction of any of the third party’s Intellectual Property Rights.
9.6 The indemnifying party will not be required to indemnify the Indemnitee as provided in clause 9.7 unless the Indemnitee:
- notifies the indemnifying party in writing as soon as practical of any infringement, suspected infringement or claim alleging infringement;
- gives the indemnifying party complete control of the conduct of the defence of such a claim including negotiations for settlement or compromise prior to the commencement of legal proceedings;
- provides the indemnifying party with reasonable assistance in conducting the defence of such a claim; and
- permits the indemnifying party to modify, alter or substitute the infringing part of the Goods and Services, Sunwiz Material, Pay-As-You-Go Items, or Client Material (as applicable) at its own expense in order to avoid continuing infringement, or authorises the indemnifying party to procure for the Indemnitee the authority to continue the use of the infringing Goods and Services, Sunwiz Material, Pay-As-You-Go Items, or Client Material (as applicable).
9.7 Sunwiz will not indemnify the Client to the extent that an infringement, suspected infringement or alleged infringement arises from:
- use of software or any other goods or services provided by any third party not reasonably contemplated by or not authorised by Sunwiz;
- use of the Goods and Services in a manner or for a purpose not reasonably contemplated by or not authorised by Sunwiz;
- modification or alteration of the Goods and Services (including any part of the Sunwiz Materials or Pay-As-You-Go Items) without the prior written consent of Sunwiz;
- any transaction entered into by the Client relating to the Goods and Services without Sunwiz’s prior consent in writing; or
- a negligent act or omission of the Client (including any of its representatives) or any third party (other than one acting under the direction of Sunwiz).
10.1 Each Party, except as explicitly permitted by this clause 10, must keep confidential any information in any form whatsoever (including oral, written, and electronic information) of a personal, technical, business, corporate or financial nature of a party that has either been marked as confidential or due to its character or nature, or manner of its disclosure, a reasonable person would consider to be confidential, including details of the Client’s business, technical processes and the business of Customers' confidential information and the technologies and processing techniques of Sunwiz and the terms of this Agreement ("Confidential Information"), of the other party.
10.2. Each party may:
- use Confidential Information of the other party solely for the purposes of exercising its rights and performing its obligations under this Agreement; and
- may disclose Confidential Information of the other party only to its related companies, lawyers, auditors, insurers, accountants, employees and subcontractors who:
- are aware and agree that Confidential Information of the other party must be kept confidential; and
- either has a need to know (and only to the extent that each has a need to know), or have been specifically approved by the other party.
10.3. A party must promptly notify the other party upon discovery of any unauthorised access, use or disclosure of the other party’s Confidential Information and take all reasonable steps to regain possession or control of the Confidential Information and prevent further unauthorised access, use or disclosure.
10.4. A party will not be in breach of clause 10.1 in circumstances where it is compelled by the law of a relevant jurisdiction to disclose the other party’s Confidential Information.
10.5. Notwithstanding any other provision of this clause, a party may disclose matters arising from this Agreement to its related companies, lawyers, auditors, insurers and accountants.
10.6. Upon termination of this Agreement a party must, as directed by the other party, either return to the other party and/or destroy, all of that party’s Confidential Information (including all copies/derivatives of such Confidential Information).
10.7. Each party may retain 1 archival copy of the other party’s Confidential Information for regulatory and internal audit compliance purposes, provided that the obligations of confidentiality specified in this Agreement will continue to apply to that archival copy.
10.8 Each party acknowledges that the other party may suffer financial and other loss and damage if any unauthorised act occurs in relation to Confidential Information, and that monetary damages would be an insufficient remedy and in addition to any other remedy available at law or in equity, the other party is entitled to injunctive relief to prevent a breach of, and to compel specific performance of, this clause 10.
11. WARRANTIES AND REPRESENTATIONS
11.1. Except as expressly provided in this Agreement, Sunwiz excludes from this Agreement all representations, conditions, warranties, and terms implied by statute, general law or custom, except any implied condition or warranty the exclusion of which from a contract would contravene any statute of any relevant jurisdiction or cause any part of this Agreement to be void ("Non-excludable Condition").
11.2. Each party warrants that:
- it must not use, or knowingly allow another person to use, any part of the Goods and Services in a manner contrary to any law of a relevant jurisdiction; and
- it must comply with all applicable laws, regulations and legal obligations.
12. LIABILITY AND INDEMNITY
12.1. Except for liability in relation to breach of any Non-excludable Condition and liability under clause 12.3, Sunwiz’s total aggregate liability to the Client in contract, including for one or more breaches of any term of this Agreement, tort (including in negligence), statute, or otherwise, is limited to an amount equal to the total amount actually paid by the Client to Sunwiz under this Agreement during the twelve (12) month period before the first liability arose.
12.2. Sunwiz’s total liability to the Client for a breach of any Non-excludable Condition (other than a Non-excludable Condition in respect of which, by law, liability cannot be limited) is limited, at Sunwiz's option to any one of resupplying, replacing or repairing, or paying the cost of resupplying, replacing or repairing the goods in respect of which the breach occurred, or supplying again or paying the cost of supplying again, the Goods and Services in respect of which the breach occurred.
12.3. Except for liability in relation to breach of any Non-excludable Condition Sunwiz excludes all liability to the Customer for lost profits, lost revenue, lost savings, lost business, loss of opportunity, lost data or any consequential or indirect loss arising out of, or in connection with, any Goods and Services, and any claims by any third person (including any sub-licensee of the Client or any Customer), or this Agreement.
12.4. Subject to clause 11.1, the Client warrants that it has not relied on any representation made by Sunwiz which has not been stated expressly in the Agreement, or upon any descriptions, illustrations or specifications contained in any document including any proposal, catalogues or publicity material provided by Sunwiz, except and only to the extent such documents are expressly incorporated in this Agreement.
12.5. The Client indemnifies Sunwiz and its directors, officers, employees and agents from and against all losses, damages, liabilities, claims and expenses incurred (including but not limited to reasonable legal costs) arising as a result of (i) any wilful, unlawful or negligent act or omission of the Client; or (ii) any claim by any third party (including any Customer) arising out of or in any way connected with the supply of services related to the Goods and Services by the Client.
13. SUSPENSION AND TERMINATION
13.1 Without limiting the generality of any other clause in this Agreement, a party may terminate this Agreement immediately by notice in writing if:
- the other party is in breach of any term of this Agreement and such breach is not remedied within thirty (30) days of written notice requiring it to do so;
- a party becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration; or
- a party ceases or threatens to cease conducting its business in the normal manner.
13.2. Sunwiz may terminate this Agreement by giving thirty (30) days’ notice in writing to the Client. If notice is given to the Client pursuant to this clause, Sunwiz’s sole liability to the Client arising from such termination is the repayment of any Goods and Services Fees that have been paid in advance for the supply of Goods and Services after the date on which the supply of those Goods and Services is terminated.
13.3. The Client may terminate this Agreement if the Client is not satisfied with the Goods and Services by providing Sunwiz written notice within twenty eight (28) days from the Commencement Date, in which case Sunwiz will refund any Goods and Services Fees paid by the Client under this Agreement and this Agreement will terminate.
13.4. Without prejudice to its termination rights under this Agreement, Sunwiz may immediately terminate or suspend the supply of any or all Goods and Services to the Client, and the Client acknowledges and agrees that Sunwiz will have no liability to the Client (under this Agreement or otherwise) arising from such termination or suspension if:
- the Client fails to pay any correctly issued invoice by its due date; or
- Sunwiz reasonably considers such termination or suspension to be necessary to protect the security or integrity of the Goods and Services, or any software, hardware, data or network, or to comply with any law or direction of a regulator or relevant authority.
14. FORCE MAJEURE
14.1. Neither party will be liable for any delay or failure to perform its obligations pursuant to this Agreement if such delay is due to a circumstance beyond the reasonable control of the parties which results in a party being unable to observe or perform on time an obligation under this Agreement, including natural disasters, acts of war, terrorism, civil commotion, industrial action, malicious software or hardware attack or failure of third party network facilities or infrastructure ("Force Majeure").
14.2. If a delay or failure of a party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that party’s obligations will be suspended. If a delay or failure by the Party to perform its obligations due to Force Majeure exceeds sixty (60) days, either party may immediately terminate the Agreement on providing notice in writing to the other party.
15.1. Except where otherwise explicitly permitted by a clause of this Agreement, the provisions of this Agreement will not be varied, except by agreement in writing signed by each party.
16. NOTICE AND ELECTRONIC COMMUNICATION
16.1. Any notice required under this Agreement to be supplied in writing must be delivered to the other party:
- by hand, in which case the notice will be taken to be received at the time it is delivered;
- by express international courier, in which case the notice will be taken to be received ten (10) Business Days after it is sent;
- by email or other electronic means agreed between the parties from time to time, in which case the notice will be taken to be received on receipt of a return message from the recipient acknowledging delivery (which receipt must be sent immediately on receiving the notice, and must not be knowingly withheld); or
- via the Site.
16.2. The parties acknowledge that any requirement under this Agreement that a notice be given "in writing" may be satisfied by a document delivered by electronic means.
17.1. Any dispute arising in connection with this Agreement must be handled in accordance with this clause before a party may commence any form of litigation or legal proceedings.
17.2. A party must give notice in writing to the other party of the matter in dispute, and nature of the dispute. Within five (5) days of issuing such notice each party must appoint a representative with full decision making authority to negotiate on behalf of, and bind, their party to resolution of the dispute, and those representatives must discuss and seek to resolve the dispute in good faith.
17.3. If the respective representatives are unable to resolve the dispute within five (5) days of their first meeting (or other such period as is agreed between the parties), refer the dispute to the respective chief executive officers (or equivalent) of each party, within seven (7) days to discuss and seek to resolve the dispute in good faith.
17.4. If the respective chief executive officers are unable to resolve the dispute within seven (7) days of their first meeting, either party is free to commence such process, including alternative dispute resolution or litigation, as they see fit to resolve the dispute.
17.5. Nothing in this clause will prevent a party from seeking urgent equitable relief before an appropriate court.
17.6. During the continuance of any dispute, each party must continue to perform its obligations under this Agreement.
17. JOINT AND SEVERAL LIABILITY.
Where the Client comprises two or more persons, corporations or entities, this Agreement will be binding upon the Client jointly and severally.
19. ASSIGNMENT AND WAIVER
19.1. The Client may not assign or transfer part or all of this Agreement without the prior approval of Sunwiz (which must not be unreasonably withheld).
19.2. A party does not waive any right or relieve the other party of any obligation under this Agreement unless explicitly stated by the waiving party in writing.
If any provision of this Agreement is held invalid, unenforceable or illegal for any reason, the Agreement will remain otherwise in full force apart from such provisions which will be deemed deleted.
The provisions of the Agreement that are intended (expressly or by implication) to have effect after termination of the Agreement will remain in full force and effect following termination, including clauses 4, 7, 9, 10, 11, 12, 16, 17, 18, 19, 20, 21, 22.
22. GOVERNING LAW
This Agreement will be governed by and construed according to the law in the State of Victoria, Australia and each party submits unconditionally to the jurisdiction of the courts of that jurisdiction.
23. SPOOKFISH - Intellectual Property Right
This clause applies to whoever uses Spookfish, the High Definition Aerial Imagery Provider within the PVSell.
23.1 For the purposes of this clause, “Intellectual Property Rights” means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
23.2 Spookfish products and services, Spookfish website and all of the content on Spookfish website, including, but not limited to, text, graphics, data, photographic images, moving images, sound, illustrations, software, and the selection and arrangement thereof, and all associated Intellectual Property Rights, (“Materials”) are owned by Spookfish or third-party licensors. No ownership or Intellectual Property Rights in the Materials will pass to you and the Materials must not be used, other than for the purpose of displaying images of potential sites for solar power systems upon which users can perform measurements and layouts of solar panels, plus the inclusion of such images in proposal documents sent to users prospective customers or reproduced in full or in part.