1.1. eBase may make the Service available to the Subscriber from time to time during the Term on the terms and conditions of this agreement.
1.2. The Subscriber must, and must ensure that its Nominated Persons:
(a) do not use the Service on behalf of, or to provide services to, third parties;
(b) do not resupply the Data or any other material accessed through the Service to any third party; and
(c) keep the Subscriber's password to the Service secure, and ensure that no person other than the Nominated Persons to log into the Service using the Subscriber's password.
1.3. The Subscriber acknowledges nothing in this agreement is intended to give the Subscriber any Intellectual Property Rights in material accessed through the Service (including without limitation, the Data) or any other Intellectual Property Rights of eBase.
1.4. The Subscriber acknowledges and agrees that:
(a) the Data may not be error free, and eBase makes no representation and gives no warranty that the Service will contain any particular data, function in any particular way be or available at any particular time; and
(b) the Service may not be available from time to time.
1.5. The Subscriber authorises eBase to monitor the Subscriber's use of the Service and to use information relating to the Subscriber's use of the Service to market products or services to the Subscriber.
1.6. eBase makes no representation and gives no warranty that use of the Service will not infringe the Intellectual Property Rights of any third party.
1.7. If the Subscriber forms individual profiles on the Website, the Subscriber:
(a) must not list a particular individual without the permission of that individual; and
(b) acknowledges that only the Subscriber, Nominated Persons and the individual will be able to access the individual's profile.
1.8. The Subscriber must ensure that all information entered by the Supplier into the Service is complete and accurate at all times during the Term.
2.1. The Subscriber grants eBase a non-exclusive, perpetual, global, transferable licence (including the right to sublicense) to use and modify the Subscriber Material, including to provide the Subscriber Material (whether whole or in an aggregated form) to third parties.
2.2. The Subscriber represents and warrants, and it is a condition of this agreement that:
(a) the Subscriber has all necessary consents (including without limitation consents required by the Privacy Act 1988 (Cth)) to provide eBase with the Subscriber Material and for eBase to use the Subscriber Material as contemplated by clause 2.1;
(b) exercise of the rights contemplated by clause 2.1 will not infringe the Intellectual Property Rights of any third party; and
(c) the Subscriber Material will be complete and accurate.
3. Use of the Services
3.1. Prohibited conduct
The Subscriber must not, and must ensure the Nominated Persons do not:
(a) perform any illegal or unlawful acts in connection with access to or use of the Website or Service;
(b) use the Service or the Website:
(i) to engage in fraudulent behaviour;
(ii) harass any third party;
(iii) to gain unauthorised access to or interfere with any third party's online resources or systems including by any form of hacking;
(iv) to circumvent any security measures;
(v) to interfere with any third party's online resources or systems including by carrying out a denial of service attack;
(vi) to distribute, view or create any material that:
(i) is or may be pornographic, defamatory, offensive, obscene, illegal or unlawful; or
(ii) infringes any third party's Intellectual Property Rights;
(iii) in a way that infringes any third party's Intellectual Property Rights;
(iv) in a way that disrupts, misuses or excessively uses the hardware, bandwidth access, storage space or other resources of eBase or other customers of eBase who use the Service; or
(v) in any other manner that is unacceptable to eBase.
3.2. Authorised use
The Subscriber must, and must ensure that its Nominated Persons:
(a) not conduct any data mining in connection with the Service;
(b) use the Service in accordance with any acceptable use policies notified or made available on the Website by eBase to the Subscriber from time to time;
(c) not access the Service for the purpose of creating a website similar to the Website;
(d) not use the Service as a substitute for an equivalent paper-based system;
(e) not attempt to access any part of the Website that is restricted by privacy settings, or that the Subscriber is not otherwise authorised to access;
(f) not rely on the Data, and must verify the Data by reference to an independent source before making a decision on the basis of the Data;
(g) comply with all applicable laws and ensure that its employees, agents and independent contractors comply with all applicable laws when using the Service; and
(h) without limiting clause 3.2(g), not use the Service for an anticompetitive purpose in contravention of the Competition and Consumer Act 2010 (Cth).
3.3. The Subscriber acknowledges that eBase does not endorse and is not responsible for the content of any advertisements displayed on the Website.
3.4. The Subscriber must keep all material accessed through the Service confidential (including without limitation the Data) and not disclose any material accessed through the Service to a third party without the prior written consent of eBase unless required by law.
4. Term and termination
4.1. This agreement commences on the date the Subscriber first accesses the Service and continues until terminated under this clause 4.
4.2. Either party may terminate this agreement at any time for convenience by written notice to other party, and this agreement will terminate on the date specified in that notice, or if no date is specified, immediately.
4.3. eBase may suspend or terminate the Subscriber's access to the Service without notice from time to time, including without limitation if eBase suspects that the Subscriber is in breach of this agreement.
4.4. The Subscriber acknowledges that eBase may terminate this agreement under this clause 4 without considering the impact of the termination on the Subscriber.
4.5. On termination of this agreement:
(a) the Subscriber must not access the Service; and
(b) accrued rights or remedies of a party are not affected.
(c) Clauses 2 and 5 survive termination of this agreement.
5. Liability and indemnity
5.1. Subject to clauses 5.5 and 5.7 any liability of eBase for any loss or damage, however caused (including, without limitation, by the negligence of eBase), suffered by the Subscriber in connection with this agreement is limited at the election of eBase, to:
(a) $100; or
(b) if the loss or damage relates to the particular services, resupply of those services.
5.2. eBase is not liable for any loss or damage, however caused (including without limitation by the negligence of eBase) suffered by the Subscriber in connection with any inaccuracy in the Data or any advertisement on the Website.
5.3. The limitation set out in clause 5.1 is an aggregate limit for all claims, whenever made.
5.4. For clarity, and without limiting clauses 5.1 and 5.2, the parties agree that clauses 5.1 and 5.2 are to apply in connection with a breach of this agreement, anticipated breach of this agreement or other conduct regardless of the seriousness or nature of that breach, anticipated breach or other conduct.
5.5. Subject to clause 5.7, eBase is not liable for any Consequential Loss however caused (including, without limitation, by the negligence of eBase) suffered or incurred by the Subscriber in connection with this agreement.
5.6. Except as contemplated by clause 5.7, nothing in this agreement is intended to limit any rights of the Subscriber under the Competition and Consumer Act 2010 (Cth).
5.7. If the Competition and Consumer Act 2010 (Cth) or any other legislation provides that there is a guarantee in relation to any good or service supplied by eBase in connection with this agreement and eBase's liability for failing to comply with that guarantee cannot be excluded but may be limited, then clauses 1.4, 5.1, 5.5 and 5.8 do not apply to that liability and instead eBase's liability for such failure is limited to (at eBase's election):
(a) in the case of a supply of goods, eBase replacing the goods or supplying equivalent goods, repairing the goods, paying the cost of replacing the goods or of acquiring equivalent goods, or paying the cost of having the goods repaired; or
(b) in the case of a supply of services, eBase supplying the services again or paying the cost of having the services supplied again.
5.8. Subject to clause 5.6, the Subscriber is liable for, and indemnifies eBase from and against, all loss or damage (including, without limitation, legal costs) however caused suffered or incurred by eBase in connection with:
(a) any claim or allegation by a third party that exercise of the rights contemplated by clause 2.1 infringes the Intellectual Property Rights or other rights of any third party;
(b) any breach of this agreement by the Subscriber;
(c) any act or omission of the Subscriber, including, without limitation, any illegal or negligent act or omission of the Subscriber;
(d) any claim or threatened claim by a third party against eBase in connection with the use by the Subscriber of the Website or the Data;
(e) any exercise of the Subscriber's rights under this agreement; or
(f) any act or omission of the Subscriber or any person acting or purporting to act on behalf of the Subscriber.
5.9. Each indemnity contained in this agreement is a continuing obligation notwithstanding:
(a) any settlement of account; or
(b) the occurrence of any other thing,
and it is not necessary for eBase to incur expense or make payment before enforcing or making a claim under an indemnity.
6. Force Majeure
eBase will not be:
6.1. in breach of this agreement as a result of; or
6.2. liable for, any failure or delay in the performance of its obligations under this agreement to the extent that such failure or delay is wholly or partially caused, directly or indirectly, by a Force Majeure Event or any act or omission of the Subscriber.
7.1. This agreement is subject to the laws of Queensland and the Commonwealth of Australia.
7.2. The parties irrevocably submit to the non-exclusive jurisdiction of the courts of Queensland.
7.3. A notice under this agreement may be given by email.
7.4. In the interpretation of this document, no rule of construction applies to the disadvantage of the party preparing the document on the basis that it put forward this document or any part of it.
7.5. The Subscriber must not assign, in whole or in part, or novate the Subscriber's rights and obligations under this agreement without the prior written consent of eBase.
7.6. eBase may amend this agreement from time to time by making the amended terms available on the Website, in which case the Subscriber's continued use of the Service constitutes binding acceptance of the amended terms.
7.7. eBase may assign eBase's interest under this agreement.
7.8. Each provision of this agreement will be read and construed as a separate and severable provision or part and if any provision is void or otherwise unenforceable for any reason then that provision will be severed and the remainder will be read and construed as if the severable provision had never existed.
7.9. This agreement represents the parties' entire agreement, and supersedes all prior representations, communications, agreements, statements and understandings, whether oral or in writing, relating to its subject matter.
7.10. Where this agreement contemplates that eBase may consent to, elect, determine, approve, nominate, decide or consider any matter or thing, eBase may provide such consent or make such election, determination, approval, nomination, decision or consideration in its absolute discretion and conditionally or unconditionally without being required to give reasons or act reasonably unless this agreement expressly requires otherwise.