Elevate360 Pty Ltd (hereinafter referred to as ‘Elevate360’)
ABN 61 610 021 915
Terms & Conditions of Website Services
1. THE SERVICES
These Terms & Conditions govern your engagement with Elevate360 Pty Ltd (‘Elevate360’) that provides Customers with access to:
a. Website Design and Development Services:
b. Website Hosting Services;
c. Website Maintenance Services;
d. Search Engine Optimisation (‘SEO’); and
e. Other Services that may be provided from time-to-time hereinafter referred to as the ’Services’.
Any and all Services provided by Elevate360 shall be subject to these Terms and Conditions of Service and is conditional upon your acceptance of these stated terms and conditions. Please read the following terms and conditions. Your acceptance of these terms and conditions is indicated by your payment for the Services.
Elevate360 reserves the right, at its discretion, to change or modify all or any part of these Terms and Conditions at any time. Such changes or modifications shall be effective immediately upon notice published on the www.elevate360.com.au your continued use of the Service constitutes your binding acceptance of these terms and conditions, including any changes or modifications made by Elevate360 as permitted above. If at any time these Terms and Conditions are no longer acceptable to you, you should immediately terminate your agreement to the Service in writing which must be given at least 30 days prior to cessation of Service.
These Terms and Conditions should be read in conjunction with the Service Level Agreement (‘SLA’), Quote or other documentation provided to you when your project commenced.
You understand that Elevate360 requires certain information relating to your domain name in order to publish your website to the Internet if you have Elevate360 build or makeover your existing website. It is your responsibility to provide your registry key and all Usernames and Passwords (referred to collectively as ‘Information’) to Elevate360. You understand that any delay in providing your Information to Elevate will delay the publication of your website. You also understand that you will be billed for the construction of your website, even if you do not provide your Information to Elevate360. You also understand that even if your Information is provided in a timely manner, there may be a delay in the publication of your website due to latencies in the propagation of domain name information across the Internet. You understand that these propagation latencies are outside of Elevate360’s control and Elevate360 cannot be held accountable for such delays.
You must provide accurate, complete, and current information and you agree to provide Elevate360 with an update of that information promptly should changes occur.
Access to Elevate360’s Services is available only to individuals who are at least 18 years of age or to incorporated businesses or sole traders or partnerships or trusts or associations owned or operated by individuals who are at least 18 years of age. Your right to use the Service cannot be transferred to any other person or any other entity.
Elevate360 may terminate, at its own discretion, any agreement, including without limitation any or all related information, communications, postings, Web pages, Websites or services, at any time, without notice, for any reason or no reason, including without limitation for conduct that violates local, state or federal laws or regulations or these Terms of Service, or material that Elevate360, at its sole discretion believes is harmful to others, the business of Elevate360 or other third party information or service providers. You acknowledge that the Elevate360’s Services contain information, software, photographs, graphics, keywords and other material (collectively, the “Content”) that may be protected by copyright, trademark or other proprietary rights of Elevate360 or third parties. All Content of Elevate360’s Services is copyrighted as a collective work of Elevate360 pursuant to applicable copyright law.
You agree to comply with any additional copyright notices, information, or restrictions contained in any Content available on or accessed through Elevate360’s Services. The Content is intended for the use of Elevate360 Customers. However, you may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, display, or in any way exploit, any of the Content, in whole or in part, except as otherwise expressly permitted in these terms and conditions. Content consisting of downloadable software may not be reverse engineered unless specifically authorised by the owner of the software’s patent and/or copyright. Except as expressly permitted by the copyright laws, no copying, storage, redistribution or publication of any Content is permitted without the express permission of Elevate360 or the owners of such Content or their authorised persons.
4. USER CONDUCT
You, understand that all information contained in your content, whether publicly posted or privately transmitted, are the sole responsibility of the user generating the same. This means that you are responsible and may be held legally liable for all Information that you upload, post or otherwise transmit via Elevate360’s Services. For example, you shall not:
a. transmit upload or post any information that is offensive, vulgar, sexually explicit, racial, hateful, discriminatory, unlawful, invasive of another’s privacy, exploitative of a minor, identifiable information pertaining to a minor, information or instructions concerning illegal activities, information that is harmful, threatening, abusive, harassing, defamatory, libellous, obscene, or otherwise objectionable;
b. harass, threaten, abuse, defame, embarrass or cause distress or discomfort to another;
c. transmit upload or post any information that you are prohibited from transmitting by any law, including without limitation Information that infringes any patent, trademark, trade secret, copyright or other proprietary right;
d. transmit, upload or post any Information that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
e. disrupt the normal flow of information available on or through Elevate360’s Services or otherwise act in a manner that negatively affects other participants or users, transmit, upload or post hidden pages or images, interfere with or disrupt the functionality of Elevate360’s Services or the Elevate360 servers or networks, or violate any requirements, procedures, policies or regulations of networks connected to Elevate360, the Elevate360 network, servers, directories, databases and listings;
f. transmit, upload or post any unsolicited advertising, promotional materials, or any other forms of solicitation;
g. intentionally or unintentionally violate any applicable local, state, national or international law or regulation;.
h. translate, decompile, reverse engineer, disassemble, modify, copy, alter, merge into other software, exploit, reproduce, duplicate, rent, lease, sell, resell, lend, distribute, remarket or otherwise dispose of information acquired as a result of using Elevate360’s Services or any part thereof;
i. impersonate in any way, including without limitation by way of forging headers or otherwise manipulating identifiers, any person, entity, leader, Elevate360 or Elevate360 official, operator or host;
j. collect or store personal data about other users in any way or form or solicit or harvest passwords or screen names in an illegal manner or without due regard to privacy laws in force;
k. use your allocated storage space on Elevate360 servers as storage for remote loading of Information, or rent, sub-lease or transfer your allocated space on Elevate360 servers to any third party; or
l. link your Website to Information not allowed on Elevate360 servers under these Terms and Conditions of the Services.
Elevate360 does not control, actively monitor or review the information uploaded, posted, transmitted or made available on or through the Elevate360 Services and shall not be responsible for any information and does not guarantee the accuracy, integrity or quality of such information. You understand that by using Elevate360, you may be exposed to information that is offensive, indecent or objectionable. Your website content is solely your responsibility; Elevate360 will not be liable for any liability in regards to the material used on your website.
5. ACCEPTABLE USE
As a user of the Elevate360 Services, you agree to abide by Elevate360’s Acceptable Use Policy, and to be liable for any charges incurred for excess usage of the service, whether caused by yourself, or by others visiting your website, or sending email to your email account(s). Elevate360 will immediately suspend any sites that are we deem to have breached the above policy, and if any illegal activity has been found they may at their discretion contact the appropriate Law Enforcement authorities. Elevate360 will not be held liable for any content stored on our servers in directories that are controlled by users.
You the user are responsible for making sure that all of your email passwords and website passwords are kept in a secure location. Elevate360 will not set usernames and passwords to be the same thing as this breaches our security protocols. If you feel that your password has been compromised you must contact Elevate360 via email as soon as possible. Elevate360 will not be held liable for any activity that has been undertaken under an account with a compromised password.
Service Outages: whilst Elevate360 hopes there are no server outages we cannot be held responsible for any sort of software failure or hardware failure or internet connection failure. Elevate360 will also not be held liable for any loss of income due to Service Outages. Elevate360 will do its best to schedule Service Outages outside of business hours to minimise disruption to businesses.
6. INFORMATION POSTED ON ELEVATE SERVERS
By transmitting, uploading, posting or submitting any content to Elevate360 servers you
a. declare such information is not confidential, secret or proprietary information;
b. warrant that no other party has rights to the Information and that your transmission, posting, uploading or submission of the information to Elevate360 servers does not violate any copyright or other laws; and
c. irrevocably grant Elevate360, a worldwide, royalty free, non-exclusive perpetual, worldwide license to use, display, perform, distribute, modify, reproduce and publish the content in any form anywhere. You must evaluate, and bear the risk associated with, the accuracy, completeness or usefulness of any information available on or through Elevate360.
Elevate360 shall not be obligated to actively monitor, review, or otherwise control in any manner, the content users post, upload or transmit through Elevate360. However, Elevate360 reserves the right but not the obligation, in its sole discretion, to refuse or remove any information available on Elevate360 servers or through Elevate360. Without limiting the foregoing, Elevate360 shall have the right to remove any information that violates these Terms and Conditions of Service or is otherwise objectionable in Elevate360’s sole opinion. The information on Elevate360 servers may include inappropriate material. By entering into an agreement with or using Elevate360 you undertake full responsibility to:
d. determine whether the information complies with your needs and is accurate and when deemed important is confirmed in writing.
e. determine whether you have adequate legal rights to store, reproduce or otherwise use the information in any manner contemplated by you and
f. comply with any legal obligations, including without limitation obligations imposed by copyright, trade secret, defamation, indecency, online conduct and acceptable content, privacy and export laws. If you do not agree to these Terms and Conditions, do not use Elevate360.
However, Elevate360 reserves the right but not the obligation, in its sole discretion, to refuse or remove any information available through Elevate360. Without limiting the foregoing, Elevate360 shall have the right to remove any Information that violates these Terms and Conditions of Service or is otherwise objectionable in Elevate360’s sole opinion. The information on Elevate360 may include inappropriate material. By entering into an agreement with or using Elevate360 you undertake full responsibility to:
g. determine whether the information complies with your needs
h. determine whether you have adequate legal rights to store, reproduce or otherwise use the information in any manner contemplated by you and
i. comply with any legal obligations, including without limitation obligations imposed by copyright, trade secret, defamation, indecency, online conduct and acceptable content, privacy and export laws. If you do not agree to these Terms and Conditions, do not use Elevate360. Your website content is solely your responsibility, Elevate360 will not be liable for any liability in regards to the material used on your website.
7. THIRD PARTY LINKS
Some portions of the Elevate360 website available on or through Elevate360 may include links to third party sites. These links allow you to exit these websites and enter third party or other user’s websites. These links are provided only as a convenience. The linked websites are not reviewed, controlled or examined by Elevate360 and Elevate360 is not responsible for the information, advertising, products, resources or other material, of any linked site or any link contained in a linked site. The inclusion of any link does not imply endorsement of the linked site by Elevate360. In no event shall Elevate360 be liable, directly or indirectly, to anyone for any damage or loss arising from or occasioned by the creation, use or reliance, on the third parties’ websites or the information, advertising, products, resources or material accessed through these websites. Elevate360 reserves the exclusive right in its sole discretion to add, decline or remove, without warning, any icon or link to a website, from Elevate360 and Elevate360 user amended websites.
8. FEES AND PAYMENTS
You agree to pay all fees and charges incurred by you or any third party using the Services (whether or not authorised by you) at the rates in effect for the billing period in which such fees and charges are incurred, including, but not limited to applicable taxes, and charges for any products or services offered for sale through the Service by Elevate360 or by any third party.
Your right to use the Service is subject to any limits established by your credit card company if billing is through a credit card. You shall be responsible for obtaining all telephone, telephone access lines, computer equipment and other products or services necessary to access and use the Service. You shall be responsible for all charges associated with accessing and maintaining a connection to the Service (e.g. charges imposed by an Internet access provider, or your local telephone company). Ongoing hosting and Search Engine Marketing fees (including costs associated with Elevate360 maintaining your Google AdWords Search Marketing account) will continue automatically, at the end of your subscription until such time as we receive a cancellation in accordance with our Cancellations Policy.
Elevate360 may provide you with website and website Search Engine Optimisation. The subscription amount is the amount agreed to at the time of sale. Elevate360 works closely with you to identify realistic goals and timelines and design an appropriate website. If objectives are not met, we will offer to make it right within 20 days from go-live date. Elevate360 will not provide you with the login details until such time as the website has been approved and signed off to go live. If your instalment payment has not been made, as per your payment terms, your account will be suspended until payment has been received. If there is no payment after 90 days for an instalment, as per the payment terms, the account will be cancelled and the account will not be subject to any form of a refund.
9. CANCELLATIONS POLICY
Notification of intention to cancel Services must be provided in writing or by email by giving 30 days notice.
If your website hosting account is cancelled prior to the end of each annual term, but after your website is built you will not be entitled to a refund of any monies. You are responsible for all charges incurred up to the time the account is terminated, including all annual charges for the year in which termination became effective.
Elevate360 reserves the right, at its sole discretion, to restrict, suspend or terminate your access to all or any part of the Service at any time for any reason without prior notice or liability. Elevate360 may change, suspend or discontinue all or any aspect of the Service at any time, including the availability of any Service feature, database, or content, without prior notice or liability.
10. DISCLAIMER OF WARRANTIES
You expressly agree that entering or using of Elevate360’s Services is at your own risk. No warranty, representation, condition, undertaking or term – express or implied, statutory or otherwise – including but not limited to the condition, quality, durability, performance, accuracy, reliability, non-infringement, merchantability, or fitness for a particular purpose or use of Elevate360 is given or assumed by all such warranties, representations, conditions, undertakings and terms are hereby excluded.
Elevate360 makes no warranty that Elevate360 will meet your requirements, or that Elevate360 will be uninterrupted, timely, secure, or error free; Elevate360 makes no representations as to the suitability of the information available on or through Elevate360, including but not limited to user amended sites, for any purpose nor about its legitimacy, legality, validity, accuracy, correctness, reliability, quality, stability, completeness or currency.
Elevate360 makes no warranty that a will generate any increase in sales, business activity, profits or any other form of improvement for your business or any other purpose, Elevate360 makes no warranty that a Website will lead to any clicks to your business or other information.
Elevate360 makes no warranty that a Website will lead to consistent exposure of your business or your key words during your subscription period (including but not limited to, the position your advertisement is placed on a search result page or the frequency and time of day that your advertisement is displayed).
All such information on the user-amended sites is provided by the users. The information available on or through Elevate360 user amended sites is not reviewed, controlled or examined by Elevate360 in any way before it appears on Elevate360. Elevate360 does not endorse, verify or otherwise certify the contents of any such information.
Users are solely responsible for the contents of their websites and their AdWords advertisement content and may be held legally liable or accountable for the contents of their websites (including without limitation in connection with infringement of intellectual property rights of any other party).
Elevate360 abides by the guidelines of Google AdWords Search Marketing, key terms or adverts requested by the customer must also abide by these guidelines. The packages are sold on the terms of key terms being a key term and location, hence key terms on their own without a location may require a higher subscription or an increase in the customer’s current package. Elevate360 is not responsible for the increase of any key terms cost per click, hence if your subscription amount can no longer cater for the key terms, they will be removed from your list of key terms. Elevate360 does not warrant or guarantee:
a. that any information available on or through Elevate360’s Services will be free of infection by viruses, worms, trojan horses or anything else manifesting contaminating or destructive properties;
b. that the information available on or through Elevate360’s Services will not contain adult-oriented material, or material which some individuals may deem objectionable; or
c. that the functions or services performed by Elevate360 will be uninterrupted or error-free or that defects in Elevate360’s Services will be corrected. It is the sole responsibility of the user to isolate software and information, execute anti-contamination software and otherwise take steps to ensure that software or information, if contaminated or infected, will not damage user’s information or system.
11. LIMITATION OF LIABILITY
In no event shall Elevate360 be liable to any party for any damages, including without limitation any direct, indirect, special, punitive, incidental or consequential damages (including, but not limited to, damages for loss of business profits, business interruption, loss of programs or information, loss of profits or goodwill or loss of use of facilities or equipment), or any other damages arising – in any way, shape or form – out of the availability, use, reliance on, inability to utilise or improper use of Elevate360’s Services even if Elevate360 shall have been advised of the possibility of such damages or is negligent, and regardless of the form of action, whether in contract, tort, or otherwise.
Because some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, the above exclusions of incidental and consequential damages may not apply to you. In no event shall Elevate360 be liable to any party for any delays, inaccuracies, errors or omissions with respect to Elevate360 or the information or the transmission or delivery of all or any part thereof, for any damage arising there from or occasioned thereby, or for the results obtained from the use of information available on or through Elevate360’s Services. You expressly agree that Elevate360 shall not be responsible or liable for any loss of data, nor shall Elevate360 be required to return any lost data, resulting from the suspension or deletion of user websites or websites, network or system outages, file corruption or any other reasons.
Elevate360 urges you to maintain backup versions of your website’s content to guard against losses of any kind. You expressly agree that Elevate360 shall not be liable for any conduct by users of Elevate360 and shall not be responsible or liable for the accuracy, usefulness or availability of any information transmitted, uploaded, posted or made available on or through Elevate360’s Services.
You expressly agree to indemnify and hold harmless Elevate360, its subsidiaries, affiliates, officers, agents, co-branders and other partners, and its and their respective employees, from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys’ fees and disbursements and court costs) arising from or in connection with your information, your use of Elevate360’s Services, your violation of these Terms and Conditions of Service or your violation of any rights of any third party.
12. DEBTOR POLICY
Default & Consequences of Default
Interest on overdue invoices may accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% per calendar month and shall accrue at such a rate after as well as before any judgement.
If the Buyer defaults in payment of any invoice when due, the Buyer shall indemnify the Seller from and against the Seller’s costs and disbursements including on a solicitor and own client basis and in addition all costs of collection.
Without prejudice to any other remedies the Seller may have, if at any time the Buyer is in breach of any obligation (including those relating to payment), the Seller may suspend or terminate the supply of Goods to the Buyer and any of its other obligations under the terms and conditions. The Seller will not be liable to the Buyer for any loss or damage the Buyer suffers because the Seller exercised its rights under this clause.
If any account remains unpaid at the end of the second month after supply of the goods or services the following shall apply: The Service shall cease, unless other arrangements have been made to settle any amounts outstanding.
In the event that:
a. any money payable to the Seller becomes overdue, or in the Seller’s opinion the Buyer will be unable to meet its payments as they fall due; or
b. the Buyer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
c. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Buyer or any asset of the Buyer; then
d. the Seller shall be entitled to cancel all or any part of any order of the Buyer which remains unperformed in addition to and without prejudice to any other remedies; and
e. all amounts owing to the Seller shall, whether or not due the Seller arising out of these terms and conditions, and the Seller may take any lawful steps to require payment of the amounts due and the Price.
f. The Seller can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Buyer.
Privacy Act 1988
The Buyer and/or the Guarantor/s agree for the Seller to obtain from a credit-reporting agency a credit report containing personal credit information about the Buyer and Guarantor/s in relation to credit provided by the Seller.
The Buyer and/or the Guarantor/s agree that the Seller may exchange information about Buyer and Guarantor/s with those credit providers named in the Application for Credit account or named in a consumer credit report issued by a reporting agency for the following purposes:
To assess an application by Buyer;
To notify other credit providers of a default by the Buyer;
To exchange information with other credit providers as to the status of this credit account, where the Buyer is in default with other credit providers; and
To assess the credit worthiness of Buyer and/or Guarantor/s.
The Buyer consents to the Seller being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
The Buyer agrees that Personal Data provided may be used and retained by the Seller for the following purposes and for other purposes as shall be agreed between the Buyer and Seller or required by law from time to time:
a. provision of Services & Goods;
b. marketing of Services and or Goods by the Seller, its agents or distributors in relation to the Services and Goods;
c. analysing, verifying and/or checking the Buyer’s credit, payment and/or status in relation to provision of Services/Goods;
d. processing of any payment instructions, direct debit facilities and/or credit facilities requested by Buyer; and
e. enabling the daily operation of Buyer’s account and/or the collection of amounts outstanding in the Buyer’s account in relation to the Services and Goods.
The Seller may give, information about the Buyer to a credit reporting agency for the following purposes:
f. to obtain a consumer credit report about the Buyer; and or
g. allow the credit reporting agency to create or maintain a credit information file containing information about the Buyer.
Elevate360 reserves the right in its sole discretion to:
a. make improvements, corrections, adaptations, conversions and/or any other change to Elevate360’s Services and to any part thereof and/or to revise or modify these Terms and Conditions of Service;
b. change, limit, terminate, remove or cease to provide at any time, temporarily or permanently, Elevate360’s Services or any part thereof, to all users or any number thereof including without limitation the use of or access to Elevate360’s Services, granted to you or to any other user, at any time, without notice, for any reason or no reason;
c. refrain from publishing on this site and delete or remove from Elevate360’s Services, at its sole discretion, any Web page or information or material provided for display, posted, uploaded or transmitted by any user or any part thereof;
d. establish a new operating and usage policy for Elevate360’s Services and change it at any time for any reason or no reason; and
e. cancel, change, hold, de-list, introduce different options and features to different users or refrain from publishing any other details of the users using Elevate360’s Services, at any time.
These Terms and Conditions of Service do not grant to you or any other user any license or right in or to any patent, copyright, trademark, trade secret or other proprietary rights of Elevate360. Elevate360 may revise or replace these Terms and Conditions of Service from time to time. You agree that your use of Elevate360’s Services, beyond a period of 15 days after a notice of such change has been provided on the Elevate360 network or Website for the first time, shall constitute your consent to the new or revised Elevate360 Terms and Conditions of Service. Any reference made in this document to Elevate360’s Services shall be deemed to have been made to Elevate360’s Services, its suppliers, co-branders and licensors and each of their subsidiaries, successors, assignees, affiliates as well as any company that controls Elevate360’s Services, directly or indirectly, and any other subsidiary of that controlling company.
a. Elevate360 reserves the right, at its discretion to change or modify all or any part the terms and conditions at any time which change will be effective at the expiration of 24 hours from the time notice is given by publishing the changes on the Elevate360 website.
b. The Customer’s continued use of the services is binding acceptance of these terms and conditions and any changes thereto.
c. Each party agrees to keep in confidence and prevent the unauthorised use or disclosure to any unauthorised person or persons of all confidential information which is received under this agreement and to use such data only for the above stated purpose.
d. Where liability cannot be legally excluded, the liability of Elevate360 shall be limited to the cost of supplying the service again.
e. The Customer agrees to indemnify Elevate360 for any third party claim for damages arising out of or in any way connected with the supply of services by Elevate360 to the Customer, including without limitation any direct, indirect, special, punitive, incidental or consequential damages (including but not limited to damages for loss of business profits, business interruption, loss of programs or information, loss of profits or goodwill or loss of use of facilities or equipment), or any other damages arising whether arising from the negligence of Elevate360 or otherwise.
f. The Customer expressly agrees to indemnify and hold harmless Elevate360, its subsidiaries, affiliates, officers, agents and other partners and its and their respective employees from and against all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys fees and disbursements and court costs) arising from or in connection with the Customer’s information, the Customer’s use of Elevate360 services.
16. Fees and Payments
a. Elevate360’s invoicing schedule is as outlined in the Customer proposal, Quote and/or Service Level Agreement.
b. Elevate360 reserves the right to change its fees and fee structures upon providing 30 days written notice.
c. There are no refunds available on services by Elevate360 unless explicity advised in a quote.
a. Elevate360s monthly agreements require 45 days cancellation notice. The Customer may cancel the agreement at any time during the month prior to the final month. Outstanding payments due are immediately payable, unless otherwise stipulated in the Customer proposal or Quote. Unless otherwise agreed in writing, release of passwords, source codes and any other access data is subject to all outstanding Customer invoices being paid.
a. The Customer agrees that the Customer’s personal data may be used and retained by Elevate360 for the following purposes:
a.i. provision of good & services
a.ii. marketing of good & services
a.iii. processing any payment instructions
19. Intellectual Property
a. Notwithstanding that search engine optimization services may have terminated or expired, each party agrees to keep in all intellectual property in all inventions, strategies, know-how, methodologies and other property created, generated, expanded, added to or modified by the Elevate360 (alone or with any other person(s)) whilst carrying out the duties associated with provision of the service are the sole property of Elevate360.
a. Notwithstanding that this Agreement shall have terminated or expired, each party agrees to keep in confidence and prevent the unauthorized use or disclosure to any unauthorized person or persons of all Confidential Information which is received under this Agreement and to use such data only for the above stated purpose.
b. Confidential Information shall include information disclosed orally only if identified as proprietary information at the time of the first oral disclosure and reduced to writing and so designated within thirty (30) days thereof. Neither party shall be liable for use or disclosure of any such Confidential Information if the same:
b.i. Is in the public domain at the time it is disclosed; or
b.ii. Is known to the receiving party at the time of disclosure; or
b.iii. Is used or disclosed with the prior, written approval of the disclosing party; or
b.iv. Is used or disclosed after five (5) years from the date it was first disclosed by the disclosing party to the other party pursuant to this Agreement; or
b.v. Is independently developed by the receiving party; or
b.vi. Becomes known to the receiving party from a source other than the disclosing party without a breach of this Agreement by the receiving party.
c. In maintaining the confidentiality of confidential Information received hereunder, each party shall exercise the same degree of care that the receiving party takes to safeguard its own proprietary information.
d. These Terms and Conditions shall be governed by, performed under, and construed in accordance with the laws but not the conflict of law provisions of the State of New South Wales.