Commnia Terms of Service Agreement
Version: 1.2 (Last updated: 1 May 2025)
Commnia Pty Ltd (ABN 50 105 572 576) trading as Commnia (referred to as Commnia, we, our or us) owns the Platform which is accessible at https://commnia.com. These Terms set out the terms and conditions upon which we agree to grant, sell, or allow the use of the Services, by you, the person or entity seeking to use or purchase the Platform from us (you or your), as particularised in the Commercial Order.
DEFINITIONS
- Acceptable Usage Policy: The policy on the acceptable use of the Platform, as set out on our Website and as updated from time to time.
- Activity: The number of transactions recorded on the Platform.
- Additional Fees: The additional fees charged where data usage exceeds the limits of the PAYG Licence Subscription, as set out in the Commercial Order.
- Additional Services: Any services not included in a Subscription Type which we agree to provide to you, as set out in the Commercial Order or as otherwise agreed between the Parties.
- Archive Options: Include:
- Commnia Online Archive: $24.99 per GB annually for cold storage, $99/month for full read-only project access. Secure access at any time, scalable to your needs.
- On-Premises Archive: $170 one-time project access fee, $99 per GB for data export. Includes Dropbox-compatible archive transfer.
- Permanent Deletion: Free, irreversible deletion of project data.
- Read-Only: A service allowing users to maintain access to project information in a read-only format.
- Deletion Policy: Expired or completed projects will be permanently deleted after 60 days unless archived. To retain data, you must choose one of the archiving options before the 60-day period ends.
- Archiving Policy: The policy on the storage and access of completed or expired project data, including available archive options and timelines, as set out on our Website and as updated from time to time. The policy on the storage and access of completed or expired project data, including available archive options and timelines, as set out on our Website and as updated from time to time.
- Authorised Users: The users that have been authorised to have full access rights to the Platform, as nominated by you, the number of which are set out in the Commercial Order.
- Business Day: A day on which banks are open for general banking business in New South Wales, excluding Saturdays, Sundays, and public holidays.
- Commercial Order: A Commnia-approved order form with respect to the Services that is executed by Commnia and a Paying User.
- Confidential Information: Includes confidential information about the business, structure, programs, processes, methods, operating procedures, activities, products and services, trade secrets, know-how, financial, accounting, marketing, and technical information, customer and supplier lists (including prospective customer and supplier information), ideas, concepts, know-how, Intellectual Property, technology, and other information whether or not such information is reduced to a tangible form or marked in writing as “confidential.”
- Computing Environment: Your computing environment, including all systems, information technology, and telecommunications services.
- Data: Any information that is created when you or a Non-Paying User use the Services, such as login details, project information, User Information, and page information.
- Data Hosting Services: The data hosting services where we host your Data on our servers or third-party servers, if applicable and as set out in the Commercial Order.
- Deletion Policy: The policy on the permanent removal of data from the Platform, as set out on our Website and as updated from time to time.
- Device: Includes a computer, mobile phone, tablet, console, or other electronic device.
- Early Termination Fee: The fee payable by you to us for early termination in accordance with these Terms, unless specified in the Commercial Order, is equal to the Minimum Subscription Fee.
- Fair Use Policy: Each project is allocated a set data allowance based on its construction value. Usage beyond this allowance will incur charges. This fee applies to all cumulative data usage and supports the ongoing costs of ISO 27001 certification and infrastructure expenses.
- Fee Schedule: The fee schedule in the Commercial Order, which sets out the Fees.
- Force Majeure: Has the meaning given in clause 29.
- Intellectual Property: Includes any and all intellectual and industrial property rights throughout the world, whether subsisting now or in the future, including all copyright and analogous rights, all rights in relation to inventions (including patent rights), registered and unregistered trademarks, designs (whether or not registered or registrable), circuit layouts, trade names, trade secrets, business names, company names, or internet domain names.
- Invoice: The tax invoice we provide to you.
- Liability: Any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding, or judgment (whether under statute, contract, equity, tort (including negligence), indemnity, or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future, or contingent and whether involving a third party or a Party to this Agreement or otherwise.
- Licence Type: The type of access and functionality to the platform granted during a current Subscription and referred to as the Subscription Type in the Commercial Order. Subscription Licence Types include PAYG Licences and Project Licences.
- Minimum Subscription Fee: Unless otherwise set out in a Commercial Order, the total Subscription Fee payable by you for the duration of the Subscription Period.
- Non-Paying User: A user of the Services but not a Paying User.
- Party: A party to these Terms and Parties means all of them.
- Paying User: An entity or organisation paying for the Services.
- PAYG Licence Subscription: Provides access to the Commnia Platform for a specific amount of data and transactions tailored to a project’s stage, size, and usage. Subscription offers full access to Commnia’s features based on project usage.
- Platform: The cloud-based software, owned or licensed by Commnia and made available by Commnia, including all instructions in hard copy and electronic form and any update, modification, or release of any part of that software.
- Project: The projects that have been authorised for the Platform as set out in the Commercial Order, subject to the scope and/or any other limitations specified in such Commercial Order.
- Services: The Platform and any other associated services as set out in the Commercial Order, including Data Hosting Services, Additional Services, and the Defects and Liability Service (if applicable).
- Subscription Fee: The subscription fee payable by you for your relevant Subscription Type, as set out in the Commercial Order, and as updated in accordance with these Terms.
- Subscription Period: The subscription period that applies to your relevant Subscription Type, as set out in the Commercial Order, and as may be renewed in accordance with these Terms.
- Subscription Type: The type of subscription relevant to the type of Licence Type as set out in the Commercial Order and includes:
- PAYG Licence Subscription
- Project Licence Subscription
- Term: The period beginning on the date you accept these Terms and ending on termination or expiry of the Subscription Period, in accordance with these Terms.
- Terms: These terms and conditions and incorporates the Commercial Order, our Fair Use Policy, Privacy Policy, Deletion Policy, Acceptable Usage Policy, Website Terms of Service and other relevant documents.
ACCEPTANCE
(a) If you are a Paying User, your Services will be set out in the Commercial Order. These Terms are binding on you from the earlier of when you sign a Commercial Order or instruct us to provide the Services in the Commercial Order to you, until the termination of these Terms.
(b) These Terms form a binding legal agreement between you and Commnia, its directors, officers, employees, contractors, successors, and assignees.
(c) By accepting these Terms and/or accessing and/or using the Services, you:
(i) Warrant to us that you have reviewed these Terms (and all documents referred to in, or attached to, these Terms);
(ii) Warrant to us that you have the legal capacity to enter into a legally binding agreement;
(iii) Warrant to us that you have the authority to act on behalf of any person or entity for whom you are using the Services;
(iv) Warrant to us that you have all capabilities (including hardware, software, and services) which are necessary, or become necessary, to access and use the Services; and
(v) Agree to use the Services in accordance with these Terms.
(d) We reserve the right to make changes to these Terms at any time. If we make any material changes, we will notify you via email or within the Platform. Your continued use of the Platform following such notice will constitute your acceptance of the updated Terms. If you do not agree to the changes, you must stop using the Platform and Services and notify us in writing.
SUBSCRIPTION & LICENCE TYPES
(a) Licence Types: You are granted a non-exclusive, non-transferable right to access and use the Platform and the Services for the duration of the Term, subject to these Terms and any restrictions or limitations set out in the Commercial Order.
(b) PAYG Licence Subscription:
(i) Under the PAYG Licence Subscription, you will have access to the Platform based on the volume of data and transactions associated with your project(s), as set out in the Commercial Order.
(ii) The PAYG Licence Subscription is designed to scale with your usage, meaning that if your data or transaction volume exceeds the thresholds in your current plan, you will be automatically upgraded to the next suitable plan. Additional Fees for excess usage will be calculated and charged in accordance with the Fee Schedule.
(iii) PAYG Licences are offered on a monthly basis and are subject to renewal as set out in clause 5 of these Terms.
(c) Corporate Licence Subscription:
(i) The Corporate Licence Subscription provides access to the Platform for your entire organization, as set out in the Commercial Order, without per-project or per-transaction limits.
(ii) Corporate Licences are typically offered on an annual basis but may also be subject to other billing cycles as agreed upon in the Commercial Order.
(d) Licence Restrictions: You must not use the Platform in any manner that exceeds the scope of access granted under these Terms or the Commercial Order. You agree to comply with the Acceptable Usage Policy when using the Platform.
(e) Additional Services: Any services outside the scope of the Subscription Type may incur Additional Fees. These Additional Services will be provided as agreed in writing by both Parties.
PAYMENT TERMS
(a) Fees and Payments: You agree to pay all Fees specified in the Commercial Order. All amounts are in Australian dollars unless otherwise agreed in writing. Fees are exclusive of taxes (including GST), which will be added where applicable.
(b) Invoicing and Due Date Invoices will be issued according to the schedule in the Commercial Order (upfront, recurring, usage-based, milestone-based, or ad hoc). Unless otherwise stated, payment is due within 30 days of invoice date.
(c) Late Payment Overdue amounts incur interest at 1.5% per month (18% per annum), calculated daily from the due date. You are responsible for all reasonable collection costs, including legal fees.
(d) Service Suspension and Termination If payment remains overdue for 30 days, we may suspend Services upon 10 business days’ written notice. If payment is not received within 60 days of the original due date, we may terminate this Agreement upon 10 business days’ written notice. Suspension does not waive amounts owing.
(e) Data Retention Upon Termination Access to data retention or export services after termination for non-payment requires full payment of all outstanding amounts. Upon payment, you may select a data aftercare solution per our Data Retention and Access Solutions page. If no aftercare option is selected within 30 days of termination, we may delete data per our retention policies.
(f) Payment Disputes Disputes must be raised in writing within 7 days of invoice date with reasonable detail. The undisputed portion must be paid by the due date.
(g) Additional Charges
- Excess Usage: Charged per rates in the Commercial Order
- Fair Use Policy: Projects have data allowances based on construction value; overages incur additional charges
- Extended Duration (construction-value subscriptions only): Projects extending beyond agreed term incur 0.1% of construction value per annum for continued access, support, and infrastructure
RENEWAL AND TERMINATION
(a) Renewal of Subscription:
(i) PAYG Licence Subscriptions will automatically renew on a month-to-month basis unless terminated in accordance with these Terms or the Commercial Order.
(ii) Corporate and Project Licence Subscriptions will automatically renew for the same period as the initial Term, unless either Party gives at least 30 days’ written notice before the end of the current Term of their intention not to renew.
(b) Termination for Convenience: You may terminate your Subscription for convenience by providing us with 30 days’ written notice. Termination will be effective at the end of the current billing cycle.
(c) Termination for Breach: Either Party may terminate these Terms with immediate effect by providing written notice to the other Party if the other Party commits a material breach of these Terms and fails to remedy the breach within 14 days of receiving notice of the breach.
(d) Early Termination: If you terminate your Subscription before the end of the Subscription Period (other than for our breach), you may be required to pay an Early Termination Fee.
(e) Effect of Termination: Upon termination or expiry of these Terms:
(i) All licences granted to you under these Terms will immediately cease, and you must stop using the Platform and the Services;
(ii) You must return or destroy all Confidential Information and any other materials we have provided to you;
(iii) You must pay all outstanding Fees, including any applicable Early Termination Fee;
(iv) Termination does not affect any rights or obligations that accrued prior to termination.
DATA AND PRIVACY
(a) Data Ownership: You retain all rights, title, and interest in your Data. By using the Platform, you grant us a licence to use, store, and process your Data as necessary to provide the Services.
(b) Data Security: We take reasonable steps to protect your Data from unauthorised access, loss, or damage. However, you acknowledge that no system is completely secure, and we cannot guarantee the absolute security of your Data.
(c) Privacy Policy: Your use of the Platform is subject to our Privacy Policy, which outlines how we collect, use, and protect personal information. By using the Platform, you consent to the collection and use of your personal information as described in our Privacy Policy.
(d) Data Retention: Upon termination of these Terms, you have 30 days to select one of the following data retention options:
(i) Commnia Read-Only: Your project data is stored in Commnia’s hot storage environment with on-demand restoration access. Pricing and features are detailed here.
(ii) Commnia Archive: Your project data is archived in low-cost Azure cold storage. This option offers the most economical long-term storage but requires advance notice and incurs retrieval fees when you need to access your data. Retrieval costs vary based on project size and urgency. Pricing and features are detailed here.
(iii) On-Premises Archive: Receive a complete export of your project data to your designated cloud storage for perpetual offline access. Pricing and features are detailed here.
(iv) No Archive Selected: If you do not select an archive option within 30 days of termination, Commnia will permanently delete your data in accordance with our data retention policies, unless otherwise required by law.
You may request a data export during the 30-day decision period, subject to applicable service fees. Current pricing for all archive options is available on our Data Retention page.
YOUR RESPONSIBILITIES AND OBLIGATIONS
(a) You must, at your expense:
(i) Provide us with all reasonable information, assistance, and cooperation in order for us to supply the Services in an efficient and timely manner;
(ii) Ensure all information provided to us in accordance with these Terms is and remains current, complete, and correct, and the email address(es) you provide is/are valid and regularly checked;
(iii) Make any changes to your Computing Environment, such as system upgrades, that may be required to support the delivery and operation of any part of the Services;
(iv) Keep accurate and complete records of your Actual Project Turnover; and
(v) Produce records and information sufficient to enable us to verify your Actual Project Turnover upon our request.
(b) This clause survives the termination or expiry of these Terms.
FEES
(a) This clause 8 applies only to Paying Users, including PAYG Users unless otherwise specified.
(b) Unless otherwise agreed in a Commercial Order, we offer the following Subscription Types for Paying Users:
(i) A “User Licence Subscription”;
(ii) A “Project Licence Subscription”;
(iii) A “Corporate Licence Subscription”;
(iv) A “Pay-As-You-Go (PAYG) Subscription”; and
(v) Any other subscription options as in the Commercial Order (each a Subscription).
(c) We reserve the right to update or amend our Subscription Types and Subscription Fees, or add or remove any Subscription Types, at our discretion.
(d) Your Commercial Order will set out your applicable:
(i) Subscription Type;
(ii) Subscription Fee; and
(iii) Subscription Period.
(e) Notwithstanding your Subscription Type, you will be required to pay the Minimum Subscription Fee unless you are on a PAYG model. PAYG users are exempt from the Minimum Subscription Fee, except where otherwise stated in the Commercial Order.
(f) The method of calculating your Subscription Fee will be as set out in your Commercial Order.
(g) PAYG Users:
- For PAYG users, fees are calculated based on your actual platform usage each billing period, including data storage, active users, and transaction volumes, as detailed in your Commercial Order and current pricing schedule.
- You will be invoiced monthly, and payment must be made within 30 calendar days of receipt of the Invoice.
(h) Where a Corporate Subscription Period is renewed, you agree to provide us with:
(i) Actual Project Turnover for the previous subscription; and
(ii) An updated Estimate Project Turnover for each of your Projects in the renewed Subscription Period.
FEE ADJUSTMENT
(a) You acknowledge and agree:
(i) At the expiry of a Project Licence Subscription, or anniversary of a Corporate Licence Subscription or User Licence Subscription, or during a Subscription Period; and/or
(ii) If these Terms are terminated or expire, howsoever arising, to provide to us, if requested:
(iii) The Actual Project Turnover for all Projects for the relevant Subscription Period; and/or
(iv) A completed Commnia Declaration of Actual Project Turnover for your applicable state or territory, as available on our Website.
(b) PAYG Users:
PAYG users may be subject to an adjustment based on the Actual Project Turnover or other relevant usage metrics, depending on the terms of the Commercial Order. Any fee adjustments will be reflected in subsequent billing periods.
(c) You acknowledge and agree:
(i) In addition to the Subscription Fee, Additional Fees may apply as set out in the Commercial Order;
(ii) To pay the Additional Fees in the manner, currency, and time period as specified by us in the Invoice; and
(iii) Where the Actual Project Turnover is less than the Estimated Project Turnover, then, without limiting any of our rights or entitlements, you will not be entitled to any reduction of the Subscription Fee.
(d) You acknowledge and agree that we may, after giving you prior notice, engage a reputable independent third party, procure an independent third-party report, or use an independent third-party service provider, to verify your assessment of the Actual Project Turnover for the relevant financial year. The independent third party will be bound by appropriate confidentiality obligations to protect your confidential information. The determination of the Actual Project Turnover by the independent third party will be final and binding. If the third-party assessment concludes that you have understated your Actual Project Turnover by more than 5%, then we may recover from you our reasonable costs of conducting the third-party assessment.
(e) Data Usage and Fair Use Policy – For Projects Exceeding 250GB of Storage (Effective 1 July 2025):
(i) Projects that exceed 250GB of data storage are subject to excess data charges.
(ii) Excess Data Charges: A rate of $9.99 AUD per GB per month will apply to all data beyond 250GB, regardless of the original construction value. Charges are calculated based on actual usage above the 250GB threshold.
(iii) Billing and Notifications: Excess data charges will be included in your standard monthly or quarterly invoice. Clients will be notified as they approach the 250GB threshold to enable proactive data management.
(f) Extended Project Duration Policy:
(i) If a project extends beyond its originally agreed term (e.g., a three-year project continues into a fourth year), Commnia reserves the right to apply an additional fee of 0.1% of the total construction value per year (or part thereof). This fee reflects ongoing support, data storage, and infrastructure needs. Charges will be invoiced monthly or quarterly in line with your existing billing structure.
(g) Archived, Completed and Expired Projects:
(i) Projects marked as completed or expired continue to incur subscription fees. Expired statuses are purely informational and do not constitute an archive.
(ii) Data Management for Completed and Expired Projects: To maintain platform performance and ensure fair use, completed and expired projects must be archived once active work has ceased. Projects are expected to be archived within a reasonable timeframe after completion. Archiving ensures your project data remains secure, accessible, and well-managed.
(iii) Archive Options:
- Commnia Online Archive: $24.99 per GB annually for cold storage, $99/month for full read-only project access. Secure access at any time, scalable to your needs.
- On-Premises Archive: $99 one-time project access fee, $44.99 per GB for data export. Includes Dropbox-compatible archive transfer.
- Permanent Deletion: Free, irreversible deletion of project data.
(iv) Access Options for Archived Projects:
- Read only Access: Available for $99 AUD per month. This is the default option, allowing continued viewing of project data without editing capabilities.
- Full Active Access: Restore full functionality for 0.1% of the original construction value + $9.99 AUD per GB/month of active data usage. (Any previously paid archive fees will be credited towards this cost.)
(v) Deletion Policy: Projects (completed or expired) will be permanently deleted 60 days after the end of the billing cycle if:
- No active subscription or archive plan is in place, and
- No payment has been received during that time.
Expired or completed projects will be permanently deleted after 60 days unless archived. To retain data, you must choose one of the archiving options before the 60-day period ends.
(h) Restoring a Project from Archive to Active:
(i) Commnia offers flexibility in accessing archived project data. Projects can be restored from the archive under two status types:
(ii) Read-Only Access (Default): Restored projects are made available by default as read-only.
- Cost: $99 per month.
- Billing Note: This charge applies from the beginning of the calendar month in which the project is restored—regardless of whether it is restored on the 1st or the 31st. There are no additional storage charges, as these are included in your archive fees. This option is ideal for reference, compliance, or audit purposes.
(iii) Full Active Access: If you require a project to be reactivated (i.e., restored with full editing, collaboration, and active workflow features):
- Charges: The project will revert to 0.1% of the Approved Construction Value (ACV), plus data charges of $9.99 per GB per month.
- Billing Term: Fees are charged in 12 monthly instalments, starting from the calendar month of reactivation—whether restored on the 1st or 31st.
- Credit Note: Any archive storage fees previously paid will be credited towards the new billing arrangement.
PAYMENT
(a) This clause 10 applies only to Paying Users, including PAYG Users unless otherwise specified. If you are a Paying User, you agree to pay us:
(i) The applicable Subscription Fee;
(ii) The Minimum Subscription Fee, if applicable (except PAYG users);
(iii) The Early Termination Fee, if applicable;
(iv) The Additional Fee, if applicable;
(v) For any additional services that you have requested as set out in your Commercial Order, including Data Hosting Services or the Defects and Liability Services, if applicable; and
(vi) The balance of any requested Services or expenses that may have been amortised into an annual Subscription, and any other amounts due and payable under these Terms (collectively the Fees), in accordance with these Terms.
(b) For PAYG users, payment will be based on actual usage as outlined in the Commercial Order, and you agree to pay us within [30 calendar days] from the receipt of the Invoice.
(c) In relation to the Data Hosting Services, any network or setup required to facilitate connection to the hosted servers will not be incorporated into the Fees for the Data Hosting Services.
(d) You agree to pay us the applicable portion of the Subscription Fee:
(i) Prior to the commencement of your Subscription Period and in accordance with the Payment Terms and Fee Schedule in the Commercial Order,
(ii) In the manner set out in the Invoice; and
(iii) Within 30 calendar days from the date of receipt of the Invoice.
(e) If any payment of the Fees is not made in accordance with these Terms, our Invoices, and/or the Commercial Order, we may (at our absolute discretion):
(i) Immediately cease providing the Services and recover as a debt due and immediately payable from you our additional costs of doing so;
(ii) Charge an interest at a rate equal to the Commonwealth Bank of Australia commercial cash loan rate from time to time plus 8% per annum, calculated daily and compounding monthly, on any amounts unpaid after the due date of payment;
(iii) Engage debt collection services and/or commence legal proceedings in relation to any unpaid amounts; and/or
(iv) Report you to independent credit data agencies.
(f) All amounts are stated in Australian dollars unless stated otherwise. All amounts are exclusive of GST. If you are located outside Australia, you will not be charged GST. You are responsible for all taxes, levies, or duties imposed by taxing authorities in your own country, and you shall be responsible for payment of them. We have no responsibility to them on your behalf.
(g) Without limiting clause 20, by agreeing to a Subscription, you acknowledge and agree that you are entering into a binding contract and you are liable to pay the Minimum Subscription Fee for the full duration of the Subscription Period, except for PAYG users who are billed based on actual usage.
(h) You acknowledge and agree that the Early Termination Fee and Minimum Subscription Fee are a genuine pre-estimate of our loss as a result of your early termination, except for PAYG users where early termination may be subject to different terms as outlined in your Commercial Order.
(i) Our pricing structure or payment methods may be amended from time to time in our sole discretion. Any amendments in accordance with this clause will only apply after renewal of your Subscription Period and to new Commercial Orders.
VARIATION
(a) If you wish to make changes to your applicable Subscription or the Services, including requesting any Additional Services, or to increase the Estimate Project Turnover cap, including for any increase in Authorised Users, you must provide notice in writing to us with the details of the variation or change (Variation Request).
(b) Any Variation Request will not be binding on either party unless each party has accepted the Variation Request (including any adjusted Fees) in writing (signed by Commnia and the authorised representatives), and Commnia has provided an Invoice setting out the adjusted Fees due as a result of the change within the Instalment Period (Fee Variation). As applicable and as agreed between the parties, any future Fees will also be adjusted by the Fee Variation. Any changes to your Platform Licence or Subscription will take effect immediately upon our receipt in full, of the adjusted Fees in the Invoice, from you.
DATA
(a) You grant us a perpetual, non-exclusive, irrevocable, sub-licensable and transferrable licence to copy, transmit, store and back-up or otherwise use or access the Data for the purposes of supplying the Services to you (including to enable you, your Authorised Users and your Personnel to benefit from the Services) and as reasonably contemplated by these Terms.
(b) You must, at all times, use best endeavours to ensure the integrity of your Data and must ensure that your use of your Data is compliant with all laws. You represent and warrant that, to the best of your knowledge:
(i) You have obtained all necessary rights, releases and permissions to provide all your Data to us and to grant the rights granted to us in these Terms; and
(ii) Your Data and its transfer to and use by us as authorised by you under these Terms do not violate any applicable laws (including those relating to export control and electronic communications) or rights of any third party, including any intellectual property rights, rights of privacy, and any use, collection and disclosure authorised in these Terms is not inconsistent with the terms of any applicable privacy laws. Subject to us complying with our obligations in these Terms, we assume no responsibility or Liability for your Data, and you shall be solely responsible for your Data and the consequences of using, disclosing, storing or transmitting it.
(c) Each Paying User acknowledges that by transmitting and receiving Data to and from the Platform, the Paying User is making information available for the use of the Authorised Users that are participating in the Project (Project Participants) and the retraction of such information may negatively affect those Project Participants. Commnia may, as a condition to complying with any request to retract or delete Data by you, require the Paying User to comply with Commnia reasonable risk mitigation requirements including execution of a waiver by affected parties prior to any retraction of information.
(d) You acknowledge and agree that any Data conversion and analysis performed with the Platform is subject to the likelihood of human and machine errors, omissions, delays and losses, including but not limited to any loss of Data or damage to media that may give rise to loss or damage. We will use industry-standard reasonable endeavours to avoid and minimise such errors, omissions, delays and losses to the extent it is within our reasonable control to do so. Subject to us complying with our obligations in these Terms, Commnia is not liable for any such errors, omission, delays or losses. You acknowledge and agree you are responsible for adopting reasonable measures to limit the impact of such problems. Where your Services include Data Hosting Services as per your Commercial Order, Data are stored in servers in Australia. We will take industry-standard reasonable steps to ensure that any Data we collect is kept secure and confidential.
(e) Security: We will implement industry-standard security procedures to help protect your Data and your environment from security attacks and viruses through the Platform and the Services. However, you acknowledge that use of the Platform necessarily involves transmission of your Data over networks that are not owned, operated or controlled by us, and we are not responsible for any of the Data being lost, altered, intercepted or stored across such networks. Similarly, while we will implement industry-standard security procedures, you acknowledge that we cannot guarantee that our security procedures will be error-free, that transmissions of your Data will always be secure or that unauthorised third parties will never be able to defeat our security measures or those of our third-party service providers; and that we are not liable for such Data breaches or losses. We will notify you immediately if we become aware a security risk or breach and will take all reasonable steps to mitigate the impacts of such a security risk of breach.
(f) You acknowledge that installation and use of the Platform may involve the Platform extracting Data, User Information and/or other information from the operating system of your Device. You consent to us accessing and extracting such Data and/or related information for use as reasonably necessary for the Platform. Data will also be used to monitor and assess how many Authorised Users you permit to access the Platform for the purposes permitted in these Terms.
(g) We will not use, share, review, distribute or reference any Data or User Information except in accordance with these Terms and our Privacy Policy.
(h) Removals: We have no obligation to monitor any content uploaded to the Platform. Nonetheless, if we deem such action necessary for any reason, we may (without limiting our other rights) remove your Data from the Service by providing prior notice to you. We have no Liability to you for removing your Data from the Service.
(i) Where we do not provide you with Data Hosting Services you acknowledge and agree:
(i) You are solely responsible for the hosting and security of the Data and User Information and that we have no Liability to you in this regard;
(ii) You are responsible for implementing and maintaining the security systems as may be required to protect the transmission of User Information and Data;
(iii) Commnia does not guarantee the security of these services and Commnia will not be responsible in the event of any infiltration of its security systems; and
(iv) Commnia is not responsible for any other party’s servers.
(j) Commnia will ensure it complies with all applicable Australian laws and regulations regarding the use and disclosure of Data and the provision of the Services, including but not limited to all Australian privacy laws.
(k) Commnia warrants that the Services and the Platform do not breach the intellectual property rights of any third party.
USER OBLIGATONS
(a) You warrant that to the best of your knowledge, after having made all due and proper enquiries and exercising all reasonable care, all information provided to Commnia is and will remain true, accurate, current and complete.
(b) You acknowledge and agree that:
(i) You are responsible for complying with all laws and regulations regarding the use and disclosure of Data, including but not limited to all privacy laws and other requirements under applicable laws;
(ii) You must, at all times, comply with our Acceptable Usage Policy when accessing or using the Services;
(iii) You are authorised to use the Services and to access any information or Data you supply to the Platform or us, including any Data which has been inputted into the Platform by an Authorised User to any other person you have authorised to do so and Data which we host as part of our Data Hosting Services (if applicable);
(iv) The Platform must only be used for your own lawful internal business purposes, in accordance with these Terms;
(v) All usernames and passwords required to access the Services are kept secure and confidential;
(vi) If there is any unauthorised use of an Authorised User’s passwords or any other breach of security, you will immediately notify Commnia of such activity;
(vii) The Platform operate within the Authorised User’s Device or other computer system (End User System) in accordance with the Training Manual;
(viii) The reliability of the Platform is dependent upon the Authorised User’s configuration and implementation of the Platform; and
(ix) It is the responsibility of the Authorised User to determine that the Platform meet the needs of the Authorised User and their business and is suitable for the purposes for which the Platform are used.
(c) You may use the Platform on behalf of others or in order to provide services to others but if you do so you must ensure that you are authorised to do so and that all persons for whom or to whom services are provided comply with and accept these Terms which apply to you.
(d) Upon request you must, as soon as practicable, grant Commnia remote access to the End User System, Data, technology or other infrastructure used by the Authorised User to operate the Platform. Failure to do so may prevent Commnia from providing the support and maintenance for the Platform as required to ensure the Platform materially performs in accordance with the Training Manual.
(e) Each Authorised User must have their own safeguards and back up processes in place to recover from any failures or loss of Data which might occur whilst using the Platform and protecting the confidentiality of the Data with suitable management procedures, as they may see fit.
PROHIBITED USE
(a) You acknowledge and agree that you will not:
(i) Attempt to circumvent or disable the Platform or any technology features or measures in the Platform by any means or in any manner;
(ii) Attempt to modify, copy, adapt or reproduce the Platform except as necessary to use it for normal operation;
(iii) Attempt to decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for the Platform;
(iv) Distribute, encumber, sell, rent, lease, sub-license, or otherwise transfer, publish or disclose the Platform to any third party (except as permitted under these Terms);
(v) Frame, “mirror” or service any of the Platform on any Device, web server or other computer server over the Internet or any other network;
(vi) Remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in or on the Platform or used in connection with the Platform;
(vii) Use the Platform in any manner to aid in the violation of any third party Intellectual Property, including but not limited to another’s copyrights, trade secrets, and patents;
(viii) Attempt to undermine the security or integrity of Commnia’s computing systems or where the Platform is hosted by a third party, that third party’s computing systems and networks;
(ix) Use, or misuse, the Platform in any way which may impair the functionality of the Platform, Platform and/or Website or other systems used to deliver the Platform or impair the ability of any other user to use the Platform, Platform or Website;
(x) Attempt to gain unauthorised access to any materials other than those to which you have been given express permission to access or to the computer system on which the License for the Platform is executed; and
(xi) Transmit, or input into the Platform or Website, any files that may damage any other person’s computing devices or software, content that may be offensive, or material or Data in violation of any law (including any content protected by copyright or trade secrets which you do not have the right to use).
(b) You acknowledge that any breaches of this clause 14 may lead to termination of these Terms.
CONFIDENTIAL INFORMATION
(a) Subject to paragraph
(b) Below, each party acknowledges and agree that it will:
(i) Not disclose the Confidential Information to any third party at any time;
(ii) Use its best endeavours to protect the Confidential Information from any unauthorised disclosure;
(iii) Only use the Confidential Information for the purpose for which it was disclosed by the other party and not for any other purpose;
(iv) Be responsible for and assume liability in relation to each of its employees, agents, consultants and contractors to whom Confidential Information is disclosed and ensure that they maintain the confidentiality of the Confidential Information and otherwise comply with the obligations set out under these Terms; and
(v) Not display, demonstrate, show or grant access to any aspect of the Services, software or literature to any of individual or entity that is, who you know to be, or who you ought reasonably know to be, a competitor of the other party.
(b) The obligations set out in paragraph (a) do not apply to Confidential Information:
(i) That is already in the public domain, except as a result of the actions of the Authorised User in breach of these Terms;
(ii) Received from a third party, except where there has been a breach of confidence leading to its disclosure; and/or
(iii) That must be disclosed by law, provided that the Authorised Users reveals only so much of the Confidential Information as the Authorised User is required by law to disclose and gives sufficient notice to the other party in order to allow the other party to object to, or otherwise prevent, the Confidential Information being disclosed.
(c) This clause 15 will survive termination of these Terms.
INTELLECTUAL PROPERTY
(a) All Intellectual Property (including copyright) developed, adapted, modified or created by us or our personnel (including in connection with these Terms, the Platform and the Services) will at all times vest, or remain vested, in us.
(b) You must not, without our prior written consent:
(i) Copy or use, in whole or in part, any of our Intellectual Property;
(ii) Reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any of our intellectual property to any third party; or
(iii) Breach any Intellectual Property rights connected with the Website, the Platform or the Services, including (without limitation) altering or modifying any of our Intellectual Property; causing any of any of our Intellectual Property to be framed or embedded in another website; or creating derivative works from any of our Intellectual Property.
(c) In addition, title, ownership rights and Intellectual Property rights in and to any content displayed on the Website or in the Platform, or accessed through the Website or the Platform, are the property of the applicable content owner and may be protected by applicable copyright or other law. These Terms give you no rights to such content.
(d) Commnia acknowledges and agrees that you hold all ownership rights and Intellectual Property Rights in content your users upload to the Platform.
(e) This clause 16 will survive termination of these Terms.
UPDATES AND SUPPORT
(a) We may provide you with updates to the Platform, including any improvements to the Platform, that include but are not limited to bug fixes, addition of new features, new functionality, increased efficiency or other modifications (collectively referred to as Updates) for the duration of these Terms.
(b) An Update does not include other Services or other computer software applications (whether on desktop or on cloud) released by Commnia which may have features or functionality similar to the Platform, nor does it grant you an additional Platform Licence.
(c) You acknowledge that we have no obligation to provide you with any support for Updates to the Platform, as agreed in these Terms.
(d) We may, from time to time, issue updated versions of the Platform and the Platform may automatically connect to Commnia or third party servers via the Internet to check for available Updates to the Platform, and may either:
(i) Automatically electronically update the version of the Platform that you are using on your computer; or
(ii) Give you the option of downloading it. By installing the Platform, you hereby agree to automatically request and receive Updates from Commnia or third party servers. You consent to such automatic upgrading and agree that these Terms will apply to all such Updates.
(e) The Platform may contain automatic communications features which relay certain non-personally identifiable information to Commnia in connection with the operation of the Platform. This information may include your Platform settings and what version of the Platform you are using. Commnia may use this information for research purposes including statistical analysis of aggregate customer behaviour.
(f) Commnia will provide support to the Authorised Users. If you require technical support, please contact us using the contact details at the end of these Terms. The support we provide to you is subject to you providing sufficient details about the issue and access (whether remotely or otherwise) to the Platform and Data on the End User System, technology or infrastructure.
DISCLAIMERS
(a) Certain legislation including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth), and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees, and remedies relating to our provision of our services which cannot be excluded, restricted or modified (Statutory Rights). Nothing in these Terms attempts to exclude, restrict, or modify your Statutory Rights as a consumer under the ACL. Any and all other warranties or conditions which are not guaranteed by the ACL are expressly excluded where permitted, except to the extent such warranties and conditions are fully expressed in these Terms.
(b) You acknowledge and agree that:
(i) Subject to Commnia complying with its obligations under these Terms and at law, you use the Services and any associated programs and files at your own risk;
(ii) The technical processing and transmission of the Services, including your Data, may be transferred unencrypted and involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices;
(iii) We may use third party service providers to host the Platform where we provide you with Data Hosting Services. If the providers of third party applications or services cease to make their services or programs available on reasonable terms, we may cease providing any affected features without liability or entitling you to any refund, credit, or other compensation;
(iv) The Services may use, or be reliant or contingent on, the operation of Third Party Inputs. We do not make any warranty or representation, and to the maximum extent permitted by law, will have no Liability, in respect of any failure of the Services or breach of these Terms as a result of any Third Party Inputs; however, we will use reasonable endeavours to ensure that Third Party Inputs are appropriate and safe for use;
(v) Subject to our compliance with these Terms and at law, we do not guarantee that any file or program available for download and/or execution from or via the Platform is free from viruses or other conditions which could damage or interfere with Data, hardware or software with which it might be used;
(vi) From time to time, we may make certain services and/or features available to you for use which are still in their beta stage (Beta Services). Beta Services have not been fully tested and are provided on an ‘as is’ basis; and, to the maximum extent permitted by law, we make no representations, warranties, or guarantees in relation to such Beta Services;
(vii) We may pursue any available equitable or other remedy against you if you breach any provision of these Terms.
(c) PAYG users are subject to all disclaimers in this Clause 18, including reliance on third-party services and the absence of guarantees for uninterrupted service, the error-free operation of the Platform, and fitness for any specific use case.
(d) Commnia has no Liability for use of the Platform in countries other than as specified on the Commercial Order.
(e) You acknowledge that we give no warranty or guarantees that:
(i) The Platform and Services will be fit or suitable for your particular requirements or purposes, unless expressly stipulated in these Terms;
(ii) The Platform will be uninterrupted or error free;
(iii) The Platform will work in each of your desired use case scenarios; and
(iv) The Platform can be executed on every operating system, as it is impossible to test each variant.
(f) The operation of the Platform may be dependent on public telephone services, computer networks, and the Internet, which can be unpredictable and may from time to time interfere with the use of the Platform. Commnia accepts no responsibility or Liability arising from or in connection with any such interference or prevention of your use of the Platform.
(g) The Platform is not intended for use in the operation of medical instruments, watercraft, military installations, warfare equipment, industrial control systems, SCADA systems, robotic systems, surgical/medical applications or equipment, artificial intelligence applications or systems, gambling/wagering systems, prototype or experimental single product items, nuclear facilities, aircraft navigation or communications systems, air traffic control machines, or any other machines in which the failure of the Platform could lead to death, personal injury, or severe physical or environmental damage.
LIMITATION OF LIABILITY AND INDEMNITY
(a) Limitation of Liability: Despite anything to the contrary, to the maximum extent permitted by the law:
(i) We have no Liability to any Non-Paying User, and each Non-Paying User releases and discharges us from all Liability, arising from or in connection the Services and these Terms;
(ii) Our maximum aggregate Liability arising from or in connection with these Terms (including the Services or the subject matter of these Terms) will be limited to, and must not exceed the total amount of Fees you paid to us in the month in which the liability arose or $1 if no such Fees have been paid;
(iii) A Party’s liability for any Liability under these Terms 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 a Party’s failure to take reasonable steps to mitigate that Liability; and
(iv) We will not be liable to you for any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.
(b) Release: Without limiting any other term, and to the maximum extent permitted by the law, we have no liability to you, and you waive, release and discharge us from all Liability, arising from or in connection with:
(i) Failure or delay in providing the Service, for any reason;
(ii) Failure, unavailability, outage or interruption to your Computing Environment or Data, for any reason;
(iii) A fault, defect, error or omission in your Computing Environment or Data;
(iv) Any use or application of the Services by a person or entity other than you, or other than as reasonably contemplated by these Terms;
(v) Any work, services, goods, materials or items which do not form part of the Services (as expressed in these Terms), or which have not been provided by us;
(vi) Any Third Party Inputs, subject to appropriate due diligence being undertaken when determining Third Party Inputs; or
(vii) Any event or circumstance beyond our reasonable control (including Force Majeure event).
(c) Indemnity: Despite anything to the contrary, to the maximum extent permitted by the law, you must indemnify us and hold us harmless from and against any loss, cost, liability or damage, howsoever arising, suffered or incurred by us and arising from or in connection with any third party claim against us to the extent caused or contributed to by you, your Authorised Users or your personnel, including where relating to your Data, or any breach of these Terms by you.
(d) This clause 19 will survive expiry or termination of these Terms.
TERMINATION
(a) Project Licence Subscriptions will commence on the Start Date and will expire at the End Date, unless terminated earlier in accordance with these Terms or extended by means of a variation in accordance with clause 11.
(b) User Licence Subscriptions and Corporate Licence Subscriptions commence on the Start Date and will automatically renew at the End Date of the then-current Subscription for a further Subscription Period (the duration of which will be the shorter of the Subscription Period and one year), unless either Party provides the other Party with at least 90 days’ written notice of its intention not to renew the Terms prior to the expiry of the then-current Subscription Period. PAYG Subscriptions require only 30 days’ written notice for termination.
(c) You may only terminate these Terms by providing us with 90 days’ notice in writing, using the contact details at the end of these Terms, only if:
(i) Subject to our rights under these Terms, we have materially breached these Terms by failing to provide the Services in accordance with these Terms, and we have failed to remedy such breach within 90 days of being notified of the breach by you in writing; or
(ii) You have paid all Fees due to us at the date of termination, and you provide notice within the first 90 days of the Start Date; or
(iii) The initial Subscription Period has ended.
(d) You acknowledge and agree that if you wish to terminate your Subscription prior to the expiry of the initial Subscription Period, for whatever reason and irrespective of whether you have provided us with the notice required under clause 20 or otherwise, you will be liable to pay us any Early Termination Fee payable under these Terms, in addition to:
(i) The Subscription Fee payable by you up to the expiry of the notice period required under clause 3; and
(ii) If the expiry of the notice period required under clause 20 falls within an Instalment Period, you will be required to pay the Subscription Fee applicable to that Instalment Period in full.
(e) We may terminate the Terms immediately, in our sole discretion, if:
(i) You breach any material provision of these Terms and do not remedy the breach within 30 days after receiving notice of the breach if the breach is capable of being remedied unless a longer cure period is agreed to by Commnia;
(ii) You breach any provision of these Terms that is not able to be remedied;
(iii) We reasonably suspect that you are attempting to reverse engineer the Platform that is provided to you;
(iv) You fail to provide us with clear or timely instructions to enable us to provide you with a License;
(v) We acting reasonably consider that our working relationship has broken down including a loss of confidence and trust;
(vi) Where the Authorised User is an individual, an order for the appointment of a trustee in bankruptcy or analogous step is taken against that individual; or
(vii) For any other reason outside our control which has the effect of compromising our ability to provide you with the required Platform or License within a required timeframe.
(f) On termination of these Terms, cancellation of your Subscription, or completion of the Services, we may retain your documents (including copies) only to the extent required by law or regulatory requirements. We will otherwise return or destroy other documents in accordance with your written direction. Your express agreement to the Terms constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on termination of these Terms, cancellation of your Subscription, or completion of the Services. We will give you a reasonable period to remove any content from the Platform following termination.
(g) Without limiting our rights under these Terms, on termination of the Terms:
(i) You agree to confirm your Actual Project Turnover and supply to us a Commnia Declaration of Actual Project Turnover;
(ii) You agree to immediately pay us all amounts due and payable to us by you under these Terms (including the Fees);
(iii) (except where the termination is by you under clause 20, or where the date of termination is within the initial 90 days from the Start Date) you agree to pay us the Early Termination Fee, or where no Early Termination Fee is particularised in the Commercial Order, the balance of the Minimum Subscription Fee as at the date of termination of the Terms (and such amount will be deemed to be the “Early Termination Fee” for the purposes of these Terms);
(iv) Except where the termination is by you under clause 20, you agree to pay us our additional costs and expenses arising from, or in connection with, such termination;
(v) Except as set out in the Commercial Order, and to the maximum extent permitted by law, all Fees paid to us by you under these Terms are non-refundable; and
(vi) It is your responsibility to retrieve all necessary Data from the Platform prior to termination of these Terms or cancellation of your Subscription, regardless of whether you receive our Data Hosting Services.
FEEDBACK AND DISPUTE RESOLUTION
(a) Your feedback is important to us. We seek to resolve your concerns quickly and effectively. If you have any feedback or questions about the Services, please contact any member of our staff.
(b) If there is a dispute between the Parties in relation to these Terms, the Parties agree to the following dispute resolution procedure:
(i) The complainant must tell the respondent in writing within 14 days from the disputed event, the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute. The Parties agree to meet in good faith to seek to resolve the dispute by agreement between them (Initial Meeting); and
(ii) If the Parties cannot agree how to resolve the dispute at the Initial Meeting, any Party may refer the matter to a mediator. If the parties cannot agree on who the mediator should be, the complainant will ask the Law Society of New South Wales to appoint a mediator. The mediator will decide the time and place for mediation. The Parties must attend the mediation in good faith, to seek to resolve the dispute. Costs of the mediator will be shared equally between the parties.
(c) Any attempts made by the Parties to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of the Parties under these Terms, by law or in equity.
WARRANTY
Each party warrants that is has not relied upon any warranty, representation, statement, offer or other documentation made or provided by the other party or on behalf of the other party whether before or after the date you accepted these Terms.
NOTICE
Any notice required or permitted to be given to the Authorised User under these Terms will be addressed to the Authorised User at the email address provided by You in the Commercial Order. you must ensure that Commnia’s email is not filtered from your Inbox by your ISP or email software.
RELATIONSHIP OF PARTIES
(a) Neither Party is authorised to bind the other Party in any way without prior written consent of the other Party.
(b) The Parties acknowledge and agree that they will not seek to bind the other Party other than with the prior written consent of the other Party.
RIGHTS OF THIRD PARTIES
Any person or entity who is not a party to these Terms has no right to benefit under or to enforce any of these Terms.
ASSIGNMENT
(a) You must not assign any rights and obligations under these Terms whether in whole or in part without Commnia’s prior written consent.
(b) Any purported dealing in breach of this clause 26 is of no effect.
WAIVER OR VARIATION OF RIGHTS
(a) Any failure or delay by a Party in exercising a power or right (either wholly or partially) in relation to these Terms do not operate as a waiver or prevent that Party from exercising that power or right or any other power or right.
(b) A Party is not liable to any other Party for any loss, cost or expense that may have been caused or contributed to by the failure, delay, waiver or exercise of a power or right.
POWERS, RIGHTS AND REMEDIES
Except as expressly stated to the contrary in these Terms, the powers, rights and/or remedies of a Party under these Terms are cumulative and are in addition to any other powers, rights and remedies of that Party. Nothing in these Terms merges, extinguishes, postpones, lessens or otherwise prejudicially affects any power, right, or remedy that a Party may have at any time against the other Party to these Terms or any other person.
FORCE MAJEURE
If performance of these Terms or any obligation under these Terms (but excluding payment of the Fees) is prevented, restricted, or interfered with by causes beyond either party’s reasonable control (Force Majeure), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, (whether known or unknown at the time of entering into these Terms) acts of God, fire, explosion, epidemic, pandemic, COVID-19, any future variations of COVID-19 vandalism, storm or other similar occurrence, orders of acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lock-outs and work stoppages that are not specific to the affected party, provided such events are outside of the reasonable control and occur without the fault or negligence of the affected party. The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.
CONSENTS AND APPROVALS
Where these Terms provides that a Party may conditionally or unconditionally give or withhold any consent or approval in relation to any matter in these Terms, that Party may in its absolute discretion, and without being obliged to give reasons for doing so, withhold any consent or approval or give consent or approval conditionally or unconditionally.
SEVERABILITY
If any of the terms are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the maximum extent permitted by law.
FURTHER ASSURANCE
Each Party must from time to time and in a timely manner do all things reasonably required of it by another Party to give effect to these Terms.
GOVERNING LAW AND JURISDICTION
These Terms are governed by the laws of New South Wales and the Commonwealth of Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales.
PURCHASE ORDERS
To the extent a Paying User does not enter into a Commercial Order, but instead, issues a Purchase Order, for the provision of the Services, then, to the extent we accept the Purchase Order by notice in writing, we agree to perform the Services to you in accordance with that Purchase Order, and each reference to “Commercial Order” in these Terms will be interpreted as a reference to “Purchase Order”, to the extent the context permits or requires.
ENTIRE AGREEMENT
These Terms and any document expressly referred to in them represent the entire agreement between the Parties, and superseded any prior agreement, understanding or arrangement between the Parties whether oral or in writing.