Introduction, Acceptance, Definitions, and Modifications

These Terms of Use (the “TOU”) apply to the website at howtopay.com (the “Website”), which includes all subdomains present and future. We hope you enjoy your visit and/or use of the Website, which may involve the use of the “Services”, the propriety software system that that Confidia Limited and Australian company with ABN 65 641 060 782 located at Unit B1, 13-21 Mandible St Alexandria NSW 2015 Australia, (Confidia) has developed to facilitate the making of payments to third party individuals or companies around the world (“Recipients”) as well as other related services. The Services are more fully defined herein below. For further clarity, any mention of the Website in these TOU (Terms Of Use) includes the Services, including the Services that are accessed on a subdomain of the Website. The Services are more fully defined herein below. For further clarity, any mention of the Website in these TOU includes the Services, as the Services are accessed on a subdomain of the Website.

By visiting and/or using the Website or clicking the acceptance box upon signing up for an account, you agree to be bound by the terms of this present agreement, the TOU, without any reservations, modifications, additions, or deletions. You must agree to all the provisions contained in the TOU to be authorised to use the Website. The TOU are a legal and binding agreement between you and us.

The Services may only be used by legally constituted entities, including but not limited to corporations, partnerships, and legal organisations (from now on, “Legal Entities”). Suppose you are an individual using the Services on behalf of a Legal Entity. In that case, you represent and warrant that you have the capacity and authority to enter into the TOU on behalf of the Legal Entity. You now agree to be bound by the terms of the TOU on behalf of that Legal Entity.

The Website is owned and operated by Confidia Limited. (Confidia), a corporation located at Unit B1, 13-21 Mandible St Alexandria NSW 2015, Australia.

Where the present TOU refers to Confidia Limited, depending on the context, it may refer to Confidia and its officers, directors, employees, agents, or representatives. Any reference to “we”, “our”, or “us” in these TOU, a Website visitor or user, or the Legal Entity they represent (depending on the context) may be referred to as “you” or “your”. When a Website user has created an account and is logged in to the Services, they may be referred to as a “Logged-in User”. Confidia reserves the right to modify or replace any of the TOU at any time and without prior notice. Any changes to the TOU can be found at this URL. It is your responsibility to check the TOU periodically for changes. Your use of the Website after posting any changes to the TOU constitutes acceptance of those changes. Suppose we make any substantial changes to the TOU that materially affect your legal relationship with Confidia. In that case, we will use commercially reasonable efforts to notify you by sending a notice to the primary email address specified in your account or by posting a prominent notice when you log in to your account for the first time following those changes. The TOU should be read in conjunction with the Privacy Policy, as both these documents govern your use of the Website.

If you have any questions about the TOU, please contact:

Confidia

Compliance Department – [email protected]

Or:

Compliance Department

Confidia Limited Unit B1, 13-21 Mandible St Alexandria NSW 2015 Australia

2. General Code of Conduct for Use of the Website

In addition to the more specific rules found later in these TOU, you agree that by visiting and/or using the Website, you will:

a. Not use the Website in any manner that in any way violates these TOU;

b. Not use the Website in any manner that violates any intellectual property rights of any third party;

c. Not use the Website other than for your own personal use, on behalf of your Legal Entity, or for other Authorized Users (as defined below) on your account;

d. Not use the Website in any manner to propagate spam, including but not limited to unsolicited advertising or bulk electronic mail or messages, including to link to a spam or phishing website;

e. Not use the Website in any manner to propagate software viruses, Trojan horses, worms, or any other malicious or non-malicious computer code, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment in any form whether belonging to Confidia or a third party, or to damage or obtain unauthorized access to any system, data, password or other information (whether Personal Information or not) of Confidia, other Website users, or any other third party;

f. Not take any action that imposes or may impose (as determined by Confidia in its sole discretion) an unreasonable or disproportionately large load on Confidia (or its third-party providers’) infrastructures;

g. Not Interfere, or attempt to interfere, with the proper functioning of the Website or any activities conducted on the Website;

h. Not bypass any measures Confidia may use to prevent or restrict access to the Website or any element thereof;

i. Do Not use manual or automated software, devices, or other processes to “crawl” or “spider” any website page; or

j. Not harvest or scrape any content from the Website in any manner;

k. Use the Website in good faith and in compliance with all applicable local, state, provincial, national, and international laws.

3. Accounts, Passwords and Logged-in Users

In order to use the Services, you are required to create an account. Accounts are free and are available to anyone who provides the requisite information. The information required to create an account is the following: a valid email address, your full name, your company name, your company website, and your phone number. This information, plus any additional non-mandatory information you submit as part of the sign-up process or at a subsequent time, may be referred to in the present TOU or the Privacy Policy as “Account Information”. You may also be asked to provide KYC (Know Your Customer) information that we validate with 3rd party service providers.

As part of the account registration process, you will be asked to choose a password. It is your responsibility to create a password of sufficient strength that cannot easily be discovered by third parties. If you are a Logged-in User, it is strongly suggested that you log out of your account at the end of every session or not leave a logged-in account unattended for any period of time. Confidia, its affiliates, and their respective shareholders, officers, directors, employees, agents, partners, principals, representatives, successors and assigns (collectively “Representatives”) will not be held liable for any losses or damages, direct or indirect, pecuniary or non-pecuniary, resulting from your failure to log out at the end of the session, an unattended logged-in session, or a third party using the Services with your account information and accessing your account through any means, and disclaims any responsibility in this regard.

In addition to your personal account, you may choose to add additional team members from your Legal Entity who shall be able to use the Services as part of your account by submitting additional Account Information as described in the Privacy Policy. These individuals may be referred to in these TOU or the Privacy Policy as “Authorized Users”. You shall be responsible for the rights and obligations under these TOU or the Privacy Policy of any Authorized User for whom you have created a sub-account in this manner. Any violations of these TOU by an Authorized User whose account was created by you shall be your sole responsibility, and you shall be liable for any actions taken by Confidia subsequent to such a violation. Confidia reserves the right to terminate your account, or the account of any Authorized User, at its sole discretion, at any time and for any reason, including but not limited to whether you (or the Authorized User, as applicable) have violated the letter or spirit of the TOU, as more further described hereinbelow.

4. Use of the Services

By using the Services, you agree to be bound by the terms of the present section, in addition to the terms found elsewhere in these TOU.

a. Definition of the Services and the Role of Confidia.

The Services are a propriety software system that Confidia has developed to facilitate the making of payments to Recipients, as well as additional related functionalities and services such as tax compliance. Confidia is not a bank or a Money Services Business (“MSB”), and Confidia does not directly offer banking or MSB services. Confidia only provides the services that are used to facilitate your payment-making.

b. Acceptance Process

In addition to having an account, in order to use the Services in their entirety, you must submit certain information about yourself, your legal entity, and your financial information as more fully described in the privacy policy (hereinafter “Onboarding Information”). By submitting this Onboarding Information, you represent and warrant that.

(i) all the Onboarding Information you submit is truthful and accurate, to the best of your knowledge, and

(ii) you shall provide any additional information pertinent to the acceptance process when requested by us, which shall also be truthful and accurate to the best of your knowledge. Upon receipt of your Onboarding Information, Confidia shall determine if you are eligible to use the Services. Confidia reserves the right, in its absolute discretion, to determine whether you have been accepted to use the Services. Confidia or its Representatives shall not be held liable for any losses or damages, direct or indirect, pecuniary or non-pecuniary, resulting from our denial of your access to the Services.

If you have been accepted to use the Services, you may be referred to as a “Client” in the TOU or the Privacy Policy.

6. Client Agreement

Upon becoming a Client, we may forward to you a Client Agreement between you (as a representative of your Legal Entity) and a third-party financial services partner, which may vary depending on your country of origin (hereinafter “Financial Services Provider”). The Client Agreement governs the making of payments to Recipients, facilitated by the Service Provider. It is your responsibility to execute this Client Agreement with the Financial Services Provider and to adhere to the terms and conditions at all times when using the Services.

Notwithstanding that Confidia has contracted with third-party Financial Services Providers, we have no control over their activities or business nor the terms and conditions of the Client Agreement. Confidia acts only to facilitate payments made to Recipients via the Financial Services Provider. Confidia and or its Representatives shall not be held liable for any losses or damages, direct or indirect, pecuniary or non-pecuniary, resulting from the actions or omissions of any Financial Services Provider or your violation of the terms of any executed Client Agreement, and expressly disclaims any responsibility in this regard. You, the “Client,” fully indemnify Confidia against all loss and damages related to your use of the services.

6. Transfer of Agreement and Account

Assignment of Agreement: Confidia Limited reserves the right to transfer, assign, or delegate your account and the agreement between you and Confidia Limited to any third-party organisation at its discretion. Such transfer may occur without requiring your explicit consent but may be subject to prior notification.

Notification of Transfer: Confidia Limited will inform you of any transfer of your account and the agreement by sending an email notification or by posting an announcement on our website.

Acceptance of Transfer: Your continued use of Confidia Limited's services or your acceptance of these terms constitutes your agreement to the transfer of your contract with us, or our agents, to the new entity, service provider, or corporation. Such acceptance is deemed to occur at the time you receive notice of the transfer and acknowledge the modification to this agreement.

7. Liability and Indemnification

Pre-Existing Agreements: If your account was originally opened with a different legal entity prior to your acceptance of this agreement with Confidia Limited (Australia), you acknowledge that Confidia Limited is not responsible or liable for any credits, liabilities, agreements, or transactions made with the other party before this acceptance.

Indemnification: You agree to indemnify and hold harmless Confidia Limited against any loss, damage, claims, or expenses arising from or related to the change of contract, the transfer of service provider, or any adjustments made in relation to the transitioning of services from the previous entity to Confidia Limited.

Limitation of Liability: Confidia Limited's liability in connection with the transfer of your account and agreement or any related service will be limited to the extent permitted by law. This limitation applies to all claims, regardless of the legal theory on which they are based.

8. Payment of Fees

By using the Services, you agree to pay the applicable fees as outlined on the pricing section of our website or negotiated in your Client Agreement, which shall also be communicated with you upon your becoming a Client (hereinafter “Fees”). Standard fees are listed in the currency that relates to the transaction taking place. As a Logged-in User, detailed fees can be found in your account under “Fee Schedule”. Fees do not include any applicable taxes in any form, duties, export or import fees, or any similar governmental charges; you shall solely be responsible for the payment of any such charges and shall indemnify Confidia for any claim made against Confidia, its affiliates or their respective representatives in connection therewith. The Fees may be adjusted from time to time; you will be given sufficient notice upon adjustment of the amount of the Fees by way of them being published online in your account. Payment of the Fees shall occur without your intervention. Our Financial Services Provider may deduct the Fees from your payments.

9. Third-Party Payment Providers

You may choose to use the Services to make payments to Recipients via “Third Party Payment Providers” such as PayPal. When you use these Services in this manner, you acknowledge and agree that you will comply with any Terms of Service or User Agreement or similar contract between you and the Third Party Payment Provider. Confidia or its Representatives shall not be held liable for any losses or damages, direct or indirect, pecuniary or non-pecuniary, resulting from the actions or omissions of any Third Party Payment Provider and expressly disclaims any responsibility in this regard. Any fees for the use of a third-party payment provider to make payments to recipients shall be borne by you. In addition to the fees owed to the Third Party Payment Provider, you shall also pay the Fees payable to Confidia.

10. Additional Terms

By using the Services, you acknowledge and agree that any payments to Recipients that are facilitated by using the Services are made for services rendered that in no way violate any applicable civil or criminal law in either your jurisdiction or the jurisdiction of the Recipient. Furthermore, both Confidia and any Third Party Payment Provider retain the absolute right to refuse to offer the Services or facilitate or complete any payments to Recipients where payments are to be made for services that we or the Third Party Payment Provider may consider “high-risk” or that in any way violate any Client Agreement. This paragraph shall apply even if you have been accepted to use the Services generally.

11. Copyright and Intellectual Property Rights

a. General

The content, arrangement and layout of the Website and Computer Code (as defined below) are proprietary to Confidia, either owned or under license, and may not be copied, imitated, reproduced, displayed, distributed, transmitted, decompiled, derivative works made from or otherwise used without the express permission of Confidia, or as permitted by the functionality of the Website or these TOU. Any unauthorised use of the content, arrangement or layout of the Website, Computer Code, images, logos, videos, audio or trademarks found on the Website or any derivative works thereof may violate civil or criminal laws, including but not limited to intellectual property laws, and Confidia may take action accordingly.

The above paragraph further applies to third-party property used as part of the Website, including but not limited to third-party Computer Code and or mobile apps. For the purposes of the present section, “Computer Code” includes but is not limited to source code in any programming language, object code, frameworks, CSS, PHP, JavaScript or similar files, templates, modules, or any similar files, and related documentation. If you choose to communicate to Confidia suggestions for improvements to the Website and/or the Services (collectively, “Feedback”), Confidia shall own all rights, titles, and interests in and to the Feedback and will be entitled to use the Feedback without restriction. You hereby irrevocably assign all rights, titles and interest in and to the Feedback to Confidia and waive in favour of Confidia its successors and assign all your rights in the Feedback, and agree to provide Confidia such assistance as Confidia may require to document, perfect, and maintain Confidia rights to the Feedback. You acknowledge and agree that, by providing any Feedback to Confidia, you are not entitled to any compensation or reimbursement of any kind from Confidia under any circumstances.

b. Application Programming Interface (“API”)

If you choose to download and use the Confidia API, no ownership in the API or its constituent Computer Code is transferred to you. We hereby grant you a non-exclusive, worldwide, personal or business, non-transferable, non-assignable, non-sublicensable, royalty-free license to use the API as contemplated in the API documentation.

c. External Links

From time to time, Confidia may provide links to other websites or services. Links from the Website may take you to websites or services not associated with this TOU. When you access third-party resources on the Internet in this manner, you do so at your own risk. Confidia provides those links as a convenience to you, and Confidia takes no responsibility for your use of those other websites or services or for the protection of your privacy (including collection of your personal information) on those other websites or services. We encourage you to check the Terms of Use and/or Privacy Policy of any website or service you visit. Confidia does not make any claim or warranty whatsoever about the content of those websites or services to which we link or any products or services available through those websites or the third parties operating those websites. In no way will Confidia or its Representatives be held responsible for any damages, direct or indirect, pecuniary or non-pecuniary: (1) for your use of websites or other services that may be linked to from the Website or the information thereon; (2) for any virus, Trojan horse, worm or other similar destructive file received as a result of your use of those websites or services; (3) caused by or in connection with, use of or reliance on any content, or products or services (whether free or for purchase) available on or through any linked-to website or service; or (4) for the actions of the operators of any such website or service.

12. Interruption of Service

From time to time, the Website may be unavailable for periods of time for maintenance and/or modifications to the Website. While we will endeavour to make this unavailability as brief as possible, Confidia or its Representatives shall not be held liable for any losses or damages, pecuniary or non-pecuniary, resulting from the interruption of the normal functioning of the Website and disclaims any responsibility thereto.

13. Data Protection

This section applies to the extent that you or Confidia process data to which European data protection laws apply.

The term “GDPR”, also “General Data Protection Regulation”, means the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016, as amended from time to time. The terms “Personal Data”, “Data Subject”, “Data Controller”, “Data Processor”, and “processing” shall have the meaning given to them in the GDPR. “EU Data Protection Laws” means any applicable laws relating to the protection of personal data, including but not limited to the GDPR, national laws relating to data protection, applicable industry standards, the EU-US Privacy Shield Framework, any guidance issued by a competent data protection authority in the UK or at a place of business of the Client if the Client has a place of business in the EU.

In this Agreement, a Party that acts as a Data Controller for certain Personal Data shall be referred to as a “Controlling Party”, and a Party that acts as a Data Processor with respect to certain Personal Data shall be referred to as a “Processing Party” concerning the Personal Data in question. Nothing in this Agreement shall make the Parties joint Data Controllers. Each Party shall refrain from any communication or other acts vis-à-vis third parties that may declare, imply or suggest that the parties are joint Data Controllers. Each Party has taken commercially reasonable steps to maintain appropriate administrative, organisational, physical, and technical safeguards for the protection of the security, confidentiality and integrity of Personal Data.

Each Party shall:

(a) Process all Personal Data by applicable Data Protection Laws;

(b) Limit the processing of Personal Data to the purpose of fulfilling its obligations under this Agreement and/or any obligations of a Party towards a Client or Data Subject;

(c) Promptly correct any incorrect Personal Data or update Personal Data at the request of the Data Subject.

A Processing Party shall:

(d) Follow all reasonable instructions of the Controlling Party concerning the processing of Personal Data; the reasonableness of the instruction is to be assessed against Data Protection laws and the rights of Data Subjects; where it is commercially unreasonable for the Processing Party to follow the instruction, free of charge, the Controlling Party shall undertake to indemnify the Processing Party when giving the instruction;

(e) Immediately inform the Controlling Party of any IT security incident or other incident affecting Personal Data and which may have a negative impact on the rights of a Data Subject concerning the processed Personal Data; to this effect, the Parties shall put in place and maintain relevant communication channels for urgent communication;

(f) Forward, without undue delay, to the Controlling Party any communication from regulators or Data Subjects (including but not limited to complaints, data subject access requests, data correction or deletion requests, data migration requests) that is relevant for the Controlling Party;

(g) Not transfer any Personal Data outside the EEA unless:

i. The transfer is to a jurisdiction that is deemed equivalent to the EEA by a decision of the EU Commission, or the transfer is to a recipient outside the EEA under an agreement with the Processing Party that binds the recipient to the EU Standard Contractual Clauses, and

ii. The Processor has notified the Controller of its general intention to transfer Personal Data to a particular recipient in accordance with subsection (i), and the Controlling Party has not objected to the intention within five business days.

(h) Provide the Controlling Party upon request with reasonable assistance in connection with the Controlling Party’s obligations to comply with Data Protection Laws (including but not limited to necessary inspections, audits and requests for information); the reasonableness of such assistance is to be assessed against Data Protection Laws and the rights of Data Subjects; where it is commercially unreasonable for the Processing Party to assist free of charge, the Controlling Party shall undertake to indemnify the Processing Party when requesting assistance;

(i) Execute such further documents, including but not limited to further processing agreements or EU standard contractual clauses, as the Controlling Party requires to comply with Data Protection Laws;

You are aware that international payment transactions frequently require the transfer of Personal Data outside the EEA. The prohibition on transfers to third countries shall not apply to Personal Data processed by Confidia in connection with such international payment transactions. Instead, you shall at all times ensure that you have:

(j) Procured and will maintain the necessary informed and valid consents from the Data Subject that allows the transfer of Personal Data worldwide to provide the Services under this Agreement

(k) Notify the Data Subject about the purpose, nature, and extent of the processing of Personal Data (by way of a privacy statement presented to the Data Subject or otherwise). You shall indemnify Confidia for any loss (including but not limited to claims by Data Subjects or fines imposed by regulators or courts) caused by the Client’s failure to comply with this section. If you are an individual trader or Confidia otherwise processes the Personal Data of an individual within your organisation to administrate the business relationship or provide the Services under this Agreement (“Personal Client Data”), Confidia shall process such data per its published privacy policy.

You are aware that Personal Client Data related to customer due diligence may be processed and held on file (As required by law) by Confidia for a minimum of 5 years after the end of the business relationship. You are obliged to bring Confidia’s privacy notice to the attention of the individual whose Personal Client Data is being processed. You are further obliged to procure and maintain all relevant consents from individuals within your organisation for the processing of Personal Client Data by Confidia. You shall indemnify Confidia against any claims of unlawful data processing that is due to your breach of this section. The Client shall reimburse Confidia for any reasonable cost incurred in connection with directly dealing with individuals whose Personal Client Data are being processed, including but not limited to the cost incurred in connection with any individual’s data subject access requests, deletion requests, complaints resolved in favour of Confidia, data migration requests or the exercise of any other individual rights under the GDPR or other applicable laws.

14. Termination of the Website or Your Access to the Website and the TOU

You agree that Confidia, in their sole discretion, with or without cause, has the right (but not the obligation) to block your IP address, revoke your account credentials, or otherwise terminate your access to or use of the Website (or any portion thereof), immediately and without notice, for any reason, including, without limitation, if Confidia believes that you have acted inconsistently with the letter or spirit of the TOU or the Privacy Policy, or have violated your Client Agreement. Confidia may also, in their sole discretion and at any time, discontinue providing the Website, or any portion thereof, with or without notice. You agree that Confidia shall not be liable to you or any third party for any losses or damages, pecuniary or non-pecuniary, resulting from the termination of your access to the Website or Confidia's termination of the Website or any part thereof. You may also choose to terminate your access to the Website by cancelling your account. If you wish to cancel your account, please contact us at [email protected]

15. Disclaimer of Warranties

You expressly understand and agree that your use of the Website, the information thereon or materials downloaded therefrom, or any activity arising from your use of the Website or the information thereon or the materials downloaded therefrom is at your sole risk. The Website, any materials downloaded therefrom, or any third-party materials are provided on an ”as is” and “as available” basis, and you will be solely responsible for any damage to your computer system or loss of data that results from the download, stream or access of any material obtained through the use of the Website or any other functionalities of the Website, or losses or damages (financial or otherwise) resulting from your use of the Website, the information thereon, any materials downloaded from there or any activity arising from using the Website, the information thereon or any materials downloaded therefrom. The information or resources provided through the Website, written or produced by Confidia’s staff, freelance writers or other subcontractors hired by Confidia, are expected to be as accurate as possible at the time of writing or production, and every effort has been made to ensure that the information from the Website is as accurate and up-to-date as possible. However, certain information may change, and errors or omissions may occur, and Confidia shall not be responsible for any loss or damage, financial or otherwise, resulting from changes or errors in information, or any omission, on the Website or the information thereon;

Confidia expressly disclaims all warranties of any kind, whether express or implied, including but not limited to warranties of title and non-infringement; warranties that the Website, the information thereon or any materials downloaded therefrom, and any third-party materials or third-party services accessed via the Website will be uninterrupted, error-free, accurate, reliable and free from virus and other harmful components; and the implied warranties of ability and fitness for a particular purpose. Confidia, its affiliates and their respective Representatives do not warrant that:

(a) the Website will be secure or available at any particular time or location;

(b) any defects, errors or omissions will be corrected;

(c) any content (whether provided by Confidia or third parties) available at or through the Website is free of viruses or other harmful components, or

(d) the results of using the Website or any content downloaded therefrom will meet your requirements;

Some of the content displayed on the Website may include materials (including concerning products or services) that belong to or are provided by third parties. You acknowledge that we assume no responsibility for such content, products and/or services. To the extent that the law does not permit a disclaimer of warranties, all content accessible on this Website or any other website to which we link and all operations on this Website are warranted only to the minimum amount legally required.

16. Limitation Of Liability

Limitation Of Liability In no case will Confidia, its affiliates, or their respective Representatives or licensees be liable for any indirect, special, consequential, exemplary, punitive damages or other damages or for any losses, damages, liabilities, costs and expenses arising out of or relating to

(a) your access, use, misuse or inability to access or use the Website or any third-party services accessed via the Website or

(b) the interruption, suspension or termination of any part of or all of the Website; and in both cases and (c) regardless of the cause of action (whether in contract, warranty, delict, quasi-delict, tort, negligence, strict liability or any other theory of liability) and even if we have been advised of the possibility of such damages. Notwithstanding anything to the contrary in the TOU, in no event will our aggregate liability for any claims in connection with your use of the Website exceed the lesser of (i) EUR 100 or (ii) the total amount of the fees paid by you to Confidia over the previous 6 (six) calendar months. Confidia disclaims any responsibility where we, our financial services providers, or any third-party payment provider fail to fulfil any contractual obligations due to an act of God or any force majeure event.

You expressly understand and agree that Confidia, its affiliates, or their respective Representatives or licensees shall not be liable for any direct, indirect, incidental, special, consequential, punitive or exemplary damages, including, but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses, in contract, tort, strict liability, negligence, general civil liability or any other cause of action under legal or equitable theory, relating to the Website, the information on the Website, the use of the Website, activities arising from your use of the Website, any third party materials on the Website, access to or use of any third party services available through the Website, or any materials downloaded from the Website. This limitation of liability applies, without limitation, to any damages or injury caused by any error, omission or other failure of performance by Confidia, its affiliates, business partners (including but not limited to our Financial Services Providers), agents or other subcontractors; any interruption, defect or delay in operation or transmission, including communication line failure; any computer virus; and any theft, destruction or alteration of, or unauthorised access to or use of, any electronic records.; Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above exclusions and limitations may or may not apply to you.

17. Indemnity

Notwithstanding any other term of the TOU or any act or failure to act by Confidia or its Representatives, you agree to indemnify, defend and hold harmless Confidia, its affiliates and their respective Representatives, where applicable, from and against any damages, liabilities, costs and expenses (including attorneys’ fees), claims or demands, arising out of

(a) your use of or connection to the Website, the information thereon, and the materials downloaded therefrom;

(b) your participation in any activities arising from the Website, the information thereon, or the third-party services available through the Website;

(c) your violation of, or failure to perform your obligations under the TOU, the Privacy Policy or your Client Agreement (as applicable); or (iv) your violation of any rights of a third party.

18. Governing Law and Applicable Jurisdiction

The TOU and your use of the Website shall be governed by and construed in accordance with the laws of New South Wales Australia, in force at the time, excluding any rules of private international law or the conflict of laws which would lead to the application of any other laws. Regardless of where you access the Website, you agree that any action arising out of or relating to the TOU or your use of the Website shall be filed and adjudicated only in the courts located in the EU, and you hereby irrevocably and unconditionally consent that and attorn to the exclusive jurisdiction and venue of such court over any suit, action or proceeding arising out of the TOU or your use of the Website. Notwithstanding the foregoing, Confidia shall have the right to bring action against you in courts of competent jurisdiction in the jurisdiction in which you reside, are a citizen of or are located:

(a) to seek injunctive relief against you;

(b) to obtain a judgment against you where a judgment by the court will, or may not be, enforced by the jurisdiction in which you reside or are located or

(c) to enforce a judgment obtained against you in the Australian court.

19. Law Enforcement

(a) If you are a consumer, please note that these terms of use, their subject matter, and their formation are governed by Australian law. You and we both agree that the courts of Australia will have non-exclusive jurisdiction.

(b) If you are a business, these terms of use, their subject matter, and their formation (and any non-contractual disputes or claims) are governed by Australian law. We both agree to the exclusive jurisdiction of the courts of Australia.

20. Miscellaneous Provisions

(a) The TOU, in conjunction with the Privacy Policy (where applicable), constitute the entire agreement between you and Confidia concerning your use of the Website, superseding any prior agreements between you and Confidia. Any definitions made only in the TOU shall apply equally to the Privacy Policy, and any definitions made only in the Privacy Policy shall apply equally to the TOU.

(b) Confidia shall not be liable for any failure to perform its obligations under the present TOU where such failure results from any cause beyond Confidia’s reasonable control, including, but not limited to, mechanical, electronic or communications failure or degradation.

(c) If any provision of the TOU or Privacy Policy is found by a court of competent jurisdiction to be invalid, you and Confidia nevertheless agree that the court should endeavour to give effect to the parties’ intentions as reflected in the provision and the other provisions of the TOU or Privacy Policy, as the case may be, shall remain in full force and effect.

(d) The failure of Confidia to exercise or enforce any right or provision of these TOU does not constitute a waiver of such right or provision, which will still be available to Confidia.

(e) You shall not transfer or assign any rights or obligations you have under these TOU without the prior written consent of Confidia

(f) The section titles in the TOU and Privacy Policy are for convenience only and have no legal or contractual effect.

© Confidia Limited (Australia)

Last Revised: 15 January 2024