Last updated: 11 March 2024

These Fusion Subscription Terms apply to any Fusion Order Forms agreed or renewals effected on or after 11 March 2024.

1. Definitions
   1. In this Agreement, unless the context otherwise requires:

   You and Your means the Customer detailed in the Fusion Order Form or otherwise executing this Agreement.

   Fusion, We, Us, Our means Fusion Software Development Pty Ltd ACN 161 581 200, P.O. Box 7851, Norwest 2153.

   Account(s) means any account(s) set up by You or Us through which You and Your Users access and use the Products.

   Business Days means any day which is not a Saturday or Sunday or public holiday in any part of Australia.

   Change of Control means a change in the Control of the Customer where Control is acquired directly or indirectly, in a single transaction or series of related transactions, or all or substantially all of Customer’s assets and/or voting equity shares are acquired by another entity or Customer is merged with or into another entity to form a new entity.

   Confidential Information means confidential, proprietary and commercially sensitive information (irrespective of the form or the manner in which the information is disclosed, or the time of such disclosure) including information which:

   • Is identified as confidential or ought to have been known to be confidential; and
   • Relates to the business affairs and practices, including financial information, business opportunities, business plans, business processes and methodologies,

   but does not include information, which is in, or comes into, the public domain other than by a breach of this agreement, or which is independently known to the other party as evidenced by its written record.

   Consequential Loss means any Loss that does not arise naturally in the ordinary course of things from the event or circumstance giving rise to the Loss.

   Consumer Law means the provisions of Schedule 2 to the Competition and Consumer Act 2010 (Cth), as applied under Part XI or under a law of a State or Territory of Australia, or any similar laws which may apply to this agreement.

   Control has the meaning given to that term in the Corporations Act 2001 (Cth).

   Customer Content means Customer Data, as well as all content provided by You to Fusion or input by You, Your Users, agents, nominees, and contractors into a Product in order for Fusion to provide the Products, including text, copy, images, data, graphics, or multimedia content.

   Customer Data means all information, data, materials and Personal Information and other content that You provide to Us and/or input into a Product.

   Data Processing Agreement means Fusion’s "Data Processing Agreement", as updated from time to time by Fusion.

   Fees means the fees payable for the Products, as set out in your Fusion Order Form and/or varied in accordance with these Subscription Terms.

   Force Majeure Event means any act, event or cause including earthquakes, cyclones, floods, fires, lightening, storms or other acts of God, strikes or industrial disputes, riots, terrorist acts, civil disturbances, breakages of machinery, or industrial conditions, or arising out of any other unexpected and exceptional cause, delays in transportation and dispositions or orders of governmental authority (including public health orders), which:

   • Directly or indirectly results in a party being prevented from or delayed in performing any of its obligations under this agreement; and
   • Is beyond the reasonable control of that party.

   Fusion Privacy Policy means our "Privacy Policy".

   Guarantor means the guarantor of this agreement as set out in the Order Form.

   Initial Term means the initial term You purchase the Products for, as set out in Your Fusion Order Form.

   Intellectual Property Rights means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trademarks, designs, patents, circuit layouts, plant varieties, business and domain names, confidential information, inventions and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields whether or not registered, registrable or patentable.

   Losses means any judgment, debt, damage, loss, cost, expense or liability howsoever arising and whether present or future, fixed or unascertained, actual or contingent whether at law, in equity, or otherwise.

   Order Form means Your Fusion Order Form issued by Us and that sets out the details of Your purchase of Products from Us.

   Non-Renewing Licence is set out in the Order Form.

   Payment has the meaning given to that term in clause 5.

   Payment Method means a nominated credit or debit card which We will debit, or an invoice which We will issue You, for the applicable Fees in accordance with the Payment Terms as set out in Your Order Form.

   Payment Term means the timing of payments for Fees set out in the Order Form, and which is always in advance (e.g. monthly, quarterly, biannually, or annually in advance). All invoices issued must be paid within 7 days of the date of the invoice. If you have otherwise nominated a credit or debit card, we will automatically charge the Fees to your card on the relevant due date.

   Personal Information has the meaning given to in applicable Privacy Laws.

   Privacy Laws means any laws, codes and regulations applicable to the collection, use, disclosure and/or processing of Personal Information under this agreement, including the Privacy Act 1988 (Cth) and and/or any other equivalent or similar legislation as applicable in any relevant jurisdiction.

   Product(s) means Fusion products (eg AMS Pro, AM Service, TIP and AMS ME) and services (such as training services) as set out in your Order Form and/or otherwise added in accordance with clause 3.5.

   Renewal Term means each subsequent period, following the expiration of the Initial Term, or any subsequent Renewal Term, as set out in your Fusion Order Form.

   Service Level Agreement means Fusion’s "Service Level Agreement", as updated from time to time by Fusion.

   Service Levels means the support and service levels set out in the Service Level Agreement.

   Subscription means the licence We give You, subject to Your payment of the Fees, to use Our Products during the Term.

   Subscription Terms means these terms that govern Your purchase of a Subscription to the Products and related services, which is incorporated into every Order Form.

   Taxes has the meaning given to that term in clause 5.5.

   Term means the Trial Period, Initial Term, and each applicable Renewal Term.

   Third Party Products has the meaning given to that term in clause 9.

   Users means Your employees, agents, contractors, representatives, and any other persons, entities or other third parties who are authorised, enabled or instructed by You to access and use the Products on Your behalf, whether or not they have been supplied with a user email address and password by You, or Us at Your request.

   2. In this document unless the context otherwise requires:
      • Clause and subclause headings are for reference purposes only;
      • The singular includes the plural and vice versa;
      • Where a word or phrase is defined its other grammatical forms have a corresponding meaning;
      • References to statutes include all statutes amending, consolidating or replacing such statutes;
      • $ means the lawful currency set out in the Order Form;
      • Any reference to a party to this document includes its successors and permitted assigns; and
      • The use of the word "includes" or "including" is not to be taken as limiting the meaning of the words preceding it.
2. Formation
   1. When You accept an Order Form to purchase our Products an agreement is formed between You and Fusion consisting of Your Order Form and these Subscription Terms. (Agreement).
   2. These Subscription Terms may be updated from time to time by giving You notice via email as follows:
      • Where the variation relates to or impacts Your ability to access and use the Product and/or either party’s warranties or liabilities under this agreement, We will provide You with 14 days’ notice prior to such change taking effect; and
      • All other changes will be effective from the date of notification.
3. Term, renewal and adding products
   1. The Agreement commences on the date the Order Form is accepted by Your signature or other action confirming acceptance and will continue until the Term expires or is terminated in accordance with these Subscription Terms.
   2. Your Subscription will commence on the date of Your first tax invoice for payment of the Fees and will continue until the Term expires or is terminated in accordance with these Subscription Terms.
   3. If You have a Trial Period then the Initial Term will commence if You select the Auto-Subscribe option, otherwise the Agreement will expire at the end of the Trial Period Term.
   4. Unless You select a Non-Renewing Licence, the Term will automatically renew for consecutive Renewal Terms unless You give Us notice of Your intention to not renew no later than 2 months prior to the end of the then-current Term. We will notify You of the Renewal 3 months prior to the expiry of Your then current Term. A Non-Renewing Licence will expire at the end of the Initial Term.
   5. The parties may agree to add Products to this agreement from time to time during the Term by way of an updated Order Form.
4. Fusion SD Products
   1. In consideration of Your payment of the Fees, We will provide You with access to, and use of, the Products and any training services that We have agreed with You in a timely and professional manner.
   2. You agree that:
      • You will provide Us with any information and assistance reasonably necessary to enable Us to provide You with such Products and training services, including information about Your systems, networks, infrastructure, and environments and access to Your facilities and Users; and
      • You are responsible for Your use of, or reliance on, any advice or recommendations provided by Us in connection with the Products, including but not limited to, the security and access settings that may be configured for the Products.
   3. We will provide you with the Service Levels set out in Our Service Level Agreement. Without limiting Our obligations under the Service Level Agreement, You acknowledge and agree that the Products are provided on an ‘as is’ basis, service continuity is not assured and that the Products may be suspended, unavailable or have limited availability including for routine or emergency maintenance, to permit upgrades, due to malfunctions with Your infrastructure, due to a Force Majeure Event and/or if otherwise necessary for operational and security reasons.
5. Fees and Payment
   1. You will pay the Fees in accordance with the Payment Terms and Your Payment Method and in accordance with the process set out in this clause 5 (Payment).
   2. You agree to provide Us with a valid credit card, debit card or other payment method acceptable to Us for payment of the Fees. By providing Us with a credit or debit card, You expressly authorise Us to charge You for all Fees incurred in connection with Your Account including with respect to any Renewal Term and We will automatically charge the Fees to Your card on the relevant due date and the following terms apply:
      • It is Your responsibility to ensure that Your payment and related details are valid and up to date and that sufficient funds are available to pay the Fees;
      • We are not liable for any charges You incur because of incorrect payment information and if We incur any expense due to the same, We reserve the right to seek reimbursement from You for such expense;
      • If You believe that there has been an error in charging Your nominated debit card or credit card (as applicable), You can contact Us to confirm the details of the disputed charge at accounts@fusionsd.com.au or contact Your debit card or credit card provider;
      • If We are unable to process Your Payment You authorise Us to reattempt the payment method a maximum of two times over a two-week period or on our request You must rectify such non-payment within 2 business days of a notification from Us.
   3. If We do not receive Your Payment within 14 days of any amounts that are due and payable (as specified in the Order Form), then at Our sole discretion, without limiting Our other rights and remedies under this Agreement:
      • We may suspend use of Your Account and access to the Products until all overdue amounts are paid (we will give You notice before any suspension); and
      • If any amounts that are due and payable but not received by Us within sixty (60) days from the date on which such amounts fall due We may seek payment from You via an alternative payment method (including payment for costs We incur for reattempting payment) and/or seek to recover the debt through alternative means (either directly, or through a third party) and You will be responsible for all costs and expenses incurred by Us in connection with such collection activity.
   4. We reserve the right to increase the Fees each Renewal Term. We will notify You of such increase at least 2 months prior to the expiry of Your current Term and, subject to clause 13.2, such increase will be automatically applied to the Fees owing for the applicable Renewal Term.
   5. All Fees are exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, goods and services taxes and/or any value-added, sales, use or withholding taxes, assessable by any jurisdiction unless otherwise stated (Taxes). You will be responsible for paying all Taxes associated with Your purchases of the Products. Should any payment for Our Products be subject to withholding tax by any government, You will reimburse Us for such withholding tax.
6. Account(s) and Users
   1. You must only use the Products in accordance with these Subscription Terms and at the Designated Sites.
   2. You are solely responsible for:
      • Determining Your Users and any use of the Products by Users and ensure that You and Your Users comply with these Subscription Terms (in particular, clause 6);
      • All activity on the Account(s) (including by You and/or or any Users and/or any unauthorised access by third parties);
      • Maintaining the confidentiality and security of the Account(s), including any login and password information, and notifying Us immediately of any unauthorised use;
      • Using all reasonable endeavours to prevent any unauthorised access to or use of the Products; and
      • Without limiting our security obligations under this agreement, protecting Customer Data, including backing-up, and ensuring the security of the Customer Data, and taking appropriate measures to protect Customer Data from accidental, unlawful or unauthorised access, use or disclosure.
   3. You will contact us immediately if You believe an unauthorised third party may be using or accessing the Account(s) and/or if the Account(s) information, including any login or password information is lost or stolen.
7. Acceptable Use
   1. In addition to any other obligations set out throughout these Subscription Terms, You must always access and use all Products solely for the purposes set out in this Agreement and in accordance with all applicable laws, codes, and regulations in Your jurisdiction.
   2. You must not, and must ensure that all Users do not:
      • Directly or indirectly, sell, export, re-export, transfer, divert, or otherwise provide any of the Products;
      • Copy, distribute, install, reproduce or in any way provide the Products to a third party;
      • Modify, adapt, translate, duplicate, disassemble, reverse assemble, reverse compile, reverse engineer, create any derivative works based, and/or take similar action with respect to the Products;
      • Use the Products for any activity of an illegal or fraudulent nature, or to violate any law and/or in a manner that infringes the rights (including Intellectual Property Rights) of any third party;
      • Transmit, publish or communicate material which is defamatory, offensive, abusive, indecent, menacing or unwanted;
      • Distribute viruses, corrupt files, or any other similar software or programs that may damage the operation of any computer hardware or software, including the Products;
      • Allow, permit or enable any unauthorised use of the Products;
      • Engage in conduct which, in our reasonable opinion, could be reasonably expected to adversely affect our reputation or result in a liability to Us; and/or
      • Conduct or attempt to conduct web scraping of any part of our websites and/or the Products, including any content contained within or hosted on the Products.
   3. Without limiting any other rights or remedies that may be available to Us, if You fail to comply with this clause, We reserve the right to immediately suspend Your Account(s) and/or Your access to the Products, without liability for Us (to the extent permitted by law). We are also entitled to immediately remove any content you upload, post, host or transmit that we consider or suspect to be in breach of this Agreement, without prior notice to You and without liability for Us (to the extent permitted by law).
8. Intellectual Property
   1. You acknowledge and agree that We own all rights (including Intellectual Property Rights), title and interests in and to the Products (including any underlying software and code and/or any modifications, derivative versions, or developments of the Products) and/or any of Our materials or documentation (whether pre-existing or created for You and/or Your User) but excluding Your Customer Content.
   2. We grant to You a limited, non-exclusive, non-transferable, revocable licence to access the Subscription to use the Products solely to the extent permitted by this Agreement and as is necessary to obtain the benefit of the Products for the duration of the Term. Any rights not expressly granted under this Agreement are reserved by Fusion.
   3. Without limiting any rights granted to Us in this Agreement You own all right, title and interest in the Customer Content. You are also solely responsible for Your Customer Content, including its integrity, accuracy, and completeness, ensuring You have the right to use and transmit the Customer Content (including that such use does not breach any third party rights), ensuring it is free from anything harmful (such as a virus) and complying with any applicable laws in respect of Your Customer Content.
   4. You grant Us the following rights and licences in and to Your Customer Content:
      • A royalty-free, non-exclusive, and sublicensable licence during the Term, to use Customer Content (including any Intellectual Property Rights in and to Customer Content) to the extent necessary to perform our obligations under this Agreement. This licence includes the right to give third parties access to, and a right to use, the Customer Content for purposes related to our Products.
      • A non-exclusive, worldwide, royalty free, assignable, perpetual, irrevocable, and sublicensable licence to copy, use and analyse non-Confidential Information and Customer Content for any purpose related to Our business and the Products, provided that We do not publicly disclose any Confidential Information, Personal Information or other information which identifies You as a customer. This licence includes the right to permit third parties to do the same, subject to the same restrictions set out in this clause.
9. Third Party Products

   We may use third party products when providing Our Products, including integrating such third party products into our Products (Third Party Products), subject to the following:

   • Your use of, and access to, the Third Party Products may be subject to additional fees and separate terms. We will not incur any such fees without Your prior approval. However, where You do not provide approval, We may not be able to provide You with certain integrations or functionalities. The separate terms will form a separate agreement between You and the supplier of the relevant Third Party Product;
   • Fusion makes no representations or warranties in relation to, and does not accept liability for, any Third Party Products and will suspend Your use of, or access to the Third Party Products on request from the supplier of the relevant Third Party Product.
10. Confidentiality
    1. A party will not disclose the Confidential Information of the other party to any third party, except:
       • For the purposes of providing, or using, the Products and fulfilling any obligations under this Agreement;
       • Where a party is required to do so under any law, code or regulation and/or any listing rules of any stock exchange, including disclosure to any third parties in order for them to comply with the same;
       • To the party’s employees, subcontractors, representatives, or advisors on a need-to-know basis; and/or
       • With the other party’s consent.
    2. Each party must have appropriate security measures in place that are designed to protect Confidential Information against unauthorised access, disclosure or use.
11. Privacy
    1. Each party will comply with all applicable Privacy Laws when collecting, handling, storing, disclosing, or otherwise using any Personal Information in connection with this Agreement.
    2. You must ensure that You seek and obtain all necessary consents from, and make all necessary disclosures to, customers in respect of their Personal Information to enable disclosure of such information to Fusion for the purpose of the provision of our Products, to the extent such disclosure is permitted by any applicable laws.
    3. You further acknowledge and agree that Our collection and use of Personal Information under this Agreement is governed by the Fusion Privacy Policy, and You will ensure that We can process and use Personal Information that You disclose to us under this agreement in accordance with our Privacy Policy.
    4. Where the Customer is based in the European Economic Area or the United Kingdom, in addition to this clause 11, the Data Processing Agreement will also apply to the processing of Personal Information under this agreement.
12. Marketing
    1. You consent to Us using Your company name and logo:
       • To describe the circumstances of Your use of the Products, on an ongoing and irrevocable basis, where We are required to do so under any law, code or regulation and/or any listing rules of any stock exchange (as applicable); and
       • As a reference for marketing or promotional purposes on Our website and in other public or private communications with Our existing or potential customers.
13. Termination
    1. Either party may terminate this Agreement (either in full, or in part in respect of a specific Product) on written notice before the expiration of the Term where any of the following events occurs:
       • The other party breaches any of the terms of this Agreement and the breach is not capable of remedy or, is capable or remedy and it has not been remedied within 60 days of receiving written notice of the breach;
       • If the other party ceases to operate, becomes insolvent, enters liquidation, files for bankruptcy, makes an assignment for the benefit of creditors, appoints a receiver, or is subject to any similar action.
    2. You may also terminate this Agreement on written notice as follows:
       • If You do not agree to any increased Fee as notified under clause 5.4, subject to You issuing Us a termination notice prior to the expiry of Your then current Term. If You do not issue the notice and continue to use the Products, then You are deemed to have accepted the increase and the Agreement will continue. Where You terminate the Agreement under this clause, it will be effective at the end of the then current Term.
       • If You do not agree to a proposed change to these Subscription Terms as notified under clause 2.2, subject to You issuing Us a termination notice within 14 days of Our notice. If You do not issue the notice and continue to use the Products, you are deemed to have accepted the proposed change and the Agreement will continue as amended.
    3. If You undergo a Change of Control, then You must notify Us within 10 days of that Change of control taking effect. We may, in Our sole discretion, terminate this Agreement where You undergo a Change of Control.
14. Effect of Termination
    1. Where this Agreement is only terminated in part in respect of a specific Product, the Agreement will continue in full force and effect in respect of all other Products.
    2. On termination of this Agreement by either party (in whole or in part), subject to any terms of this Agreement that permits otherwise:
       • Each party must, on request, return or securely destroy all Confidential Information in that party’s control;
       • You will no longer have any right to use, copy or access (or to permit any other person to use, copy or access) any of the Products (in whole or in part), or any other information or materials that We make available to You under this Agreement, including our Confidential Information; and
       • Without limiting clause 14.3, You must immediately pay any and all outstanding Fees owed for Product usage as at the date of termination.
    3. We terminate this Agreement in accordance with clause 13.1 or 13.3, within 7 days of the effective date of termination, You must pay to Us all outstanding Fees for the remainder of Your Term which You acknowledge and agree is a genuine pre-estimate of Our loss for early termination and where You have nominated a debit or credit card, You agree that We may charge such unpaid fees to Your credit or debit card or bank account on file. You may not unilaterally revoke prior consent authorising Us to charge the credit or debit card on file to avoid paying the balance due.
    4. Following the expiry or termination of this Agreement:
       • You may request that We send You a copy of Your Customer Data which We will comply with in a reasonable timeframe, however, You will no longer have access to your Account and therefore Your Customer Data; and
       • Subject to 14.4(a), We reserve the right to, at our discretion either retain a copy of Customer Data and/or delete Customer Data following such expiry or termination.
15. Warranties
    1. We warrant and represent that the Products (excluding Customer Content), as provided by Us and used in accordance with this Agreement and Our instructions and policies, do not, or will not, infringe the Intellectual Property Rights of any third party.
    2. You warrant and represent that the Customer Content does not, or will not, infringe the Intellectual Property Rights of any third party and that You comply with clause 11.2 in respect of Personal Information.
    3. Subject to any express warranties in this Agreement but otherwise to the fullest extent permitted by law:
       • We exclude all warranties, conditions and representations in whatever form, relating to the Products, including any warranties or representations relating to quality, accuracy, integration, merchantability, conformity with specifications, reliability, functionality, performance, fitness for use, and/or the security and operation of the Products, including that the Products will produce any particular outcomes for You and/or that it will be bug or error free; and
       • That no advice or information, whether oral or written, obtained by You from Us or through or from the Products or under this Agreement shall create any warranty not expressly stated in this Agreement in any manner.
16. Indemnity
    1. You indemnify Us and Our directors, officers, employees, affiliates, agents, contractors, principals, or licensors (our indemnified parties) from and against any Loss suffered or incurred by Our indemnified parties as an indirect or direct result of Your:
       • Breach of these Subscription Terms, any payment obligations under the Agreement, and/or any applicable laws; and/or
       • Customer Content; and/or
       • Your negligent or fraudulent acts or omissions and/or wilful misconduct; and/or

       Third party claims arising out of or in connection with any of the items set out in clauses 16(a) – 16(c) above.

17. Liability
    1. Notwithstanding any other provision of this Agreement and to the fullest extent permitted by law, the parties agree to the following limitation on liability:
       • We are not liable to You, whether such liability is based on breach of contract, tort (including negligence), statute or otherwise for any:
         • Consequential Loss, indirect, incidental, punitive or special Losses of any kind (including loss of profit, loss of opportunities or business interruption or in connection with denial of access to or deletion of Customer Data in accordance clause 14.4); and/or
         • Customer Content, including any errors, omissions, Losses or damages of any kind resulting directly or indirectly from any inaccuracies or incompleteness in Customer Content.
       • Our sole liability for loss or corruption of data (including Customer Data) is limited to restoring such data to the last useable backup, where applicable.
       • The aggregate liability of a party in connection with this Agreement whether in contract, tort (including negligence), statute or otherwise will not exceed the Fees paid by You in the 6-month period preceding the event giving rise to any claim or liability.
    2. The limitation on liability set out in clause 17.1(c) does not apply in respect of Your:
       • Breach of clause 11;
       • Indemnity at clause 16; and/or
       • Obligation to pay Us any Fees under this Agreement, including any Loss that We suffer as because of Your failure to pay Us such Fees.
    3. If any supply by Us pursuant to this Agreement comprises a supply to a ‘consumer’ as defined in the Consumer Law, then nothing contained in this Agreement restricts or modifies guarantee, right or remedy which pursuant to the Consumer Law applies to this Agreement or is conferred on You, provided that to the extent that the Consumer Law permits Us to limit its liability for breach of guarantee imposed by the Consumer Law, then to the extent permitted by the Consumer Law, Our liability for such breach is limited to the following as determined by us:
       • The supplying of the services again; or
       • The payment of the cost of having the services supplied again.
18. Dispute Resolution
    1. Any party who claims to have a dispute against another party under this Agreement, including any controversy or claim arising out of, relating to or in connection with this Agreement, including any question regarding its existence, validity or termination, must issue a notice to the other party claiming a dispute has arisen, setting out the nature of the dispute and all other information relevant to the dispute (Dispute Notice).
    2. Within 7 days after receiving the Dispute Notice, the parties must meet (or otherwise communicate) to resolve the dispute. Each party will be represented by a person having authority to agree to such a resolution. All aspects of the meetings will be confidential and without prejudice to the parties’ rights, obligations and liabilities.
    3. If the parties do not resolve the dispute within 30 days (or such longer period the parties may agree in writing) after the date of issue of the Dispute Notice, the parties agree to refer the dispute to arbitration in accordance with the ACICA Arbitration Rules. The seat of arbitration shall be Sydney, Australia.
    4. Despite the existence of a dispute, each party must continue to perform its obligations under the agreement unless those obligations are the subject of the dispute.
    5. You acknowledge and agree that the Dispute Resolution clause set out in clause 18 does not limit Our rights at clause 5.3.
19. Notices
    1. Subject to clause 19.2, notices under this Agreement must be sent in writing and to the addressee’s email address as set out in the Order Form. A notice is deemed to have been received within 24 hours after the message has been sent (as recorded on the device from which the sender sent the message).
    2. We may issue You communications regarding the Product, these Subscription Terms and/or Your Account via Your Account from time to time.
20. Guarantee
    1. Where a Guarantor is marked as applicable in the Order Form, the following clauses apply.
    2. In consideration of Fusion, at the request of the Guarantor, entering into this Agreement with the Customer, the Guarantor acknowledges and agrees as follows on a continuing basis throughout the Term:
       • The Guarantor is jointly and severally liable with the Customer for the payment of all Fees owed, and the performance of each of the Customer’s obligations, under this Agreement;
       • The Guarantor indemnifies Fusion against all Losses and Consequential Losses that Fusion may incur due to any breach by the Customer of this Agreement, including any damages following termination of this Agreement because of such breach. The Guarantor remains liable despite:
         • Fusion having exercised any of its rights under this Agreement;
         • The Customer being, or being in the process of becoming, insolvent; or
         • All or part of this Agreement or guarantee being unenforceable.
       • The indemnity and liability of the Guarantor will not be affected by the waiver or variation to this Agreement or the Customer's rights under it, an assignment of this Agreement or any failure by Fusion to enforce its rights under this Agreement.
       • If the Customer (being a company) is dissolved, or the Customer enters into liquidation or bankruptcy and the liquidator or trustee in bankruptcy disclaims this agreement, the Guarantor will purchase the relevant Product(s) from Fusion for a term equal to the unexpired portion of the then current Term and on the same terms and conditions of this Agreement. The Guarantor must pay Fusion's costs of, and incidental to, the preparation, execution and registration of the new Agreement.
21. General
    1. Nothing in this Agreement will be taken as giving rise to a relationship of employment, agency, partnership or joint venture. Except as otherwise provided in this Agreement, the parties acknowledge and agree that neither party will have any authority to bind the other party or to enter into an Agreement in the name of the other party.
    2. We may subcontract the performance of any part of our obligations and/or services to any third party.
    3. This Agreement may not be assigned, sublicensed or otherwise transferred by You, whether by operation of law or otherwise, without our prior written consent, such consent not to be unreasonably withheld or delayed. We may assign, sublicence or otherwise transfer this Agreement at any time without Your consent.
    4. This Agreement contains the entire understanding between the parties concerning the subject matter of the Agreement and supersedes all prior communications.
    5. The failure of either party to enforce any provisions under this Agreement will not waive the right of such party thereafter to enforce any such provisions.
    6. If any term or provision of this Agreement is held by a court to be illegal, invalid or unenforceable under the applicable law, that term or provision will be severed from this Agreement and the remaining terms and conditions will be unaffected.
    7. This Agreement may be executed in any number of counterparts and all counterparts taken together will constitute one document.
    8. Each party agrees that this agreement may be electronically signed, and that any electronic signatures appearing on this Agreement are the same as handwritten signatures for the purposes of validity, enforceability, and admissibility.
    9. Any warranty, indemnity, or obligation of confidentiality in this Agreement will survive termination. Any other term which by its nature is intended to survive termination of this Agreement survives termination of this Agreement.
    10. This Agreement is governed by, and construed in accordance with, the laws of New South Wales, Australia.