1. General Terms
1.1. These Terms and Conditions govern the provision and use of the API offered by MYP Corporation Pty Ltd ACN 131 264 465 (MYP Corporation) to the Customer as specified in the Service Agreement (collectively the Services).
1.2. In the event of any inconsistency between the terms of these Terms and Conditions and the Service Agreement, the terms of the Service Agreement will prevail to the extent of the inconsistency.
1.3. These Terms and Conditions apply in addition to and do not derogate from any other terms and conditions on the Website that expressly apply to the use of the Website, or any other product or services accessed or supplied from, via or by MYP Corporation or the Website.
1.4. In the event of any inconsistency between these Terms and Conditions and any other terms and conditions on the Website which may apply, these Terms and Conditions will prevail to the extent of the inconsistency.
1.5. These Terms and Conditions relate solely to the use of MYP Corporation’s APIs. They are supplementary to all other terms and conditions on the Website which may apply.
2. Definitions and Interpretation
2.1. Definitions
In these Terms and Conditions, unless the context indicates otherwise:
(a) Agreement has the meaning given to that term in clause 3.1 of these Terms and Conditions.
(b) Australian Consumer Law means the Australian Consumer Law contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth) (Australia).
(c) Background Material means pre-existing materials, know-how, methodologies, code, processes and systems developed by or licensed to MYP Corporation.
(d) Business Day means a day that is not a Saturday, Sunday or a public holiday in Australia.
(e) Business Hours means the hours from 9.00am to 5.00pm on a Business Day.
(f) Confidential Information means all information and matters (whether oral or written or electronically stored) which is not publicly available relating to any one or more of MYP Corporation and the affairs and businesses of MYP Corporation including without limitation:
(i) the API;
(ii) the Services;
(iii) financial information;
(iv) purchaser information, including matters and affairs and any compilation of past, existing or prospective purchasers, or related information about actual or prospective purchasers;
(v) information about or relating to MYP Corporation;
(vi) intellectual property of MYP Corporation;
(vii) any trade secrets, ideas, know-how, concepts or information relating to the operation of any business or operation of MYP Corporation, the technology or financial position, organisation or arrangements or any dealings, investments, transactions or affairs of MYP Corporation including, without limitation, marketing methods and supply arrangements of MYP Corporation;
(viii) third party information of a confidential nature, in the MYP Corporation’s possession, power or control;
(ix) the terms of, and arrangements contemplated by, the Agreement.
(g) Customer means the customer identified in the Service Agreement.
(h) Data means all electronic data, information, figures and details relating of the Customer or the activities of the Customer’s clients and/or customers, including but not limited to data relating to the following:
– Financial information such as revenues, expenses, assets, liabilities, profits and losses.
– Geographical information such as business premises location, market segment dispersion.
– Customer and client information such as type of business, industry or sector size, location, services and products which they acquire.
– Marketing information, such as marketing methods, referrals, costs.
– Supplier information, such as type of business, industry or sector, size, location, services and products they supply.
– Anything else provided by the Customer to, or input, stored or transmitted by or on behalf of the Customer through the Services or the API, including data uploaded by the Customer to the API.
(i) Data Notice has the meaning given to that term in clause 5.11 of these Terms and Conditions.
(j) Defaulting Party has the meaning given to that term in clause 14.7.1 of these Terms and Conditions.
(k) Dispute has the meaning given to that term in clause 12.1 of these Terms and Conditions.
(l) Dispute Notice has the meaning given to that term in clause 12.3 of these Terms and Conditions.
(m) Effective Date means the earlier of the following dates:
(i) the date the Customer accepts the Service Agreement; or
(ii) the date the Customer first accesses the Services.
(n) Fees means the total of all amounts payable by the Customer to MYP Corporation under the Service Agreement for the Services.
(o) Force Majeure Event means, in respect of a party, any event or circumstance beyond that party’s reasonable control which prevents or materially hinders the performance of its obligations under the Agreement, including fire, storm, flood, earthquake, explosion, war, invasion, rebellion, sabotage, epidemic, labour dispute or shortage, failure or delay in transportation, or any act or omission (including any law, regulation, disapproval or failure to approve) of any third person not within the control of that party (including, but not limited to, subcontractors, customers, governments or government agencies).
(p) GST means goods and services tax or similar value added tax levied or imposed in Australia pursuant to the GST Law or otherwise on a supply.
(q) GST Law means A New Tax System (Goods and Services Tax) Act 1999 (Cht) (Australia).
(r) Initial Term is the period specified in the Services Agreement.
(s) Insolvent means:
(i) in the case of a natural person, that person becoming an “insolvent under administration” as that term is defined in the Corporations Act 2001 (Cth);
(ii) in the case of a corporation, that corporation becoming:
a. an “externally-administered body corporate” as that term is defined in the Corporations Act 2001 (Cth);
b. unable to pay its debts as and when they fall due;
c. insolvent or deemed to be insolvent under the Corporations Act 2001 (Cth); or
d. subject to a scheme of arrangement or official management pursuant to the Corporations Act 2001 (Cth); or
(iii) in any other case, any event analogous to any of the foregoing.
(t) Intellectual Property means any industrial or intellectual property rights, whether registrable or not, including all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trade marks, brand names, business names, domain names, and other forms of intellectual property in any part of the world, and including applications for the registration of any such rights and any improvements, enhancements or modifications to such registrations, including provided under the Copyright Act 1968 (Cht) (Australia), Patents Act 1990 (Cht) (Australia), Trade Marks Act 1995 (Cht) (Australia) or any other Australian legislation, present or enacted in the future, pertaining to rights of intellectual property, and all other proprietary rights and all other intellectual property defined in Article 2 of the Convention establishing the World Intellectual Property Organisation (July 1967).
(u) Malicious Code means any harmful program, code or device that, when operating as intended, is designed to cause:
(iv) corruption, unauthorised access to, or loss of data stored or processed by the Services; or
(v) the disruption, disabling or cessation of processing of the Services or Software or any related hardware or software.
(v) MYP Corporation has the meaning given to that term in clause 1.1 of these Terms and Conditions.
(w) Non-Defaulting Party has the meaning given to that term in clause 14.7.1 of these Terms and Conditions.
(x) Objectionable Material means any material referred to in clauses 7.3.3,7.3.7, 7.3.8,7.3.13, or 7.3.14 of these Terms and Conditions.
(y) Outages means those occasions when MYP Corporation or other third parties perform remedial work in the form of maintenance, upgrades or repairs to the Services or API, such that all or part of the Services or API is not available for Customer use or access.
(z) Payment Method means that method by which MYP Corporation will accept payment of the Fees from the Customer.
(aa) Payment Terms means the terms of payment of the Fees by a Customer to MYP Corporation, as specified in the Service Agreement and as varied from time to time in accordance with the terms of the Agreement.
(bb) Personal Information has the same meaning given to the term by the Privacy Act.
(cc) Platform means the MYP Corporation platform though which the Services are accessible.
(dd) Price Adjustment Notice Period has the meaning given to that term in clause 5.4 of these Terms and Conditions.
(ee) Privacy Act means the Privacy Act 1988 (Cth) (Australia).
(ff) Privacy Policy means the MYP Corporation privacy policy available at: Privacy Policy – MYP Technologies.
(gg) Privacy Laws means, to the extent applicable:
(i) the Privacy Act; and
(ii) any other legislation, principles, industry codes and policies relating to the collection, use, disclosure, storage or granting of access rights to Personal Information.
(hh) Renewal Period means the period set out in the Service Agreement by which the Services shall renew.
(ii) Service Agreement means the service agreement between MYP Corporation and the Customer for the Services which incorporates these Terms and Conditions and records the Services to be provided by MYP Corporation to the Customer.
(jj) Services has the meaning given to that term in clause 1.1 of these Terms and Conditions.
(kk) Suspension Notice has the meaning given to that term in clause 14.1.1 of these Terms and Conditions.
(ll) Term means the term of the Agreement as determined in accordance with clause 3.1 of these Terms and Conditions.
(mm) Terms and Conditions means these Terms and Conditions.
(nn) Termination Notice Period has the meaning given to that term in clause 14.4.1 of these Terms and Conditions.
(oo) Unauthorised Use means any use or misuse of the API by the Customer or any User that is not expressly permitted by this Agreement, including any use that:
(i) occurs other than in accordance with this Agreement;
(ii) degrades, disrupts or interferes with the operation or performance of the API or the use of the API by other users, or places, or may place, MYP Corporation in actual or potential breach of any agreement with a third party;
(iii) introduces, transmits or disseminates, whether knowingly or unknowingly, any virus, trojan horse, malware or other malicious, harmful or disabling code, data or program into or through the API;
(iv) interferes with, disrupts, or attempts to gain unauthorised access to, any computer system, software, network or account associated with the API;
(v) involves creating a false identity or otherwise misleading any person as to the identity, source or origin of any communication made through the API;
(vi) uses or accesses any data made available through the API to develop, publish or provide any product or service that competes with the API or any product or service offered by MYP Corporation.
(pp) User means an individual authorised by the Customer, and approved by MYP Corporation, to access and use the Services or the API in accordance with the Agreement.
(qq) Website means the webpages made available by MYP Corporation at [https://mypcorp.com.au/](https://mypcorp.com.au/).
2.2. Interpretation
In these Terms and Conditions, unless the context indicates otherwise:
(a) a reference to a party to an agreement or document includes that party’s executors, administrators, successors and permitted assigns;
(b) a reference to a clause, schedule or annexure is a reference to a clause of, or schedule or annexure to these Terms and Conditions;
(c) a reference to an agreement or document (including these Terms and Conditions) is to the agreement or document as amended, supplemented, novated or replaced;
(d) a reference to legislation or to a provision of legislation includes a consolidation, amendment, re-enactment or replacement of it and a regulation or other instrument issued under it;
(e) the singular includes the plural and vice versa;
(f) a gender includes all genders;
(g) a reference to a person includes a firm, body corporate, association, trust, partnership, government or governmental body or other legal entity;
(h) where a word or phrase is defined in these Terms and Conditions, other grammatical forms of that word or phrase have a corresponding meaning;
(i) headings in these Terms and Conditions are for convenience only and do not affect its interpretation;
(j) neither these Terms and Conditions nor any part of it is to be construed against a party on the basis that the party or its lawyers were responsible for its drafting or because a party relies on these Terms and Conditions or any part of it to protect itself;
(k) a reference to time is to Brisbane time;
(l) a reference to a body, whether statutory or not, which ceases to exist or whose powers or functions are transferred to another body is a reference to the body that replaces it or that substantially succeeds that body;
(m) any agreement, representation, warranty or indemnity by two or more parties (including where two or more persons are included in the same defined term) binds them jointly and severally;
(n) any right, entitlement, benefit, agreement, representation, warranty or indemnity in favour of two or more parties (including where two or more persons are included in the same defined term) is for the benefit of them jointly and severally;
(o) a reference to dollars or $ is to an amount in Australian currency unless denominated otherwise;
(p) a reference after the words “include” or “for example” or similar expressions does not limit what else is included; and
(q) a party which is a trustee is bound both personally and in its capacity as a trustee.
3. Term
3.1. On and from the Effective Date, these Terms and Conditions constitute a legally binding agreement, together with the Service Agreement, between MYP Corporation and the Customer (Agreement). Subject to clause 3.2, the Agreement will continue until terminated in accordance with these Terms and Conditions.
3.2. The minimum term for the Services is the Initial Term. At the expiry of the Initial Term, the Agreement will continue until terminated in accordance with these Terms and Conditions.
4. Services
Provision of Services
4.1. In consideration of the Customer paying the Fees and otherwise complying with its obligations under the Agreement, MYP Corporation agrees to provide the Services to the Customer during the Term subject to the Agreement.
4.2. MYP Corporation must perform the Services in a professional manner in accordance with industry-accepted professional standards and in accordance with the API Compatibility Policy and Deprecation Policy. MYP Corporation will not, however, be liable for any delay in the performance of Services, non-performance of the Services and or failure of, or defects in, the Services to the extent that such delay, non-performance, failure or defect is caused by or is attributable to the Customer or any third party.
Customer Use of Services
4.3. The Customer acknowledges and agrees that:
4.3.1.The API is purchased as it exists at the Effective Date and is not contingent on the provision of any future functionality, features or enhancements.
4.3.2.The Customer has not relied on, and shall have no claim in relation to, any statement (whether oral or written, public or otherwise) made by MYP Corporation about future functionality or features, except to the extent such statements form part of the express terms of the Agreement.
4.3.3.MYP Corporation may, from time to time, offer additional or enhanced functionality in connection with the API, which may be subject to additional Fees, provided that nothing in this clause limits any rights or remedies that the Customer may have under the Australian Consumer Law.
4.3.4.MYP Corporation may make changes or updates to the functionality and/or documentation of the API from time to time and will promptly advise the Customer in writing of any such changes or updates via the publication of updates on the Website.
4.4. MYP Corporation, or a third party designated by MYP Corporation, may during Business Hours and on reasonable advance notice describing the purpose and scope of the request, in a manner that does not unreasonably interfere with the business operations of the Customer, audit the Customer’s use of or access to the API to verify compliance by the Customer with the provisions of the Agreement.
5. Fees for the Services
5.1. The Customer must pay MYP Corporation the Fees set out in the Service Agreement during the Term via the Payment Method on the Payment Terms.
5.2. The Customer must pay all applicable taxes, levies, duties and charges (including any sales, use, value-added, import, export or similar taxes) imposed in connection with the Services, and these must be paid by the Customer at the same time as the Fees set out in the relevant tax invoice.
5.3. Where the Initial Term is more than 12 months, Fees are subject to indexation and shall be varied accordingly. The relevant adjustment shall be:
5.3.1.applied from the first and each subsequent anniversary of the commencement of the Term; and
5.3.2.determined by multiplying the relevant Fee by the percentage increase or change in the Australian Consumer Price Index published for the 12 months ended on the date which is 3 months immediately preceding the relevant adjustment or by 2% (whichever amount is higher).
5.4. MYP Corporation may, by giving the Customer at least fourteen (14) days’ written notice (Price Adjustment Notice Period), adjust the Fees (including for the avoidance of doubt the Subscription Fee) in any of the following circumstances:
5.4.1.where there is an increase in the costs incurred by MYP Corporation in providing the Services, to the extent those costs form part of the relevant Fee;
5.4.2.where the Initial Term is less than 12 months, as part of an annual adjustment of any monthly Fee, with effect from 1 July in any year;
5.4.3.where any industry resolution, change in law or regulation results in an increase in the cost to MYP Corporation of providing the Services; or
5.4.4.at the start of each Renewal Period.
5.5. If the Customer does not agree to the adjusted Fee, the Customer may terminate the Agreement without penalty by providing written notice to MYP Corporation before the end of the Price Adjustment Notice Period. The Customer’s continued use of the Services after the Price Adjustment Notice Period will be deemed to be acceptance of the amended Fee.
5.6. The Customer is responsible for notifying MYP Corporation of changes to its billing contacts.
5.7. Any Fees not paid by the due date will be subject to a late payment charge equal to 1.5% per month. All costs incurred by MYP Corporation due to late payment of Fees and debt collection must be paid by the Customer to MYP Corporation.
5.8. Except to the extent required by the Australian Consumer Law and subject to the terms of the Agreement, Fees are non-refundable. Nothing in these Terms and Conditions purports to exclude, restrict or modify any non-excludable rights under the Australian Consumer Law.
5.9. Subject to clause 5.10, all payments required to be made by the Customer under the Agreement must be made free of any set-off, or counterclaim and without deduction or withholding, unless agreed to by MYP Corporation in writing or as required by law.
5.10. In the event of the Customer disputing an invoice for Fees, the Customer must make payment in respect of any undisputed amount by the specified due date and raise a dispute with MYP Corporation as soon as practicable in accordance with clause 12.
5.11. Where the Agreement is terminated by either party, the Customer may provide written notice to MYP Corporation (Data Notice) for MYP Corporation to provide a copy of any Customer Data held by MYP Corporation to the Customer in the format elected by MYP Corporation within thirty (30) days of the Data Notice and at a fee specified in writing by MYP Corporation to the Customer within seven (7) days of the Data Notice.
6. Force Majeure
6.1. Neither party is liable to the other party in respect of the results of any delay or failure to perform its obligations pursuant to the Agreement if the delay or failure is caused by a Force Majeure Event.
6.2. The performance of the obligations of a party will be suspended for the period of a Force Majeure Event.
6.3. If a delay or failure of MYP Corporation to perform the obligations of MYP Corporation under the Agreement due to a Force Majeure Event exceeds forty-five (45) Business Days, the Customer may immediately terminate the Agreement on providing notice in writing to MYP Corporation.
6.4. If the Agreement is terminated pursuant to this clause 6, MYP Corporation must refund Fees previously paid by the Customer pursuant to the Agreement for Services not yet provided by MYP Corporation to the Customer.
7. Access and Reasonable Use
7.1. Subject to the terms of the Agreement, MYP Corporation grants the Customer a non-exclusive and non-transferable licence during the Term to access and use the API.
7.2. During the Term, the Customer is solely responsible for selecting, suppling, configuring and maintaining, at its own expense, all external hardware.
7.3. The Customer must not (and must not allow any User or third party to):
7.3.1.Sublicense, rent, lease, assign or permit a third party to access the API or the Services.
7.3.2.Use the Services or API in an irresponsible manner or in such a way that does not consider the effects its use may have on other users.
7.3.3.Use the Services or API for any unlawful, illegal, malicious or improper purpose or to conduct or promote anything that is illegal.
7.3.4.Use the Services or API in a manner which interferes with the availability of the services for other customers or users or otherwise interferes with the proper operation of the services or any other network, computer system or the use of any of them.
7.3.5.Disclose or misuse Confidential Information or Personal Information.
7.3.6.Use the Services or API to enable a minor to access material inappropriate for a minor.
7.3.7.Use the Service or API to harass, threaten or menace any person or cause damage or injury to any person or property.
7.3.8.Breach any laws, infringe any third party rights (including without limitation, Intellectual Property Rights) or breach or infringe any standards, content requirements or codes promulgated by any relevant authority.
7.3.9.Impersonate another person or use another’s name, user name, password or account.
7.3.10. Expose MYP Corporation to the risk of any legal or administrative action including prosecution under any law.
7.3.11. Reverse engineer or attempt to derive the source code of the API
7.3.12. Use the Services or API to build a competing product.
7.3.13. Send or store material that is infringing, obscene, threatening or otherwise unlawful, including material that is harmful to children or infringes third-party privacy rights.
7.3.14. Send or store any Malicious Code.
7.3.15. Interfere with or disrupt the integrity, security or performance of the API or any data contained in the API.
7.3.16. Attempt to gain unauthorised access to or use of and take all steps necessary to prevent others from gaining unauthorised access to or use of, the Services or API or related software, systems or networks and shall use reasonable endeavours to assist MYP Corporation at its request in the identification and prevention of unauthorised use or access.
7.3.17. Do anything to circumvent Fees payable for individual licenses, for example but not limited to doing anything that would provide additional users access to the Services without having to register users.
7.4. The Customer must ensure that Users do not submit any Objectionable Material.
7.5. The Customer warrants that:
7.5.1.It has relied on its own judgment and experience in entering into the Agreement.
7.5.2.In entering into the Agreement, it has not relied on any representation made by MYP Corporation other than as expressly stated in the Agreement, or on any descriptions, illustrations or specifications contained on the Website or in any advertising material provided by MYP Corporation.
7.5.3.All information it has provided to MYP Corporation is, to the best of its knowledge, true in all respects and is not misleading.
7.5.4.The Customer and its Users are not minors.
7.5.5.It has the authority to, and has taken all action necessary to, enter into and perform the Agreement, including approval from any and all clients, customers, businesses, and persons whose data is provided to or entered into MYP Corporation’s API and Services.
7.5.6.The Agreement is valid and binding and the Customer is not aware of any circumstances that would make the Agreement unenforceable.
7.6. The Customer must, at its own expense, maintain adequate security measures to safeguard the Services and API from access or use by unauthorised persons and taking all other reasonable measures to limit and protect access to the Services and API from unauthorised persons and Unauthorised Use.
7.7. The Customer must ensure it has sufficient protection in place, at its own expense, to protect the Services and API from Attack and to prevent circulation of Attacks through the Services and API, including, but not limited to, such measures as firewalls, policies regarding email attachments, and up to date virus scanning software.
7.8. The Customer must at its own expense comply with all applicable laws relating to data protection, export, spam and all Privacy Laws, restrictions and regulations, and must refrain from directly or indirectly using the Services or the API in violation of any such restrictions, laws or regulations.
7.9. MYP Corporation may adopt rules governing permitted and appropriate use of the API and Services and MYP Corporation may update those rules from time to time by publishing them on the Website. The Customer will be bound by any such rules.
7.10. MYP Corporation may remove any Data that constitutes Objectionable Material or that breaches any MYP Corporation rules governing permitted and appropriate use of the API and Services but is not obligated to do so.
7.11. MYP Corporation may suspend or terminate, with immediate effect, any Customer for activity that:
7.11.1. Disrupts or causes harm to MYP Corporation’s computers, systems or infrastructure or to third parties.
7.11.2. Breaches applicable law, including laws relating to unsolicited commercial messages.
8. Subcontracting
8.1. MYP Corporation may assign or subcontract the performance of any part of the Services or API, provided that MYP Corporation remains responsible for the acts and omissions of its assignees and subcontractors.
9. Confidentiality
9.1. Subject to clause 9.2, each party must keep the other party’s Confidential Information confidential and must not deal with it in any way that might prejudice its confidentiality, except as required by law.
9.2. Neither party may disclose the Confidential Information to third parties (aside from its professional advisors or where required by law) without prior written consent of the other party.
9.3. The obligations in this clause 9 survive termination of the Agreement.
10. Privacy and IT Security Measures
10.1. The Privacy Policy explains how personal information is collected and managed in accordance with Privacy Laws.
10.2. Subject to Clause 10.3, MYP Corporation will:
10.2.1. Only collect, use, store, or disclose Data as necessary to provide the Services or as required by law.
10.2.2. Handle all Data and Personal Information in accordance with its Privacy Policy.
10.2.3. Without any notice or liability whatsoever to the Customer, inhibit access to the Services or the API if any government authority so requires or requests.
10.2.4. From time to time on reasonable notice to the Customer, schedule downtime for maintenance, upgrading, testing or repairing of any component of the Services or Website or API without liability to the Customer or any third party.
10.2.5. In its sole discretion and where reasonably necessary to protect its business interests, modify, remove, reconfigure, discontinue, replace, substitute, upgrade or enhance any function, component of, or feature of, or information provided through the Services, API or on the Website, including the content, hours of availability, equipment required for access or for this Agreement. MYP Corporation will promptly advise the Customer in writing of any such changes or updates via the publication of updates on the Website.
10.3. The Customer must:
10.3.1. Comply with all Privacy Laws in relation to Personal Information, whether or not the Customer is bound by any one or more of the Privacy Laws.
10.3.2. Not do anything or omit to do anything which will cause MYP Corporation to breach any Privacy Laws.
10.3.3. Take all reasonable steps to ensure that the Personal Information is protected against any misuse, loss, unauthorised access, modification or disclosure.
10.3.4. Promptly notify MYP Corporation of any inaccuracies or required updates to Data.
10.3.5. Keep its API keys confidential and not share them with any unauthorized third party.
10.3.6. Remain responsible for all activities that occur under its API keys.
10.3.7. Immediately notify MYP Corporation of any unauthorized access or use of its API keys.
11. Intellectual Property
11.1. MYP Corporation Intellectual Property
11.1.1.1. MYP Corporation owns all Intellectual Property in the Services, API, the Project Material, and the Background Material and grants the Customer a non-exclusive, non-transferable licence during the Term to use and access the Services, the Project Material, and the Background Material for the purposes of using and accessing the Services.
11.1.1.2. The Customer acknowledges that nothing in the Agreement gives it any right, title, or interest in the Intellectual Property in the Services, API, Project Material, Background Material or MYP Corporation owned Intellectual Property in the Data, other than as specifically set out herein.
11.1.1.3. The Customer will only use MYP Corporation’s Intellectual Property (such as logos, brands or such other Intellectual Property) with the express written consent of MYP Corporation and in the format supplied and approved by MYP Corporation.
11.1.1.4. The Customer acknowledges and agrees that any Improvements developed by or on behalf of the Customer vest in MYP Corporation. The Customer agrees that it will use its best endeavours and undertake all reasonably necessary actions to affect MYP Corporation’s ownership of the Improvements.
11.2. Customer Intellectual Property
11.2.1.1. The Customer retains ownership of the Intellectual Property in the Data owned by the Customer and grants MYP Corporation a non-exclusive, worldwide, royalty-free licence to host, use, reproduce, modify (solely for formatting or integration), and display the Data for the purpose of providing the Services in accordance with the terms of the Agreement.
11.2.2. The Customer warrants and represents that: 11.2.2.1. It has all rights necessary to grant the licence at clause 11.2.1.1.
11.2.2.2. It has the right to use and upload the Data to the API as contemplated by the Agreement.
11.2.2.3. It has obtained all necessary rights, licences, permissions and consents (including from any third parties and, where applicable, from individuals to whom the Data relates) to grant the licence in clause 11.2.1.1
11.2.2.4. The Data, including any Personal Information, has been collected, used, disclosed and provided to MYP Corporation in compliance with all applicable laws (including the Privacy Laws).
11.2.2.5. The use of Data by a party in accordance with the Agreement will not infringe the Intellectual Property rights or other rights of any third party.
11.3. Intellectual Property Disputes
11.3.1. The Customer must immediately notify MYP Corporation in writing of any alleged claim, including third party claim, of direct or indirect infringement of Intellectual Property in the Services or the API (Alleged Intellectual Property Claim).
11.3.2. MYP Corporation warrants that to the best of its knowledge the Services and the API do not infringe the Intellectual Property of any third party.
11.3.3. The Customer will use best endeavours to support and cooperate with MYP Corporation in defence of any Alleged Intellectual Property Claim.
11.3.4. MYP Corporation agrees to defend any action brought by any third party against the Customer based on a claim that the Intellectual Property in the Services or API infringes the rights of any third party provided that:
11.3.4.1. The Customer provides notification in accordance with clause 11.3.1 along with all reasonable information and assistance.
11.3.4.2. The Customer acknowledges and agrees that MYP Corporation has sole authority to defend or settle the claim, as it, in its sole discretion considers appropriate.
11.3.4.3. The Customer acknowledges and agrees that MYP Corporation has sole discretion to either obtain for the Customer the right to continue using the Services and API or to replace and modify the infringing part so that it becomes non-infringing.
11.3.4.4. The alleged infringement does not relate to changes, additions or alterations to the Services or API made by parties other than MYP Corporation or use of the Services, or API in combination with products or software not provided or approved by MYP Corporation.
12. Dispute Resolution
12.1. This clause 12 applies to each dispute which arises between the parties in connection with the agreement or this clause 12 (a Dispute).
12.2. Subject to clause 12.8, a party must not commence or maintain any action or proceeding in court, tribunal or otherwise regarding a Dispute without first giving a Dispute Notice and complying with the provisions of this clause 12.
12.3. If a party considers that a Dispute has arisen, it may notify the other party in writing, setting out in reasonable detail the facts of the matter in dispute (Dispute Notice).
12.4. The parties must promptly hold good faith discussions after issue of a Dispute Notice to attempt to resolve the Dispute and must (without prejudice to the privilege against the production of any such information to a court) furnish to the other party all information with respect to the Dispute which is appropriate in connection with its resolution.
12.5. If the Dispute has not been resolved within 28 days after the giving of a Dispute Notice, either party may by notice to the other party refer the Dispute to mediation administered by the Australian Disputes Centre.
12.6. The costs of mediation must be shared equally between the parties.
12.7. If the Dispute has not been resolved within 14 days after commencement of mediation, either party may pursue its rights and remedies under the Agreement as it sees fit.
12.8. Notwithstanding anything in this clause 12, a party at any time may commence court proceedings in relation to any dispute or claim arising under or in connection with the Agreement where that party seeks urgent interlocutory relief.
12.9. This clause 12 shall not apply if the Agreement has been terminated.
13. Disclaimer, liability and indemnity
13.1. To the maximum extent permitted by law, the aggregate liability of MYP Corporation to the Customer, whether arising in contract, tort or otherwise, in respect of all claims, damages and costs arising under or in relation to the Agreement shall be limited to an amount equivalent to 12 months’ Fees paid or payable by the Customer to MYP Corporation under the Agreement.
13.2. To the maximum extent permitted by law, and subject to clause 13.4, the Services are provided “as is” and “as available”. MYP Corporation disclaims all representations and warranties, express, implied or statutory, not expressly set out in the Agreement, including any implied warranties of merchantability, fitness for a particular purpose and non-infringement, and makes no representation, warranty, or guarantee regarding the reliability, timeliness, quality, suitability or availability of the Services, or that the Services will be uninterrupted or error-free.
13.3. The Customer indemnifies MYP Corporation from and against third-party claims to the extent arising from:
13.3.1. the Customer’s breach of this Agreement;
13.3.2. the Customer’s misuse of the Services or API; or
13.3.3. the Customer’s breach of applicable law,
except to the extent the claim or loss is caused or contributed to by MYP Corporation’s negligence, breach, or wilful misconduct.
13.4. Neither party shall be liable to the other for any indirect, consequential, incidental, special or punitive loss or damage arising under or in relation to the Agreement whether such loss or damage was within the contemplation of either of the parties at the time of entering into the Agreement.
13.5. Subject to clause 13.8 and to the maximum extent permitted by law, MYP Corporation is not liable for any failure, delay, unavailability or inaccuracy in the Services or API to the extent caused by:
13.5.1. Data or instructions provided by the Customer or a third party on the Customer’s behalf;
13.5.2. any external hardware;
13.5.3. any Attack, Malicious Code or Unauthorised Use;
13.5.4. the Customer’s use of the Services or the API in breach of the Agreement or contrary to MYP Corporation’s reasonable instructions;
not caused by MYP Corporation’s breach of the Agreement, negligence or wilful misconduct.
13.6. The Customer indemnifies, defends and hold MYP Corporation harmless from any claim, demand, loss, or damage (including attorneys’ fees) arising out of or related to its use of the Services, its violation of the Agreement, or its violation of any applicable law or regulation.
13.7. Notwithstanding any provision of these Terms and Conditions, nothing in these Terms and Conditions restricts, modifies or limits the Customer’s rights under any law which cannot be excluded or modified, including the Customer’s rights under the Australian Consumer Law.
14. Suspension and Termination
14.1. Suspension of Access
14.1.1. MYP Corporation may immediately suspend the Customer’s access to the Services or API, or any part of them, by written notice to a Customer (Suspension Notice) where:
14.1.1.1. Any Fees payable under this Agreement remain unpaid for thirty (30) days after the relevant due date.
14.1.1.2. MYP Corporation becomes aware of any Unauthorised Use of the Services or API, or any part of them, by the Customer and reasonably considers suspension necessary to prevent or mitigate material harm.
14.1.1.3. A representation, warranty or statement made by or on behalf of the Customer is materially untrue or misleading and MYP Corporation reasonably considers suspension necessary to protect the Services or API, comply with law, or prevent material harm.
14.1.2. During any period of suspension under clause 14.1.1, the Customer remains liable to pay the Fees except to the extent that the suspension arises from an error, omission or system failure attributable to MYP Corporation.
14.1.3. MYP Corporation must restore access to the Services as soon as reasonably practicable after the circumstance giving rise to the suspension has been remedied.
14.2. Effect of Suspension
14.2.1. If, within thirty (30) days following the date of suspension, the Customer remedies the matter specified in the Suspension Notice to MYP Corporation’s reasonable satisfaction, MYP Corporation must promptly reinstate the Customer’s access to the Services.
14.2.2. If the Customer does not remedy the matter specified in the Suspension Notice within thirty (30) days following the date of suspension, MYP Corporation may terminate the Agreement in accordance with clause 14.5.1. Following termination, the Customer’s access to the Services and API will cease.
14.3. Termination
14.4. Termination by Customer
14.4.1. At the end of the Initial Term, the Services shall renew automatically for successive Renewal Periods unless the Customer provides notice in writing to MYP Corporation to terminate the Services. The period of notice the Customer is required to provide is set out in the Service Agreement (Termination Notice Period). MYP Corporation must give the Customer a reminder notice before the end of the Initial Term and each Renewal Period. The period of notice that MYP Corporation is required to provide is set out in the Service Agreement. All Fees remain payable during the Termination Notice Period.
14.5. Termination by MYP Corporation
14.5.1. MYP Corporation may terminate the Agreement upon thirty (30) days after a Suspension Notice if the Suspension Notice is not complied with.
14.5.2. MYP Corporation may terminate the Agreement immediately by notice in writing to the Customer due to legal or regulatory reasons.
14.6. MYP Corporation may immediately disable the Customer’s use of the Services or API, at its sole discretion, where the Customer’s use or misuse of the Services or API is causing a security or operational issue.
14.7. Termination by either party
14.7.1. A party may terminate the Agreement (Non-Defaulting Party) by notice in writing to the other party (Defaulting Party) if the Defaulting Party:
14.7.1.1. commits a material breach of these Terms and Conditions, where:
14.7.1.1.1. the material breach can be remedied and the Defaulting Party fails to remedy such material breach within thirty (30) days after receipt of a notice from the Non-Defaulting Party specifying the material breach and requiring the Defaulting Party to remedy such material breach; or
14.7.1.1.2. the material breach cannot be remedied; or
14.7.1.2. becomes Insolvent.
14.8. Effect of Termination
14.8.1. Subject to clause 5, upon termination of the Agreement, the Customer must cease using the Services and API (or the relevant terminated part of them) and pay any outstanding Fees to MYP Corporation in accordance with clause 5.
14.8.2. Except to the extent expressly stated otherwise in the Agreement, the Customer will not be entitled to any further payment by MYP Corporation of any other fees which have not accrued as at the effective date of termination.
14.8.3. Upon termination, the Customer must immediately cease to use and remove from any digital or physical format any logo, brand or other Intellectual Property that belongs to MYP Corporation.
14.9. For the avoidance of doubt, the expiry of or termination of the Agreement will not extinguish or affect any rights of either party against the other which:
14.9.1. accrued prior to the time of the expiry or termination of the Agreement; or
14.9.2. otherwise relate to or may arise at any future time from any breach or non-observance of obligations under the Agreement which arose prior to the time of the expiry or termination; or
14.9.3. any provisions of the Agreement which by their nature survive the expiry or termination.
15. Withdrawal of the Services/API
15.1. MYP Corporation may withdraw any part of the Services or API during the Term if:
15.1.1. it is no longer supported, developed or maintained by MYP Corporation or a third-party supplier;
15.1.2. it creates a material security, legal or regulatory risk; or
15.1.3. it is no longer reasonably practical for MYP Corporation to continue providing it.
15.2. MYP Corporation must give the Customer at least six (6) months’ prior written notice of any withdrawal under clause 15.1.
15.3. If the withdrawal materially reduces the Customer’s use of the Services or API, the Customer may, before the withdrawal takes effect:
15.3.1. terminate the affected part of the Services or API without penalty; or
15.3.2. if the withdrawn part is a material part of the Services or API as a whole, terminate the Agreement without penalty.
15.4. MYP Corporation must refund any prepaid Fees for any part of the Services or API that is terminated under clause 15.3 for the period after termination.
15.5. Nothing in this clause limits the Customer’s rights under the Australian Consumer Law.
16. Amendment to Terms and Conditions
16.1. MYP Corporation may amend these Terms and Conditions from time to time to:
16.1.1. Reflect changes to the Services and API (including new features, improvements, or retiring features).
16.1.2. Address security, fraud prevention, or technical issues.
16.1.3. Comply with law, regulation, guidance or an order of a court or tribunal.
16.1.4. Otherwise protect MYP Corporation’s legitimate business interests, where the change is reasonably necessary.
16.2. MYP Corporation will provide the Customer with at least 30 days’ written notice in the event of a change to these Terms and Conditions (Notice Period) before it takes effect by emailing the notice to the primary email address provided by the Customer. The notice will include either a summary of the changes or a link to a version showing the changes.
16.3. Changes to these Terms and Conditions will not apply retrospectively to reduce the Customer’s rights for Services or API already paid for. Unless the change to these Terms and Conditions is required by law or is necessary to address an urgent security risk, any change that materially disadvantages the Customer will take effect only:
16.3.1. from the commencement of the Customer’s next billing period that begins after the Notice Period ends; or
16.3.2. if the Customer expressly agrees to the change, from an earlier date agreed in writing.
16.4. If a change materially disadvantages the Customer, the Customer may terminate the Agreement before the end of the Notice Period by providing written notice to MYP Corporation and MYP Corporation will refund any prepaid Fees for the unused portion of the Term (if applicable). MYP Corporation will not charge an early termination fee for doing so.
16.5. Continued use of the Services or API by the Customer after the Notice Period, where the Customer has not terminated the Agreement in accordance with clause 16.4, will be deemed to be acceptance of the amended Terms and Conditions.
16.6. This clause 16 does not limit:
16.6.1. any rights or remedies that the Customer may have under the Australian Consumer Law; or
16.6.2. any term under these Terms and Conditions that is specifically required by law.
17. GST
17.1. A term used in this clause 17 that is defined in GST Law has the same meaning when used in this clause.
17.2. Unless the Agreement expressly provides otherwise, all amounts payable under or pursuant to the Agreement are expressed to be exclusive of GST. If GST is payable on a Taxable Supply, the amount payable for that Taxable Supply will be the amount expressed in the Agreement plus GST.
17.3. Without limiting clause 17.2, if an amount payable under or pursuant to the Agreement is calculated by reference to a liability incurred by a party, then the liability must be reduced by the amount of any Input Tax Credit to which that party is entitled in respect of that liability.
17.4. A party will be assumed to be entitled to a full Input Tax Credit unless it demonstrates that its entitlement is otherwise before the date on which payment must be made.
17.5. A party receiving a Taxable Supply (Recipient) is not required to pay an amount on account of GST under clause 17.2 to the party making the Taxable Supply (Supplier) until the Supplier has provided the Recipient with a Tax Invoice in respect of that Taxable Supply.
18. Miscellaneous
18.1. MYP Corporation may assign or transfer all or part of its rights and obligations under the Agreement, including in connection with a corporate restructure, sale of assets or change of control, without the Customer’s consent.
18.2. Any notice delivered by MYP Corporation to the Customer under these Terms and Conditions will be delivered to the address of the Customer set out in the Service Agreement. Any notice delivered by the Customer to MYP Corporation under these Terms and Conditions must be delivered by contacting MYP Corporation at MYP Corporation at Level 1, 99 Melbourne Street, South Brisbane QLD 4101.
18.3. A notice given in accordance with this clause takes effect when taken to be received (or at a later time specified in the notice), and is taken to be received:
18.3.1. if hand delivered, on delivery;
18.3.2. if sent by prepaid post, on the third Business Day after the date of posting (or on the seventh Business Day after the date of posting if posted to or from a place outside Australia);
18.3.3. if sent by email, at the time the email is sent (provided the sender has not received a notification within eight Business Hours after the email is sent that the email was not received by the recipient),
but if the delivery, receipt or transmission is not on a Business Day, or is after Business Hours on a Business Day, the notice is taken to be received at 9.00am on the next Business Day.
18.4. Any failure, delay or indulgence by a party in exercising or enforcing any right under the Agreement does not operate as a waiver of that right, nor does any waiver of a breach constitute a waiver of any subsequent breach.
18.5. These Terms and Conditions are governed by the laws of Queensland. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the Queensland courts and tribunals.
18.6. Clauses 5 (Fees for the Services), 9 (Confidentiality), 10 (Privacy and IT Security Measures), 11 (Intellectual Property) and 13 (Disclaimer, liability and indemnity), together with the obligation of the Customer to pay any outstanding Fees due under the Agreement, survive the termination or expiry of the Agreement.
18.7. The Customer must not assign any rights under the Agreement without MYP Corporation’s prior written consent, which MYP Corporation may withhold at its discretion.
18.8. A party may exercise any right, power or remedy at its discretion and separately or concurrently with another right, power or remedy. A single or partial exercise of a right, power or remedy by a party does not prevent a further exercise of that or of any other right, power or remedy. Failure or delay by a party in exercising a right, power or remedy does not prevent its exercise. A right may only be waived in writing, executed by the party giving the waiver.
18.9. Where access by the Customer to the Services or API is terminated, all disclaimers and limitations of liability set out in these Terms and Conditions will survive.
18.10. Part or all of a clause of the Agreement that is illegal or unenforceable will be severed from the Agreement and will not affect the continued operation of the remaining provisions of the Agreement.
18.11. Any legislation which varies an obligation or right, power or remedy of a party that is bound by the Agreement is excluded to the full extent permitted by law, however, nothing in the Agreement is intended to exclude, restrict or modify the operation of any law which cannot be excluded, restricted or modified.
18.12. The Agreement constitutes the entire agreement between the parties relating in any way to the subject matter of the Agreement and supersedes any prior agreement (oral or written) from the Effective Date.
19. API Compatibility Policy and Deprecation Policies
19.1. The Customer acknowledges and agrees that the API Compatibility and Deprecation Policies set out below apply to and are incorporated into the Agreement for the supply of the Services and API.
API Compatibility Policy and Deprecation Policy
Compatibility Policy
Wherever possible, MYP Corporation maintains API interfaces, including their request and response formats, in a manner that is compatible with earlier versions. If it is necessary to change an API interface or contract in a way that is not compatible with earlier versions, MYP Corporation may introduce a new endpoint, version, media type, request or response format, or other equivalent interface. The superseded interface will be maintained in accordance with the API Deprecation Policy (see below).
Note: The behaviour of an API can change without warning if it constitutes a security vulnerability.
Compatible with earlier versions or non-breaking changes
Adding a resource URI that might extend an existing API resource
This change is generally safe, however, the change must consider popular customer frameworks that might generate code that conflicts with this change. The following examples are types of changes to avoid that might break Customer-generated code.
• An API exists /v1.0/foo/bar. The code generator might generate GetBar as a Customer method. If a new API is introduced /v1.0/foo/{param}, where {param} is an arbitrary string, the code generator might generate the new Customer method as GetFoo(String param). This change can cause a breaking change on the Customer because the logic that was embedded in GetBar is no longer invoked.
• A current path /v1.0/foo/bar might result in Customer-generated code GetBar and GetBarAsync. The addition of an API /v1.0/foo/Async conflicts with this generated code.
Adding an HTTP method to an API interface
This change is safe on the condition that the request payload before this change continues to exist and behaves in the same manner. An optional field or fields can be added to an existing API’s request body or as a query string parameter.
Adding optional request headers
This change is safe on the condition that the request before this change continues to respond in the same manner.
Adding an allowed value to an existing property
API models use strings to represent properties that allow a constrained list of values. For example, type in a resource can be documented to list out the current list of resource types. The Customer is expected to use a generic string for these types instead of using strict deserialization of a well-defined enum type. A resource that accepts a property with multiple possible values can be enhanced to allow more values. This new value or values can introduce corresponding new properties and validation rules. A Customer must ensure that it does not validate on non-existent enum values by, for example, making a request with an invalid enum value and expecting an error response.
Existing property values continue to support existing behaviour. Any Customer code that contains, for example, branching logic on the resource type, continues to function as before.
Adding optional fields or headers or both to a response
Optional fields and headers can be added to an API response at any time. The Customer must adjust for such changes.
Changing an error message and resource descriptions in the API response
The code field (or equivalent) in an error response is considered unchangeable and is expected to always cover the stated list of error conditions or cases. The description that is associated with this message can change, without changing the semantic meaning of the message to a user.
Customers must not build logic based on the messageDescription (or equivalent) field.
Increasing the scope of an error message ID
The code field refers to one or more error conditions. This code can be extended to cover more error conditions at any time. However, any such extension is expected to be logical and not arbitrary. The new error conditions must closely relate to an existing error condition that is covered by this message.
Rate-limit headers and errors
The rate limits can be adjusted on API endpoints during the lifetime of the API and does not require a version update.
The clients that receive the HTTP status code 429 for too many requests must make adjustments.
Breaking changes
Removing or renaming an API resource endpoint or HTTP method
This type of change breaks any Customer that uses the API and is not allowed, unless a strong security need to make this change exists. Every effort is made to avoid such a change.
Removing or renaming enum values
Values for enum can be added but not removed.
Changing the type of a field
In general, the type of a field must not change. However, if the API implementation is able to accept the previous type and respond with the previous type, this change is considered compatible with earlier versions.
Changing visible behaviour of existing requests
If a request previously resulted in certain action or response, it must continue to behave in this manner. The only exception is the extensions that are expressly permitted and specified in the Service Agreement in the form of new error messages, HTTP status codes, and request or response fields.
Deprecation Policy
The standard deprecation period is 3 months from the date of notice. During this time, the deprecated API remains operational but may not receive new features or enhancements.
Notice of deprecation
Notice of API deprecations are issued through the API documentation site of each platform.
Customer Responsibilities During Deprecation:
• Monitor Notices: Customers are expected to regularly check the official API documentation site for deprecation announcements.
• Plan Migration: Customers must begin migrating to the recommended alternative API or version immediately upon receiving notice.
• Testing and Validation: Customers should test their applications against the new API version before the end of the deprecation period to ensure compatibility.
• Update Dependencies: Any Customer libraries or SDKs that rely on deprecated endpoints should be updated promptly.
• Risk Acknowledgement: After the deprecation period ends, the deprecated API may be removed without further notice, and continued use may result in service disruption.
