Encompass End User License Agreement

The use and access of the Encompass Service and the Service Materials is subject to this End User License Agreement (“Agreement”). If the End User does not accept the terms and conditions contained in this Agreement, the End User is not permitted to use and access the Encompass Service and the Service Materials.

Commencement

This Agreement takes effect when the End User accepts this Agreement by clicking the “I Accept” button or check box which is located immediately prior to or after this Agreement or the link to this Agreement on the Dye & Durham Website or, if earlier, when the End User first uses the Encompass Service (“Effective Date”) and will apply to each subsequent use of the Encompass Service by an End User. It is important that each End User reads and understands the terms and conditions contained in this Agreement before clicking “I Accept”.

Term

This Agreement commences on the Effective Date and continues until terminated by either Encompass or an End User in accordance with this Agreement.

Capacity

The End User represents to Encompass that the End User has the capacity and authority to enter into this Agreement.

Limited License to Use

Encompass hereby grants to the End User a limited, revocable, non-exclusive, non sub-licensable, non-transferrable licence to do the following during the Term (a) access and use the Encompass Service solely in accordance with this Agreement (b) if the End User is an Account End User, copy, share and use the Service Materials solely for private purposes in connection with the permitted use of the Encompass Service by that Account End User. Except as expressly set out in this Agreement, an End User has no rights or interest in the Encompass Service.

Access

The End User must only access and use the Encompass Service and Service Materials in accordance with this Agreement. The End User must adhere to all laws, rules and regulations applicable to the access and use of the Encompass Service by the End User.

The End User acknowledges that (a) the End User is responsible for arranging, at the sole expense of the End User, all equipment and systems that are necessary to access the Encompass Service (b) access to the Encompass Service is limited to the access times of a Provider, which will displayed on the Website or the Dye & Durham AI Website from time to time (c) access to the Encompass Service, Service Materials, or both, may not be available due to circumstances outside the control of Encompass, and (d) the Security Information is required to access the Encompass Service.

Information

The Account End User must not reproduce, retransmit, redistribute, disseminate, sell, publish or circulate any Service Materials to any other person other than an Invited End User and only for the purpose that it was first acquired regardless of the form in which the information was supplied. An Invited End User must not in any circumstance reproduce, retransmit, redistribute, disseminate, sell, publish or circulate any Service Materials to any other person.

The End User agrees to comply with the terms and conditions of a Provider from time to time relating to the use of the Service Materials.

The End User acknowledges that in respect of certain searches, the Encompass Service may only hold search results for these searches for a limited period of time and the End User should ensure copies of all searches are saved to the Account End User's data storage facilities immediately upon receiving the search results from use of the Encompass Service.

Encompass does not represent or warrant or guarantee that the information provided by Encompass to an End User through the Encompass Service is complete, accurate or correct. The End User acknowledges that the completeness, accuracy and correctness of the Service Materials depends on the completeness, accuracy and correctness of the inquiry data entered by the End User into the Encompass Service.

The Encompass Service is contingent on data sources supplied by third parties (including but not limited to government agencies) and accordingly the provision of the Encompass Service may be unilaterally amended by Encompass at any time without notice to the End User where such amendments are necessary for Encompass to comply with the obligations of Encompass to third parties.

Account

The Account End User is responsible for all activities carried out under its Account, regardless of whether the activities are undertaken by the Account End User, an employee of the Account End User or a third party, and Encompass and each Affiliate is not responsible for unauthorized access to an Account of an Account End User. The Account End User must contact Encompass immediately via their normal account contact or the Website if the Account End User believes an unauthorised third party may have accessed and used its Account or if any information is lost or stolen from the Account. An Account End User may terminate its Account and this Agreement at any time provided the Account End User has complied with all of the obligations of the Account End User set out in this Agreement, including but not limited to payment of all outstanding Invoices to Encompass (if any).  Upon termination of this Agreement, the Account End User must not use or access the Encompass Service or the Service Materials or attempt to use or access the Encompass Service or the Service Materials. 

Invited End Users

An Invited End User may access the Shared Service Materials on the condition that the Invited End User complies with the terms and conditions of this Agreement at all times. The Account End User must procure that all Invited End Users of that Account End User comply with the terms and conditions of this Agreement at all times. An Invited End User has no ability or entitlement to initiate or undertake account transactions on an Account of an Account End User. The Account End User must indemnify and keep indemnified at all times Encompass, each Affiliate and Licensor, and each of their respective employees, officers, directors, and representatives (“Indemnified Persons”) from and against any and all Claims (including reasonable legal costs and expenses on a full indemnity basis) suffered or incurred by or awarded against any Indemnified Persons arising out of or relating to any Claim by any person where such Claim, loss or liability relates to or arises from or in connection with the use of the Encompass Service or any breach of this Agreement or violation of applicable law by the Invited End User. This indemnity will continue notwithstanding termination of this Agreement.

Changes to the Encompass Service

Encompass may in the absolute discretion of Encompass from time to time change, discontinue, or limit any part or all of the Encompass Service or change or remove features or functionality of the Encompass Service.

Security and Backup

The Account End User is responsible for properly configuring and using the Encompass Service and taking steps to maintain appropriate security, protection and backup of Service Materials.

The Account End User must maintain the secrecy and confidentiality of the Security Information at all times and must not disclose the Security Information to any other person.

All Security Information must only be used by the Account End User and the Account End User must not sell, transfer or sublicense any or all of the Security Information to any other entity or person, except that the Account End User may disclose the Security Information to agents of the Account End User and subcontractors appointed by Encompass to perform work for or on behalf of the Account End User and for whom the Account End User will be responsible for all actions of these persons or such other persons approved by Encompass in writing from time to time.

End User Violations

The Account End User will be deemed to have taken any action that the Account End User permits, assists or facilitates a person to take in relation to this Agreement, the Service Materials or use of the Encompass Service. The Account End User agrees to be responsible for the use of the Service Materials and the Encompass Service by an Invited End User. The Account End User must ensure that all Invited End Users comply with the obligations of the End User under this Agreement.

Fees and Payment

Encompass or its nominee will issue an Invoice to the Account End User for all charges and fees incurred by the Account End User during the past month. All fees and charges payable by the Account End User, the subject of an Invoice, are exclusive of applicable taxes and duties, including GST unless explicitly stated otherwise.  The Account End User is responsible for the payment of all applicable taxes and duties including GST.

The Account End User must pay all Invoices in a manner specified by Encompass or its nominee from time to time. The Account End User can pay an Invoice by direct debit, electronic fund transfer or credit card only. In respect of payments by credit card, Encompass or its nominee may charge the Account End User a fee for the processing of the credit card payment. The Account End User will be advised of this fee immediately prior to the Account End User authorising the credit card payment via the Dye & Durham Website.

Encompass or its nominee may impose trading terms for the supply of the Encompass Service. These trading terms may appear on an Invoice (and may include the requirement to pay interest on overdue accounts). Encompass or its nominee in their absolute discretion may change the trading terms from time to time. In the absence of trading terms appearing on an Invoice, an Invoice must be paid in full by the Account End User to Encompass or its nominee within 14 days from the date of that Invoice.

Encompass or its nominee may vary the fees for the Encompass Service from time to time and will provide a notification through the Encompass Service or by email to the Account End User to advise the Account End User of the change in fees.

The Account End User will be charged for every search conducted via the Encompass Service. Subject to the law, no refunds will be given to the Account End User if the Account End User is dissatisfied with the content of the search or the search has been incorrectly made by the Account End User.

Suspension

Encompass may suspend the End User’s right to access or use the Encompass Service (partially or entirely) immediately upon notice to the End User, if Encompass determines in the absolute discretion of Encompass that the End User’s use of the Encompass Service (a) is in breach of this Agreement (b) poses a security risk to the Encompass Service or any third party (c) may adversely impact the Encompass Service or the systems or Account Content of any other person (d) is a credit, commercial or compliance risk, or (e) may subject Encompass, an Affiliate, or any third party to a Claim of any kind.

Effect of Suspension

If Encompass suspends the right to access or use of the Encompass Service (partially or entirely), the Account End User that holds the suspended Account will remain responsible for all fees and charges that the Account End User has incurred in relation to the suspended account up to the date of suspension.

Termination

Encompass may terminate the access and use of the Encompass Service by an End User at any time and in the absolute discretion of Encompass upon notice to the End User. Upon termination of this Agreement all rights of an End User under this Agreement will immediately terminate, however the Account End User remains responsible for all fees and charges the Account End User has incurred until the date of termination of this Agreement.

Intellectual Property

Except as expressly set out in this Agreement, the End User shall have no right, interest or title to any Intellectual Property of Encompass. The End User acknowledges that any Intellectual Property in relation to the Website and its content (unless otherwise stated by Encompass) and the Encompass Service are owned by Encompass, or in some cases, an Affiliate, or a Licensor or other third party, and that this Intellectual Property remains the property of their respective owners and must only be used in accordance with this Agreement or with the prior express written consent of the owner.

Licence Restrictions

The End User must not do any one or more of the following (a) modify, alter, tamper with, repair, or otherwise create derivative works of any software included in the Encompass Service (except to the extent that the software included in the Encompass Service is provided to the End User under a separate licence that expressly permits the creation of derivative works) (b) reverse engineer, disassemble, or decompile the Encompass Service or apply any other process or procedure to derive the source code of any software included in the Encompass Service (c) access or use the Encompass Service in a way intended to avoid incurring fees or exceeding usage limits or quotas (d) deal with any derivative works, images or visual representations except as expressly permitted by Encompass, or (e) attempt to do any of the actions listed in (a) — (d) above. All licences granted to the End User in this Agreement are conditional on the continued compliance with this Agreement by the End User, and will immediately and automatically terminate if the End User does not comply with any term or condition of this Agreement. During and after the Term, the End User must not assert, authorize, assist, or encourage any third party to assert, against Encompass, an Affiliate, customer, vendor, business partner of Encompass, or Licensor, any intellectual property infringement claim regarding any Encompass Service.

Storage of Service Materials

All Service Materials relating to an Account of an Account End User are stored on behalf of an Account End User and at the request of the Account End User in a data storage service operated by Mach Technology Pty Limited A.C.N. 115 162 564 or such other entity as may be determined by Encompass from time to time in the absolute discretion of Encompass (“Cloud”). The Cloud can be accessed by the Account End User using Security Information or other information or details provided by Encompass to the Account End User from time to time. The Account End User warrants to Encompass that it will only use and/or disclose the Service Materials in the Cloud in accordance with the Privacy Act and this Agreement. All Service Materials in a Cloud are the sole responsibility of the Account End User. The content in a Cloud will be determined by the searches performed by the Account End User, the type of Account that the Account End User holds and how the Account End User uses its Account. Encompass does not guarantee the accuracy, integrity or quality of such content. Encompass is not liable for any loss or damage that the Account End User may suffer arising from or as a result of the access of the Cloud by an Account End User or use and/or disclosure of Service Materials in a Cloud by an Account End User or both.

Privacy

Encompass will observe the provisions of the Privacy Act and not collect, use or disclose Personal Information (as that term is defined in the Privacy Act) other than in accordance with the National Privacy Principles set out in the Privacy Act. Without limitation, Encompass will (a) only collect Personal Information for the sole purpose of performing its obligations (b) on request, make available its privacy policy and information with respect to Personal Information it holds, the purpose it holds such information and how it collects, holds, uses and discloses such information (c) take reasonable measures to ensure the Personal Information it collects, uses or discloses is accurate, complete and current and to protect Personal Information it holds from misuse, loss or unauthorised access, modification or disclosure, and (d) take all reasonable measures to destroy any Personal Information if it is no longer required. The Account End User acknowledges and agrees that Encompass may obtain a credit report from a credit reporting agency containing personal credit information about the Account End User in relation to credit provided or to be provided by Encompass. The Account End User consents to Encompass being given a consumer credit report to collect overdue payments on commercial credit. The Account End User acknowledges and agrees that Encompass may give information about the Account End User to a credit reporting agency in order to obtain a consumer credit report about the Account End User, or to allow a credit reporting agency to create or maintain a credit information file containing information about the Account End User, or both. The Account End User irrevocably authorises Encompass and its servants and agents to make such inquiries as is deemed necessary to investigate the creditworthiness of the Account End User, its directors and employees from time to time including (but not limited to) the making of inquiries with the persons nominated as trade references, the Account End User’s banker, any credit provider or a credit reporting agency (“Information Sources”). The Account End User hereby authorises the Information Sources to disclose to Encompass such information concerning the Account End User as is within their possession.

Restricted Request

An Account End User may only submit a Restricted Request to Encompass if the Account End User has first obtained the freely given specific and informed consent of the individual the subject of the Restricted Request (“Individual”) to the collection or use or disclosure (whichever is applicable) by Encompass or the Account End User or both of the information of that Individual as set out in the Restricted Request in respect of that Individual.

Each time an Account End User submits a Restricted Request to Encompass, the Account End User represents and warrants to Encompass that the Account End User has first obtained the freely given specific and informed consent of the Individual and all other approvals required under law to the collection or use or disclosure (whichever is applicable) by Encompass or the Account End User or both of the information of that Individual as set out in the Restricted Request in respect of that Individual.

Compliance with Applicable Law

Each End User represents and warrants to Encompass that it will comply with all applicable laws and regulations in the receipt and use of the Service Materials (including but not limited to privacy and data protection laws).

Disclaimers

Except to the extent prohibited by law the Encompass Service is provided “as is&rdquo. Encompass makes no representations or warranties of any kind, whether express, implied, statutory or otherwise regarding the Encompass Service or the third party content, including any warranty that the Encompass Service or third party content will be uninterrupted, complete, error free or free of harmful components, or that any content, including content of an End User or the third party content, will be secure or not otherwise lost or damaged. Encompass is not responsible for the accuracy of any information provided by a Provider through the Encompass Service whether by reason of corruption during transmission to the End User or otherwise.

Limitations of liability

Encompass will not be liable to the End User for any direct, indirect, incidental, special, consequential or exemplary damages (including damages for loss of profits, business, goodwill, use and access, or data) arising from or in respect of or in connection with this Agreement or any actions or inaction by the End User in reliance on the information provided to the End User via the Encompass Service or use of the Encompass Service generally, including but not limited to loss as a result of (a) inaccuracies, error or delay in any information provided to the End User from use of the Encompass Service (b) delay, failure or inaccuracies in the transmission of information to the End User (c) loss of access to the Encompass Service as a result of termination of this Agreement, suspension of the Encompass Service or otherwise (d) computer viruses, computer hardware or software failure, unlawful or unauthorised access to the Encompass Service, theft, sabotage, strike, force majeure and without limitation any other conditions beyond the control of Encompass (e) the End User acting, or failing to act, on any information provided to the End User from using the Encompass Service (f) personal injury or property damage of any kind resulting from access or use of the Encompass Service by the End User, whether such loss or damage is caused by any fault or negligence on the part of Encompass or otherwise. In any case, the aggregate liability of Encompass under this Agreement to an End User will be limited to the amount the Account End User paid to Encompass under this Agreement for use and access of the Encompass Service during the three (3) months preceding the date the Claim first arose. Subject to the law, the liability of Encompass in contract, tort (including negligence) or otherwise relating to or resulting from use of the Encompass Service shall in any event be limited to any one or more of the following (at the option of Encompass) (i) the supply of the Encompass Service again, or (ii) the payment of the cost of having the Encompass Service supplied again. This clause is not intended to exclude or limit any rights which the End User may have under the Competition and Consumer Act 2010 (Cth) that cannot be excluded or limited.

Indemnity

The End User agrees to fully indemnify and keep indemnified at all times Encompass, each Affiliate and Licensor, and each of their respective employees, officers, directors, and representatives (“Indemnified Persons”) from and against any Claims, (including reasonable legal costs and expenses on a full indemnity basis) suffered or incurred by or awarded against any Indemnified Persons arising out of or relating to any Claim by any person where such Claim, loss or liability relates to or arises from or in connection with the use of the Encompass Service or breach of this Agreement or violation of applicable law by the End User. This indemnity will continue notwithstanding termination of this Agreement.

Amendments

Encompass may modify this Agreement at any time with notice to the End User. Encompass will post a revised version of this Agreement on the Website and the Dye & Durham Website upon the amendment of this Agreement. The modified Agreement will become effective upon posting. The continued use of the Encompass Service by the End User after the effective date of any amendment to this Agreement will represent an agreement by the End User to be bound by the Agreement as amended.

Force Majeure

Encompass will not be liable for any delay or failure to perform any obligation of Encompass under this Agreement where the delay or failure results from any cause beyond the reasonable control of Encompass, including acts of God, acts of government, wars, rebellion, insurrection, acts of the public enemy, sabotage, terrorism, cyber terrorism, strikes, lockouts or other industrial disturbances, fires, storms, floods, earthquakes, explosion, accident, epidemic, quarantine restriction, unavailability of data from a third party vendor, transportation embargo, change of law, or other similar causes beyond the control of Encompass (each a “Force Majeure”). If a delay or failure of Encompass to perform an obligation of Encompass under this Agreement is caused by, or anticipated because of Force Majeure, the performance of this obligation will be suspended. If a delay or failure by Encompass to perform the obligations of Encompass under this Agreement because of Force Majeure exceeds thirty (30) days, Encompass may in the absolute discretion of Encompass immediately terminate this Agreement by giving written notice to the End User.

Assignment

The End User must not transfer, assign, novate, lease or otherwise dispose of the rights and obligations of the End User under this Agreement, without the prior written consent of Encompass.

No Waivers

The failure of either party to insist upon or enforce the strict performance of the other party with respect to any provision of this Agreement, or to exercise any right under this Agreement, will not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance, rather, the same will be and remain in full force and effect.

Severability

If a court determines that a word, phrase, sentence, paragraph or clause of this Agreement is unenforceable, illegal or void, it is severed and the other provisions of this deed remain operative.

Governing Law

This Agreement is governed by and is to be construed in accordance with the laws in force in New South Wales, Australia. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of New South Wales, Australia, and courts of appeal from them. Each party waives any right it has to object to an action being brought in those courts, to claim that the action has been brought in an inconvenient forum or to claim that those courts do not have jurisdiction.

Definitions

“Account” means an account to access and use the Encompass Service.
“Account Content” means in respect of an Account, all software (including machine images), data, text, audio, video, images or other content available to the Account End User from that Account.
“Account End User” means a person holding an operative Account.
“Affiliate” means (a) any present or future legal entity which is, or becomes in the future, a subsidiary of Encompass (b) any present or future legal entity which is, or becomes in the future, a related body corporate of Encompass, by virtue of section 50 of the Corporations Act (c) any present or future legal entity which is, or becomes in the future, subject to control (as that term is defined in section 9 of the Corporations Act) by Encompass or any subsidiary or related body corporate of Encompass (d) any present or future legal entity which owns Encompass (e) any present or future legal entity which is under common ownership with Encompass (f) any present or future legal entity or enterprise which Encompass nominates is an “Affiliate”, for the purposes of this Agreement.
“Claims” includes all manner of losses, damages, liabilities, obligations, actions, suits, causes of action, arbitration, debts, dues, demands, costs, interest, verdicts and judgments whatsoever, at law or in equity, or both, under the written law or unwritten law, or both, whether known or unknown.
“Confidential Information” includes all information however recorded or retained and whether oral or written or electronically stored about all or any of the following (a) information, ideas and concepts related to any one or more of an Affiliate and Encompass or the business of an Affiliate or Encompass (b) ideas or concepts of any employee or consultant of an Affiliate or Encompass shared with, or disclosed to the End User (c) the affairs of an Affiliate or Encompass, or both (d) arrangements between any one or more of Encompass and an Affiliate and (i) any person other than the End User and (ii) the End User (e) trade secrets of any one or more of Encompass and an Affiliate (f) the management, policies, strategies, practices and procedures of any one or more of Encompass or an Affiliate (g) any other information or communication that any one or more of Encompass or an Affiliate notifies the End User as being confidential information (h) the financial position of any one or more of Encompass and an Affiliate, but does not include information which (i) is or becomes public knowledge other than as a result of any breach by the End User of any obligation of the End User to Encompass or any Affiliate (ii) is in the possession of the End User without restriction in relation to disclosure before the date of receipt from Encompass, or (iii) has been independently developed or acquired by the End User.
“Corporations Act” means Corporations Act 2001 (Cth).
“Encompass” means Encompass Corporation Pty Limited A.C.N. 140 556 896.
“Encompass Service” means the online information search and visualisation service made available by Encompass or an Affiliate through the Dye & Durham Website, including but not limited to any service provided by Encompass under the Encompass Trading Name, and any other product or service provided by Encompass to the End User upon acceptance of this Agreement by the End User.
“Encompass Trading Name” means all trading names used by Encompass.
“End User” means an Account End User or an Invited End User, or both (where relevant).
“GST” has the meaning given to that term in the GST Law and includes any replacement or subsequent similar tax.
“GST Law” has the same meaning as is ascribed to that term in the A New Tax System (Goods and Services Tax)Act 1999 (Cth).
“Intellectual Property” includes all intellectual property rights and industrial property rights throughout the world including rights in respect of or in connection with (a) any Confidential Information (b) copyright (including future copyright and rights in the nature of or analogous to copyright) (c) right of integrity, rights of attribution and other rights of an analogous nature which may now exist or which may exist in the future (moral rights) (d) inventions (including patents) (e) trade marks (f) service marks (g) designs and (h) semiconductor or circuit layouts, whether or not now existing and whether or not registered or registrable and includes any right to apply for the registration of such rights and includes all renewals and extensions.
“Invited End User” means a person invited by an Account End User to view Service Materials generated for that Account End User through the Account of that Account End User in accordance with this Agreement.
“Invoice” means an invoice issued by Encompass to the Account End User for charges incurred by the Account End User for access and use of the Encompass Service and Service Material.
“Licensor” means a person that has licensed Intellectual Property to Encompass.
“Provider” means any person, entity, body or agency (private or government) that provides information to Encompass or an Affiliate or a business partner in order to provide such information to an End User.
“Privacy Act” means the Privacy Act 1988 (Cth).
“Restricted Request” means, in relation to a person, a request submitted by an Account End User to Encompass for information in respect of that person which requires the consent of the person to be given to the Account End User or Encompass or both for the collection, use or disclosure of the information of that person under law.
“Dye & Durham Website” means the website located at. http://www.dyedurham.com.au
“Security Information” means the log-in details, private keys or passwords or other access controls used in connection with the Encompass Service by the Account End User to access the Encompass Service.
“Service Materials” means all materials relating to the Encompass Service, including but not limited to visual representations, Shared Workspaces, Account Content and all other content generated by Encompass as a result of the use of the Encompass Service by the Account End User.
“Shared Service Materials” means Service Materials which have been shared with the Invited End User by an Account End User using the Encompass Service.
“Shared Workspaces” means workspaces used by an Account End User which are shared by that Account End User with an Invited End User.
“Term” means the term of this Agreement.
“Website” means the website located at http://encompasscorporation.com/.

Encompass End User License Agreement

The use and access of the Encompass Service and the Service Materials is subject to this End User License Agreement (“Agreement”). If the End User does not accept the terms and conditions contained in this Agreement, the End User is not permitted to use and access the Encompass Service and the Service Materials.

Commencement

This Agreement takes effect when the End User accepts this Agreement by clicking the “I Accept” button or check box which is located immediately prior to or after this Agreement or the link to this Agreement on the Dye & Durham Website or, if earlier, when the End User first uses the Encompass Service (“Effective Date”) and will apply to each subsequent use of the Encompass Service by an End User. It is important that each End User reads and understands the terms and conditions contained in this Agreement before clicking “I Accept”.

Term

This Agreement commences on the Effective Date and continues until terminated by either Encompass or an End User in accordance with this Agreement.

Capacity

The End User represents to Encompass that the End User has the capacity and authority to enter into this Agreement.

Limited License to Use

Encompass hereby grants to the End User a limited, revocable, non-exclusive, non sub-licensable, non-transferrable licence to do the following during the Term (a) access and use the Encompass Service solely in accordance with this Agreement (b) if the End User is an Account End User, copy, share and use the Service Materials solely for private purposes in connection with the permitted use of the Encompass Service by that Account End User. Except as expressly set out in this Agreement, an End User has no rights or interest in the Encompass Service.

Access

The End User must only access and use the Encompass Service and Service Materials in accordance with this Agreement. The End User must adhere to all laws, rules and regulations applicable to the access and use of the Encompass Service by the End User.

The End User acknowledges that (a) the End User is responsible for arranging, at the sole expense of the End User, all equipment and systems that are necessary to access the Encompass Service (b) access to the Encompass Service is limited to the access times of a Provider, which will displayed on the Website or the Dye & Durham Website from time to time (c) access to the Encompass Service, Service Materials, or both, may not be available due to circumstances outside the control of Encompass, and (d) the Security Information is required to access the Encompass Service.

Information

The Account End User must not reproduce, retransmit, redistribute, disseminate, sell, publish or circulate any Service Materials to any other person other than an Invited End User and only for the purpose that it was first acquired regardless of the form in which the information was supplied. An Invited End User must not in any circumstance reproduce, retransmit, redistribute, disseminate, sell, publish or circulate any Service Materials to any other person.

The End User agrees to comply with the terms and conditions of a Provider from time to time relating to the use of the Service Materials.

The End User acknowledges that in respect of certain searches, the Encompass Service may only hold search results for these searches for a limited period of time and the End User should ensure copies of all searches are saved to the Account End User's data storage facilities immediately upon receiving the search results from use of the Encompass Service.

Encompass does not represent or warrant or guarantee that the information provided by Encompass to an End User through the Encompass Service is complete, accurate or correct. The End User acknowledges that the completeness, accuracy and correctness of the Service Materials depends on the completeness, accuracy and correctness of the inquiry data entered by the End User into the Encompass Service.

The Encompass Service is contingent on data sources supplied by third parties (including but not limited to government agencies) and accordingly the provision of the Encompass Service may be unilaterally amended by Encompass at any time without notice to the End User where such amendments are necessary for Encompass to comply with the obligations of Encompass to third parties.

Account

The Account End User is responsible for all activities carried out under its Account, regardless of whether the activities are undertaken by the Account End User, an employee of the Account End User or a third party, and Encompass and each Affiliate is not responsible for unauthorized access to an Account of an Account End User. The Account End User must contact Encompass immediately via their normal account contact or the Website if the Account End User believes an unauthorised third party may have accessed and used its Account or if any information is lost or stolen from the Account. An Account End User may terminate its Account and this Agreement at any time provided the Account End User has complied with all of the obligations of the Account End User set out in this Agreement, including but not limited to payment of all outstanding Invoices to Encompass (if any).  Upon termination of this Agreement, the Account End User must not use or access the Encompass Service or the Service Materials or attempt to use or access the Encompass Service or the Service Materials. 

Invited End Users

An Invited End User may access the Shared Service Materials on the condition that the Invited End User complies with the terms and conditions of this Agreement at all times. The Account End User must procure that all Invited End Users of that Account End User comply with the terms and conditions of this Agreement at all times. An Invited End User has no ability or entitlement to initiate or undertake account transactions on an Account of an Account End User. The Account End User must indemnify and keep indemnified at all times Encompass, each Affiliate and Licensor, and each of their respective employees, officers, directors, and representatives (“Indemnified Persons”) from and against any and all Claims (including reasonable legal costs and expenses on a full indemnity basis) suffered or incurred by or awarded against any Indemnified Persons arising out of or relating to any Claim by any person where such Claim, loss or liability relates to or arises from or in connection with the use of the Encompass Service or any breach of this Agreement or violation of applicable law by the Invited End User. This indemnity will continue notwithstanding termination of this Agreement.

Changes to the Encompass Service

Encompass may in the absolute discretion of Encompass from time to time change, discontinue, or limit any part or all of the Encompass Service or change or remove features or functionality of the Encompass Service.

Security and Backup

The Account End User is responsible for properly configuring and using the Encompass Service and taking steps to maintain appropriate security, protection and backup of Service Materials.

The Account End User must maintain the secrecy and confidentiality of the Security Information at all times and must not disclose the Security Information to any other person.

All Security Information must only be used by the Account End User and the Account End User must not sell, transfer or sublicense any or all of the Security Information to any other entity or person, except that the Account End User may disclose the Security Information to agents of the Account End User and subcontractors appointed by Encompass to perform work for or on behalf of the Account End User and for whom the Account End User will be responsible for all actions of these persons or such other persons approved by Encompass in writing from time to time.

End User Violations

The Account End User will be deemed to have taken any action that the Account End User permits, assists or facilitates a person to take in relation to this Agreement, the Service Materials or use of the Encompass Service. The Account End User agrees to be responsible for the use of the Service Materials and the Encompass Service by an Invited End User. The Account End User must ensure that all Invited End Users comply with the obligations of the End User under this Agreement.

Fees and Payment

Encompass or its nominee will issue an Invoice to the Account End User for all charges and fees incurred by the Account End User during the past month. All fees and charges payable by the Account End User, the subject of an Invoice, are exclusive of applicable taxes and duties, including GST unless explicitly stated otherwise.  The Account End User is responsible for the payment of all applicable taxes and duties including GST.

The Account End User must pay all Invoices in a manner specified by Encompass or its nominee from time to time. The Account End User can pay an Invoice by direct debit, electronic fund transfer or credit card only. In respect of payments by credit card, Encompass or its nominee may charge the Account End User a fee for the processing of the credit card payment. The Account End User will be advised of this fee immediately prior to the Account End User authorising the credit card payment via the Dye & Durham Website.

Encompass or its nominee may impose trading terms for the supply of the Encompass Service. These trading terms may appear on an Invoice (and may include the requirement to pay interest on overdue accounts). Encompass or its nominee in their absolute discretion may change the trading terms from time to time. In the absence of trading terms appearing on an Invoice, an Invoice must be paid in full by the Account End User to Encompass or its nominee within 14 days from the date of that Invoice.

Encompass or its nominee may vary the fees for the Encompass Service from time to time and will provide a notification through the Encompass Service or by email to the Account End User to advise the Account End User of the change in fees.

The Account End User will be charged for every search conducted via the Encompass Service. Subject to the law, no refunds will be given to the Account End User if the Account End User is dissatisfied with the content of the search or the search has been incorrectly made by the Account End User.

Suspension

Encompass may suspend the End User’s right to access or use the Encompass Service (partially or entirely) immediately upon notice to the End User, if Encompass determines in the absolute discretion of Encompass that the End User’s use of the Encompass Service (a) is in breach of this Agreement (b) poses a security risk to the Encompass Service or any third party (c) may adversely impact the Encompass Service or the systems or Account Content of any other person (d) is a credit, commercial or compliance risk, or (e) may subject Encompass, an Affiliate, or any third party to a Claim of any kind.

Effect of Suspension

If Encompass suspends the right to access or use of the Encompass Service (partially or entirely), the Account End User that holds the suspended Account will remain responsible for all fees and charges that the Account End User has incurred in relation to the suspended account up to the date of suspension.

Termination

Encompass may terminate the access and use of the Encompass Service by an End User at any time and in the absolute discretion of Encompass upon notice to the End User. Upon termination of this Agreement all rights of an End User under this Agreement will immediately terminate, however the Account End User remains responsible for all fees and charges the Account End User has incurred until the date of termination of this Agreement.

Intellectual Property

Except as expressly set out in this Agreement, the End User shall have no right, interest or title to any Intellectual Property of Encompass. The End User acknowledges that any Intellectual Property in relation to the Website and its content (unless otherwise stated by Encompass) and the Encompass Service are owned by Encompass, or in some cases, an Affiliate, or a Licensor or other third party, and that this Intellectual Property remains the property of their respective owners and must only be used in accordance with this Agreement or with the prior express written consent of the owner.

Licence Restrictions

The End User must not do any one or more of the following (a) modify, alter, tamper with, repair, or otherwise create derivative works of any software included in the Encompass Service (except to the extent that the software included in the Encompass Service is provided to the End User under a separate licence that expressly permits the creation of derivative works) (b) reverse engineer, disassemble, or decompile the Encompass Service or apply any other process or procedure to derive the source code of any software included in the Encompass Service (c) access or use the Encompass Service in a way intended to avoid incurring fees or exceeding usage limits or quotas (d) deal with any derivative works, images or visual representations except as expressly permitted by Encompass, or (e) attempt to do any of the actions listed in (a) — (d) above. All licences granted to the End User in this Agreement are conditional on the continued compliance with this Agreement by the End User, and will immediately and automatically terminate if the End User does not comply with any term or condition of this Agreement. During and after the Term, the End User must not assert, authorize, assist, or encourage any third party to assert, against Encompass, an Affiliate, customer, vendor, business partner of Encompass, or Licensor, any intellectual property infringement claim regarding any Encompass Service.

Storage of Service Materials

All Service Materials relating to an Account of an Account End User are stored on behalf of an Account End User and at the request of the Account End User in a data storage service operated by Mach Technology Pty Limited A.C.N. 115 162 564 or such other entity as may be determined by Encompass from time to time in the absolute discretion of Encompass (“Cloud”). The Cloud can be accessed by the Account End User using Security Information or other information or details provided by Encompass to the Account End User from time to time. The Account End User warrants to Encompass that it will only use and/or disclose the Service Materials in the Cloud in accordance with the Privacy Act and this Agreement. All Service Materials in a Cloud are the sole responsibility of the Account End User. The content in a Cloud will be determined by the searches performed by the Account End User, the type of Account that the Account End User holds and how the Account End User uses its Account. Encompass does not guarantee the accuracy, integrity or quality of such content. Encompass is not liable for any loss or damage that the Account End User may suffer arising from or as a result of the access of the Cloud by an Account End User or use and/or disclosure of Service Materials in a Cloud by an Account End User or both.

Privacy

Encompass will observe the provisions of the Privacy Act and not collect, use or disclose Personal Information (as that term is defined in the Privacy Act) other than in accordance with the National Privacy Principles set out in the Privacy Act. Without limitation, Encompass will (a) only collect Personal Information for the sole purpose of performing its obligations (b) on request, make available its privacy policy and information with respect to Personal Information it holds, the purpose it holds such information and how it collects, holds, uses and discloses such information (c) take reasonable measures to ensure the Personal Information it collects, uses or discloses is accurate, complete and current and to protect Personal Information it holds from misuse, loss or unauthorised access, modification or disclosure, and (d) take all reasonable measures to destroy any Personal Information if it is no longer required. The Account End User acknowledges and agrees that Encompass may obtain a credit report from a credit reporting agency containing personal credit information about the Account End User in relation to credit provided or to be provided by Encompass. The Account End User consents to Encompass being given a consumer credit report to collect overdue payments on commercial credit. The Account End User acknowledges and agrees that Encompass may give information about the Account End User to a credit reporting agency in order to obtain a consumer credit report about the Account End User, or to allow a credit reporting agency to create or maintain a credit information file containing information about the Account End User, or both. The Account End User irrevocably authorises Encompass and its servants and agents to make such inquiries as is deemed necessary to investigate the creditworthiness of the Account End User, its directors and employees from time to time including (but not limited to) the making of inquiries with the persons nominated as trade references, the Account End User’s banker, any credit provider or a credit reporting agency (“Information Sources”). The Account End User hereby authorises the Information Sources to disclose to Encompass such information concerning the Account End User as is within their possession.

Restricted Request

An Account End User may only submit a Restricted Request to Encompass if the Account End User has first obtained the freely given specific and informed consent of the individual the subject of the Restricted Request (“Individual”) to the collection or use or disclosure (whichever is applicable) by Encompass or the Account End User or both of the information of that Individual as set out in the Restricted Request in respect of that Individual.

Each time an Account End User submits a Restricted Request to Encompass, the Account End User represents and warrants to Encompass that the Account End User has first obtained the freely given specific and informed consent of the Individual and all other approvals required under law to the collection or use or disclosure (whichever is applicable) by Encompass or the Account End User or both of the information of that Individual as set out in the Restricted Request in respect of that Individual.

Compliance with Applicable Law

Each End User represents and warrants to Encompass that it will comply with all applicable laws and regulations in the receipt and use of the Service Materials (including but not limited to privacy and data protection laws).

Disclaimers

Except to the extent prohibited by law the Encompass Service is provided “as is&rdquo. Encompass makes no representations or warranties of any kind, whether express, implied, statutory or otherwise regarding the Encompass Service or the third party content, including any warranty that the Encompass Service or third party content will be uninterrupted, complete, error free or free of harmful components, or that any content, including content of an End User or the third party content, will be secure or not otherwise lost or damaged. Encompass is not responsible for the accuracy of any information provided by a Provider through the Encompass Service whether by reason of corruption during transmission to the End User or otherwise.

Limitations of liability

Encompass will not be liable to the End User for any direct, indirect, incidental, special, consequential or exemplary damages (including damages for loss of profits, business, goodwill, use and access, or data) arising from or in respect of or in connection with this Agreement or any actions or inaction by the End User in reliance on the information provided to the End User via the Encompass Service or use of the Encompass Service generally, including but not limited to loss as a result of (a) inaccuracies, error or delay in any information provided to the End User from use of the Encompass Service (b) delay, failure or inaccuracies in the transmission of information to the End User (c) loss of access to the Encompass Service as a result of termination of this Agreement, suspension of the Encompass Service or otherwise (d) computer viruses, computer hardware or software failure, unlawful or unauthorised access to the Encompass Service, theft, sabotage, strike, force majeure and without limitation any other conditions beyond the control of Encompass (e) the End User acting, or failing to act, on any information provided to the End User from using the Encompass Service (f) personal injury or property damage of any kind resulting from access or use of the Encompass Service by the End User, whether such loss or damage is caused by any fault or negligence on the part of Encompass or otherwise. In any case, the aggregate liability of Encompass under this Agreement to an End User will be limited to the amount the Account End User paid to Encompass under this Agreement for use and access of the Encompass Service during the three (3) months preceding the date the Claim first arose. Subject to the law, the liability of Encompass in contract, tort (including negligence) or otherwise relating to or resulting from use of the Encompass Service shall in any event be limited to any one or more of the following (at the option of Encompass) (i) the supply of the Encompass Service again, or (ii) the payment of the cost of having the Encompass Service supplied again. This clause is not intended to exclude or limit any rights which the End User may have under the Competition and Consumer Act 2010 (Cth) that cannot be excluded or limited.

Indemnity

The End User agrees to fully indemnify and keep indemnified at all times Encompass, each Affiliate and Licensor, and each of their respective employees, officers, directors, and representatives (“Indemnified Persons”) from and against any Claims, (including reasonable legal costs and expenses on a full indemnity basis) suffered or incurred by or awarded against any Indemnified Persons arising out of or relating to any Claim by any person where such Claim, loss or liability relates to or arises from or in connection with the use of the Encompass Service or breach of this Agreement or violation of applicable law by the End User. This indemnity will continue notwithstanding termination of this Agreement.

Amendments

Encompass may modify this Agreement at any time with notice to the End User. Encompass will post a revised version of this Agreement on the Website and the Dye & Durham Website upon the amendment of this Agreement. The modified Agreement will become effective upon posting. The continued use of the Encompass Service by the End User after the effective date of any amendment to this Agreement will represent an agreement by the End User to be bound by the Agreement as amended.

Force Majeure

Encompass will not be liable for any delay or failure to perform any obligation of Encompass under this Agreement where the delay or failure results from any cause beyond the reasonable control of Encompass, including acts of God, acts of government, wars, rebellion, insurrection, acts of the public enemy, sabotage, terrorism, cyber terrorism, strikes, lockouts or other industrial disturbances, fires, storms, floods, earthquakes, explosion, accident, epidemic, quarantine restriction, unavailability of data from a third party vendor, transportation embargo, change of law, or other similar causes beyond the control of Encompass (each a “Force Majeure”). If a delay or failure of Encompass to perform an obligation of Encompass under this Agreement is caused by, or anticipated because of Force Majeure, the performance of this obligation will be suspended. If a delay or failure by Encompass to perform the obligations of Encompass under this Agreement because of Force Majeure exceeds thirty (30) days, Encompass may in the absolute discretion of Encompass immediately terminate this Agreement by giving written notice to the End User.

Assignment

The End User must not transfer, assign, novate, lease or otherwise dispose of the rights and obligations of the End User under this Agreement, without the prior written consent of Encompass.

No Waivers

The failure of either party to insist upon or enforce the strict performance of the other party with respect to any provision of this Agreement, or to exercise any right under this Agreement, will not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance, rather, the same will be and remain in full force and effect.

Severability

If a court determines that a word, phrase, sentence, paragraph or clause of this Agreement is unenforceable, illegal or void, it is severed and the other provisions of this deed remain operative.

Governing Law

This Agreement is governed by and is to be construed in accordance with the laws in force in New South Wales, Australia. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of New South Wales, Australia, and courts of appeal from them. Each party waives any right it has to object to an action being brought in those courts, to claim that the action has been brought in an inconvenient forum or to claim that those courts do not have jurisdiction.

Definitions

“Account” means an account to access and use the Encompass Service.
“Account Content” means in respect of an Account, all software (including machine images), data, text, audio, video, images or other content available to the Account End User from that Account.
“Account End User” means a person holding an operative Account.
“Affiliate” means (a) any present or future legal entity which is, or becomes in the future, a subsidiary of Encompass (b) any present or future legal entity which is, or becomes in the future, a related body corporate of Encompass, by virtue of section 50 of the Corporations Act (c) any present or future legal entity which is, or becomes in the future, subject to control (as that term is defined in section 9 of the Corporations Act) by Encompass or any subsidiary or related body corporate of Encompass (d) any present or future legal entity which owns Encompass (e) any present or future legal entity which is under common ownership with Encompass (f) any present or future legal entity or enterprise which Encompass nominates is an “Affiliate”, for the purposes of this Agreement.
“Claims” includes all manner of losses, damages, liabilities, obligations, actions, suits, causes of action, arbitration, debts, dues, demands, costs, interest, verdicts and judgments whatsoever, at law or in equity, or both, under the written law or unwritten law, or both, whether known or unknown.
“Confidential Information” includes all information however recorded or retained and whether oral or written or electronically stored about all or any of the following (a) information, ideas and concepts related to any one or more of an Affiliate and Encompass or the business of an Affiliate or Encompass (b) ideas or concepts of any employee or consultant of an Affiliate or Encompass shared with, or disclosed to the End User (c) the affairs of an Affiliate or Encompass, or both (d) arrangements between any one or more of Encompass and an Affiliate and (i) any person other than the End User and (ii) the End User (e) trade secrets of any one or more of Encompass and an Affiliate (f) the management, policies, strategies, practices and procedures of any one or more of Encompass or an Affiliate (g) any other information or communication that any one or more of Encompass or an Affiliate notifies the End User as being confidential information (h) the financial position of any one or more of Encompass and an Affiliate, but does not include information which (i) is or becomes public knowledge other than as a result of any breach by the End User of any obligation of the End User to Encompass or any Affiliate (ii) is in the possession of the End User without restriction in relation to disclosure before the date of receipt from Encompass, or (iii) has been independently developed or acquired by the End User.
“Corporations Act” means Corporations Act 2001 (Cth).
“Encompass” means Encompass Corporation Pty Limited A.C.N. 140 556 896.
“Encompass Service” means the online information search and visualisation service made available by Encompass or an Affiliate through the Dye & Durham Website, including but not limited to any service provided by Encompass under the Encompass Trading Name, and any other product or service provided by Encompass to the End User upon acceptance of this Agreement by the End User.
“Encompass Trading Name” means all trading names used by Encompass.
“End User” means an Account End User or an Invited End User, or both (where relevant).
“GST” has the meaning given to that term in the GST Law and includes any replacement or subsequent similar tax.
“GST Law” has the same meaning as is ascribed to that term in the A New Tax System (Goods and Services Tax)Act 1999 (Cth).
“Intellectual Property” includes all intellectual property rights and industrial property rights throughout the world including rights in respect of or in connection with (a) any Confidential Information (b) copyright (including future copyright and rights in the nature of or analogous to copyright) (c) right of integrity, rights of attribution and other rights of an analogous nature which may now exist or which may exist in the future (moral rights) (d) inventions (including patents) (e) trade marks (f) service marks (g) designs and (h) semiconductor or circuit layouts, whether or not now existing and whether or not registered or registrable and includes any right to apply for the registration of such rights and includes all renewals and extensions.
“Invited End User” means a person invited by an Account End User to view Service Materials generated for that Account End User through the Account of that Account End User in accordance with this Agreement.
“Invoice” means an invoice issued by Encompass to the Account End User for charges incurred by the Account End User for access and use of the Encompass Service and Service Material.
“Licensor” means a person that has licensed Intellectual Property to Encompass.
“Provider” means any person, entity, body or agency (private or government) that provides information to Encompass or an Affiliate or a business partner in order to provide such information to an End User.
“Privacy Act” means the Privacy Act 1988 (Cth).
“Restricted Request” means, in relation to a person, a request submitted by an Account End User to Encompass for information in respect of that person which requires the consent of the person to be given to the Account End User or Encompass or both for the collection, use or disclosure of the information of that person under law.
“Dye & Durham Website” means the website located at http:/www.dyedurham.com.au

“Security Information” means the log-in details, private keys or passwords or other access controls used in connection with the Encompass Service by the Account End User to access the Encompass Service.
“Service Materials” means all materials relating to the Encompass Service, including but not limited to visual representations, Shared Workspaces, Account Content and all other content generated by Encompass as a result of the use of the Encompass Service by the Account End User.
“Shared Service Materials” means Service Materials which have been shared with the Invited End User by an Account End User using the Encompass Service.
“Shared Workspaces” means workspaces used by an Account End User which are shared by that Account End User with an Invited End User.
“Term” means the term of this Agreement.
“Website” means the website located at http://encompasscorporation.com/.