Customer Agreement
Download PDFPDFLast updated: 21 October 2026
Thinking Mode - Customer Agreement
Effective Date: 27/05/2026
1. Purpose of document
1.1 The terms and conditions of this Customer Agreement governs every Agreement (from the effective date stated in a Proposal) for the supply of Services by Thinking Mode to the Customer including as contemplated by any Proposal or Service Schedule.
1.2 Thinking Mode is not bound by any terms of purchase of the Customer or any other conditions which the Customer seeks to impose on, or that purport to apply to, the supply of Services by Thinking Mode, unless and to the extent only that they are expressly stated and agreed in a Proposal.
1.3 The Customer agrees that the submission to Thinking Mode, signing or acceptance of a Proposal by it or requesting Thinking Mode to supply goods or Services constitutes acceptance by it of the terms and conditions of this Customer Agreement.
2. Proposals
2.1 Upon acceptance of such a Proposal by the Customer (if so capable of acceptance) or acceptance by Thinking Mode (as the case may be in accordance with its terms or the particular circumstances) such Proposal shall incorporate the terms and conditions of this Customer Agreement and Service Schedule together form a separate contractual Agreement between the parties.
2.2 Subject to compliance by the Customer with its obligations, Thinking Mode shall perform the Services in accordance with the signed and accepted Proposal.
3. Order of precedence
3.1 Subject to clause 3.2, if there is any inconsistency between clauses 1 to 30 of this Customer Agreement, any Proposal, any Service Schedule and any other documents referred to in the Agreement of which this Customer Agreement forms part or any of them, that inconsistency will be resolved using the following order of precedence:
(a) clauses 1 to 30 of this Customer Agreement;
(b) the relevant Proposal;
(c) any Data Processing Service Schedule and its Data Processing Annexure;
(d) the relevant other Service Schedule(s); and
(e) any other documents referred to in the Agreement of which this Customer Agreement forms part.
3.2 The Parties may agree to disapply or vary the above provisions with respect to precedence or any clause in a contractual document. However, in order to do so the relevant Proposal or other document must expressly identify the inconsistency, disapplication or variation, call it out by reference to this clause 3.2 and detail any conditionality or limitations in respect of the application of relevant contractual provisions. The purpose of this clause 3.2 is to ensure flexibility with respect to the ability of the Parties to agree provisions that may differ in effect from the contemplated provisions in clauses 1 to 30 of this Customer Agreement or as otherwise contemplated by clause 3.1.
4. Term
4.1 The relevant term or duration of this Customer Agreement and pertinent obligations under it shall be specified in the Proposal and commence from the Effective Date.
4.2 The obligations under the Agreement shall subsist (subject to any contrary provision or continuing terms) until its expiry, unless terminated earlier in accordance with the provisions of the Agreement.
5. Duration of Services
5.1 A supply of a Service by Thinking Mode to, or for the benefit of, the Customer shall commence on the Service Commencement Date and end on the Service End Date.
5.2 In the absence of any express statement to the contrary in the Agreement (such as for any agreed disengagement assistance or data migration Services, or Services provided for a lesser duration), Services shall automatically terminate and cease to be provided at the end of the Term of the Agreement.
5.3 This shall not affect the operation of clause 17.5.
6. Fees + payment
6.1 The Customer shall pay when due (without deduction or set-off, whether in law or in equity) all Fees detailed in or contemplated by the Agreement.
6.2 Except as otherwise expressly agreed in this Customer Agreement or in a Proposal, any Fees payable may be increased by Thinking Mode with effect from an anniversary of the Effective Date by the higher of:
(a) 4%; and
(b) the increase in the Index in the prior 12 month period (or as close as may be reasonably determined by Thinking Mode at the time by reference to available published data from the Australian Bureau of Statistics as Thinking Mode shall reasonably determine).
6.3 All Fees are exclusive of GST and other similar sales taxes.
6.4 Interest is payable on any overdue and unpaid Fees, commencing on the date the amount became overdue, at the rate of 2 per cent of the outstanding balance per calendar month, or the maximum rate permitted by applicable law, whichever is less.
6.5 Unless specified to the contrary in a Proposal, payment is due to Thinking Mode 14 days from the date of the relevant invoice.
6.6 All Fees are to be paid to Thinking Mode by direct debit, by card through the Thinking Mode Platform, or as otherwise agreed by the parties in writing.
6.7 Thinking Mode may in its sole discretion accept the payment of Fees in installments upon such terms as it sees fit from time to time.
6.8 Thinking Mode reserves the right to revoke at any time any credit extended to the Customer because of its failure to make any payment when due or for any other reason.
6.9 The Customer agrees to pay to Thinking Mode any costs incurred by it in the collection of payment of any Invoice.
6.10 The Customer acknowledges that any indications as to price, approximations or estimates do not constitute a fixed or maximum amount payable for pertinent Services.
7. Data processing
7.1 If forming part of the Agreement, any Data Processing Agreement, Schedule or Annexure shall apply with respect to the Processing of Personal Data.
7.2 In any event, the Customer acknowledges and agrees that if Thinking Mode Processes the Personal Data of any person in connection with the Service provided to the Customer, the Customer is responsible for and undertakes to provide all legally adequate privacy notices, obtain all necessary consents and approvals as well as comply with all relevant laws applicable to it with respect to the Processing of such Personal Data by Thinking Mode.
8. Compliance
8.1 The Customer, in connection with any permitted use of the Thinking Mode Platform or the Thinking Mode Service, shall itself and shall procure that its Users and its relevant officers, employees, contractors, agents and other Personnel comply with, as may be relevant, the Platform Access Conditions, the Privacy Notice and the terms of this Customer Agreement as relevant to them.
8.2 The Customer must not permit any person under the age of 18 to access or use the Thinking Mode Platform or the Thinking Mode Service unless:
(a) the individual is over 15 years of age and has the capacity to consent to such access or use; or
(b) where the individual does not have such capacity, the Customer has obtained and maintains all necessary consents and approvals from the individual's parent or legal guardian for that individual's access to and use of the Thinking Mode Platform or the Thinking Mode Service, which may include a general, standing or blanket consent.
8.3 For the purposes of clause 8.2, an individual has capacity to consent only if that individual:
(a) understands they are being asked to decide to give or not give consent;
(b) understands the consequences of giving or not giving consent;
(c) based their decision to give or not give consent on reason; and
(d) can communicate their decision to give or not give consent.
8.4 The Customer is responsible for ensuring that such consents and approvals are valid, sufficient, and in compliance with clause 8.3 (if applicable) and all applicable laws and regulations.
8.5 The Customer must, on request by Thinking Mode, provide reasonable evidence that it has obtained such consents and approvals.
9. Warranties
9.1 Thinking Mode shall provide the Services with reasonable skill and care using reasonable commercial endeavours to provide them by the time stated in the Agreement and if no such time is stated then within a reasonable time.
9.2 Thinking Mode warrants to the Customer that:
(a) it has all rights and powers necessary to enter into and perform the Agreement; and
(b) the Services shall be reasonably fit for their purposes (unless stated to the contrary in the Proposal).
10. Service levels
10.1 Service Levels are detailed in the applicable Proposal and Service Schedule(s) (as the case may be).
10.2 Service Credits may be available in respect of service levels or guarantees of that nature. To the extent offered (if at all) in the Agreement, a Service Credit is the sole remedy of the Customer for a failure to meet a service level or guarantee of that nature and the parties agree that they represent a genuine pre-estimate of the losses arising in respect of such a failure or breach.
11. Access
11.1 The Customer must, at its own expense, provide Thinking Mode with:
(a) all information reasonably required by Thinking Mode to comply with its obligations under the Agreement; and
(b) all reasonable assistance required by Thinking Mode.
12. Suspension Rights
12.1 Without prejudice to any other rights or remedies available to Thinking Mode, if any Fees are not paid when due (excepting any bona fide good faith dispute for not more than A$1,000 (ex GST)) or if the Customer is subject to an Insolvency Event, then Thinking Mode shall be entitled, in its sole discretion, to cease or suspend providing all or any part of its Services with immediate effect. Any resumption or reinstatement of the suspended Services, in whole or in part, will be at Thinking Mode' sole discretion.
13. Indemnities
13.1 The Customer indemnifies and shall keep indemnified Thinking Mode against all Losses that Thinking Mode sustains or incurs in connection with:
(a) the personal injury or death to any person or damage to, or loss of any property caused or contributed to by the Customer or any of its Personnel in connection with the performance by Thinking Mode of its obligations under the Agreement;
(b) any misleading, deceptive or dishonest conduct, act or omission by the Customer or any of its Personnel;
(c) a breach of this the Agreement by the Customer;
(d) a failure by the Customer to comply with an obligation under any relevant Third Party licence or right of use;
(e) any negligent, dishonest, fraudulent or unlawful act or omission of the Customer or any of its Personnel in connection with the Agreement; and
(f) any failure by the Customer or its Personnel to comply with any Regulatory Requirements.
14. Statutory Rights
14.1 Certain provisions of the Competition and Consumer Act 2010 (Cth) (including, without limitation, the ACL) provide consumers (as that expression is used in the ACL) and others with certain rights (collectively, the consumer guarantees) in relation to goods or Services purchased by consumers.
14.2 Customers in a consumer transaction (as defined in the ACL) may have additional entitlements. In such circumstances, the Customer shall take notice of the following mandatory text:
Our services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:
to cancel your service contract with us; and
to a refund for the unused portion, or to compensation for its reduced value.
You are also entitled to be compensated for any other reasonably foreseeable loss or damage. If the failure does not amount to a major failure you are entitled to have problems with the service rectified in a reasonable time and, if this is not done, to cancel your contract and obtain a refund for the unused portion of the contract.
14.3 Nothing in the Agreement excludes, restricts or modifies any condition, warranty, consumer guarantee, right or remedy implied or imposed by common law, statute or regulation which cannot be lawfully excluded, restricted or modified.
14.4 If section 23 of the ACL applies to any provisions in the Agreement, any such provision(s) shall be void to the extent they are unfair within the meaning of section 24 of the ACL.
15. Limitation of liability
15.1 Thinking Mode does not (to the extent lawful and subject to clause 14) give any guarantee, indemnity or warranty or make any representation of any kind, express or implied, written or oral, arising by statute, operation of law, course of dealing, usage or trade or otherwise with respect to the supply by Thinking Mode of any goods or Services in connection with the Agreement, except as expressly stated in it or any collateral pertinent document concerning warranties against defects (as may be relevant).
15.2 Except as expressly agreed to the contrary in the Agreement and subject to clauses 14, 15.3, 15.4, 15.5, 15.6, 15.8 and 15.9 the aggregate liability of Thinking Mode for breach of and all liabilities under, in respect of and in connection with the Agreement, as well as its duties at law and in equity (however arising) and whether in contract, tort (including without limitation negligence), under statute, under indemnities or on any other basis concerning the same is limited to an amount equivalent to the Fees paid by the Customer in the last 12 months under the Agreement (calculated by reference to the date when the cause of action first arose or in the case of multiple causes of action with respect to related facts or claims then the first such date).
15.3 To the extent that Thinking Mode has failed to comply with a consumer guarantee under the ACL which cannot be excluded, the liability of Thinking Mode is limited (to the extent lawful) to, at Thinking Mode's option, the supply of the Services again or the payment of the cost of having the Services supplied again.
15.4 To the extent lawful, Thinking Mode shall have no liability to the Customer for, or concerning, any Third Party Products in respect of which the applicable terms and conditions of the Third Party Product supplier shall apply.
15.5 To the extent lawful, Thinking Mode shall have no liability to the Customer for or concerning any Customer-induced Issue.
15.6 Except in respect of an indemnity under clause 13, in no circumstances will either Party be liable to the other or its successors in title or permitted assignees for Consequential Loss arising out of, in connection with or relating to the performance, breach, termination or non-observance of the Agreement.
15.7 Nothing in the Agreement shall prevent a claim by Thinking Mode or limit or exclude a liability of the Customer to pay the Fees.
15.8 Despite clause 15.2 but subject to clauses 15.3, 15.4, 15.5, 15.6 and 15.9, Thinking Mode's aggregate liability in connection with any Claim arising out of or in relation to:
(a) a breach of obligations concerning privacy, confidentiality, or data protection; or
(b) any breach of any applicable licence terms or provisions regarding ownership or licensing of IPRs,
is capped at AUD $1 million in aggregate.
15.9 Nothing in the Agreement shall exclude or limit the liability of a Party for:
(a) death or personal injury caused by negligence; or
(b) fraud, deceit or fraudulent misrepresentation.
15.10 Nothing in the Agreement shall be construed as an agreement to be bound by or submit to any laws or jurisdiction not mentioned in clause 29.
15.11 No person other than a named Party may enforce the Agreement.
16. Termination
16.1 In addition to any other express termination rights specified in the Agreement, a Party may by notice in writing terminate the Agreement if the other Party:
(a) commits a material breach of the Agreement (as the case may be):
(i) that cannot be remedied; or
(ii) if capable of being remedied, it has not been remedied within 20 Business Days after a notice from the non-defaulting Party requiring the defaulting Party to do so; or
(b) suffers an Insolvency Event.
16.2 Thinking Mode may by a notice in writing terminate the Agreement (in whole or in part) if:
(a) Thinking Mode reasonably forms the opinion that supplying Services to the Customer may have a negative impact upon its business or commercial reputation or image;
(b) Thinking Mode's relationship with a third-party partner, vendor or licensor who provides software or other technology that Thinking Mode uses or relies upon to provide a relevant Service, terminates or requires Thinking Mode to change the way it provides the software or other technology as part of the Service;
(c) required in order to comply with relevant laws or requests of governmental entities;
(d) any Fees are not paid when due by the Customer (excepting any bona fide good faith dispute for not more than A$1,000 (ex GST)); or
(e) the Customer breaches a licence or the terms of use of any software or an obligation of confidence.
16.3 A termination under clauses 16.1 or 16.2 will take effect on the date when the notice is deemed to have been given under clause 22.
17. Consequences of termination
17.1 Termination or expiry of the Agreement will not prejudice any right of action or remedy which may have accrued to either Party prior to that termination or expiry (including the right to seek injunctive relief or any other remedy).
17.2 On termination or expiry of the Agreement, the Customer must immediately pay all Fees that have accrued prior to the termination or are otherwise due to Thinking Mode.
17.3 Subject to any applicable laws, the Customer shall not be entitled to any refund of Fees paid prior to termination of the Agreement.
17.4 Any indemnity or any obligation of confidence is independent and survives termination.
17.5 Termination or expiry of the Agreement shall not affect the continuance of any perpetual licence of software that is fully paid up for the duration of such licence unless the relevant licence provides to the contrary.
17.6 In the event of termination or expiry of any licence or a right of use of or access to any software, Service, documentation, materials or thing the Customer must immediately cease using the same and likewise any confidential information of Thinking Mode.
17.7 The Customer must in such circumstances, at its own cost and expense, to the extent relevant and as may be directed by Thinking Mode, return, erase or destroy all copies of such any software, documentation, materials or thing and (as may be demanded by Thinking Mode) confidential information of Thinking Mode. It must also certify to Thinking Mode within 10 Business Days following termination that it has done so.
17.8 Termination or expiry for any reason of the Agreement shall not bring to an end any provision which is expressed, needed or required to survive termination (including, without limitation, a provision in the Agreement to give effect to meaning) and such provisions shall remain in full force and effect until they are satisfied or by their nature expire.
17.9 For the avoidance of doubt, the following clauses of this document survive termination of the Agreement: clauses 1 (purpose of document); 3 (order of precedence); 6 (Fees); 7 (data processing); 10.2 (service credits sole remedy); 13 (indemnities); 14 (statutory rights); 15 (limitations of liability); 17 (consequences of termination); 19 (information security); 20 (customer data); 21 (GST); 22 (notices); 23 (force majeure); 24 (assignment); 25 (general); 28 (disputes); 29 (governing law); and 30 (definitions + interpretation), together with (unless the contrary is stated) any provisions reliant on such clauses.
18. Insurance
18.1 Thinking Mode must effect and maintain during the relevant term or duration of a Proposal:
(a) public liability insurance cover for not less than $5 million per occurrence and in the aggregate;
(b) cyber insurance cover for not less than $1 million per occurrence and in the aggregate; and
(c) workers' compensation and any other insurance required by Regulatory Requirements.
19. Information security
19.1 Thinking Mode adopts information security controls with respect to the Thinking Mode Platform and Thinking Mode Service. We follow the National Institute of Standards and Technology (NIST) Cybersecurity Framework and are working towards alignment with ISO/IEC 27001.
19.2 The Customer acknowledges and understands that any such controls are not a guarantee of information or data security and may be impacted by the activities of third persons (including of a foreign person, state or country) and the conduct of the Customer and its Personnel. To the extent lawful, Thinking Mode accepts no liability with respect to information security other than to implement (insofar as it is within its control) the above security controls.
20. Customer Data + use of systems
20.1 Subject to the applicable terms of service of any Third Party Service Provider, the User shall retain ownership of any data or other content or information that the Customer inputs into any relevant software which is hosted as a service by Thinking Mode (Customer Data).
20.2 The Customer shall ensure that no Customer Data is unlawful and may not use any systems, hardware, Services made available or facilitated by Thinking Mode for unlawful or immoral purposes (in any relevant jurisdiction).
20.3 No unlicensed software or other Intellectual Property Rights may be used on (or in conjunction with) systems, hardware, software, Services or other Deliverables made available by Thinking Mode.
20.4 Thinking Mode shall use reasonable endeavours (which for these purposes includes the application of information security controls), subject to clause 19 and any Data Processing Agreement, to keep confidential any Customer Data which comes into its possession or control.
20.5 In any event, clause 20.4 does not apply to information that (whether before or after the Effective Date or other time):
(a) is rightfully known by or in the possession of Thinking Mode and not subject to a confidentiality obligation;
(b) is public knowledge otherwise than as a result of a breach of an obligation of confidentiality by Thinking Mode; or
(c) has been obtained without any restraints as to secrecy from a Third Party and Thinking Mode has no knowledge that the Third Party does not have a bona fide right to disclose the same on a non-confidential basis.
20.6 Thinking Mode may disclose or transmit such confidential Customer Data to such persons as required by Regulatory Requirements, the rules of any relevant stock exchange, as directed or permitted by the Customer or its Personnel, for the purpose for which it is disclosed or provided (including the provision of the Services and any permitted Processing activities) and as contemplated (if it forms part of the Agreement in respect of a relevant Service) by any Data Processing Service Agreement.
21. GST
21.1 If GST is imposed on a Supply made under or in connection with the Agreement, then, to the extent that:
(a) the consideration for that Supply is not already stated to include an amount in respect of GST; or
(b) the amount of GST stated to be included in the consideration is less than the amount of the GST liability actually incurred by the Supplier in respect of that Supply,
the Supplier of the Supply may increase the consideration by the applicable amount of GST and the Recipient must pay that increased amount at the same time and in the same manner as any part of the consideration is payable to the Supplier in respect of the Supply.
21.2 Where any expenses incurred by a Supplier are to be reimbursed by the Recipient under the Agreement the reimbursable amount shall be determined as follows:
(a) first, any amount which the Supplier is entitled to claim as an Input Tax Credit shall be deducted from the cost to the Supplier of the expense item to arrive at an actual cost; and
(b) second, the actual cost shall be increased by and to the extent of the amount of GST payable by the Supplier in respect of the Supply to the Recipient for which the expense item is consideration.
21.3 If the GST payable by the Supplier on a Taxable Supply is varied pursuant to any change in legislation, the consideration payable under this Customer Agreement must be increased or decreased to reflect that variation of the GST.
21.4 The Recipient is not required to pay any amount of GST to the Supplier unless the Supplier has provided a Tax Invoice to the Recipient.
21.5 For the purposes of this clause 21 and, unless the context otherwise provides, any other clauses using the defined terms, Input Tax Credit, Recipient, Supplier, Supply, Tax Invoice and Taxable Supply have the meanings attributed to those terms in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
22. Notices
22.1 All notices and consents required or permitted to be given in relation to the Agreement (Notice) must be in writing and given by personal service, mail (postage prepaid with proof of despatch retained and airmail if to or from an address overseas) or email to the relevant Party at its address stated in the Agreement) or to a registered office address or such other address as a Party may designate to the other by written notice or to its registered address or an ostensibly operable email address (which for these purposes means that a bounce back message of non-delivery is not given within 1 hour of sending) of that Party.
22.2 A Notice is taken to be given and received (unless evidence sufficient to raise material doubt is adduced to the effect that the Notice was not actually delivered):
(a) in the case of a pre-paid posted letter posted by registered or recorded mail, on the 3rd (or 7th, if posted to or from a place outside Australia) Business Day after posting;
(b) if delivered by personal service on, or before, 5.00pm on a Business Day at the place of delivery, upon delivery, and if later that day then on the next Business Day; and
(c) in the case of email, when an electronic message is sent to the information system of the recipient Party using the email address provided by that recipient Party but if after 5:00pm or not a Business Day in the place of receipt then on the next Business Day.
23. Force majeure
23.1 Notwithstanding any other provision in the Agreement, no default, delay or failure to perform (excepting an obligation of payment) on the part of either Party will be considered a breach if such default, delay or failure to perform is shown to be due to a Force Majeure Event.
23.2 If a Force Majeure Event arises, the time for performance required of the Party subject to the Force Majeure Event will be extended for any period during which performance is prevented by the Force Majeure Event.
23.3 Nothing in this clause 23 entitles a Party to any relief from its obligations which are not affected by the Force Majeure Event.
24. Assignment
24.1 The Customer may not assign, dispose of or otherwise transfer any rights or obligations under the Agreement without the prior written permission of Thinking Mode.
24.2 Thinking Mode may assign, in part or in full, its rights under the Agreement without the consent of the Customer.
25. General
25.1 If a Party suffers Losses in connection with the Agreement for which the other Party is liable (including under an indemnity), the Party suffering the Losses must use reasonable endeavours to mitigate its loss.
25.2 Any provision of the Agreement that is prohibited or unenforceable in any jurisdiction is ineffective as to that jurisdiction to the extent of the prohibition or unenforceability. That does not invalidate the remaining provisions nor affect the validity or enforceability of that provision in any other jurisdiction.
25.3 A Party does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy. A single or partial exercise of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy. A waiver of a right, power or remedy must be in writing and signed by the Party giving the waiver.
25.4 The rights and obligations of the parties do not merge on completion of any transaction contemplated by the Agreement.
25.5 Each Party must, at its own expense, do all things and execute all documents necessary to give full effect to the Agreement and the transactions contemplated by it.
25.6 If the Customer is a body corporate (as 'Body Corporate' is defined in the Corporations Act 2001 (Cth)), the Customer agrees that Thinking Mode may publicly refer to the Customer as a customer of Thinking Mode, including in marketing materials and public relations communications without reference to the Customer. The Customer grants to Thinking Mode a non-exclusive, royalty free licence to use the Customer's name and trade marks for such purposes only.
25.7 Each Party must pay its own costs of negotiating, preparing and entering into the Agreement.
25.8 Neither Party has relied on any statement by any other Party not expressly included in the Agreement.
25.9 Except where expressly stated otherwise, the Agreement does not create a relationship of employment, trust, agency or partnership between the Parties.
26. Variations, changes + discontinuance
26.1 Subject to the following provisions of this clause 26, a variation of the Agreement must be in writing and signed by the parties.
26.2 The Customer acknowledges and accepts that:
(a) Information Technology is not a perfect or complete technology and is continually evolving, often updated, replaced, superseded, changed or improved and suffers obsolescence and incompatibility or detrimental consequences (including with respect to inter-operability, functionality and capability) on a fairly frequent basis;
(b) security risks and other issues in respect of relevant hardware and software are continually emerging and being found (often pre-existing, unknown or not appreciated);
(c) in this context, Thinking Mode periodically updates, seeks to improve and evolve the Thinking Mode Service;
(d) nothing in the Agreement prevents Thinking Mode from, whenever it thinks fit, upgrading, updating, replacing, re-configuring, adding to, disapplying, removing, changing, disabling, ameliorating, suspending or implementing any part of the Thinking Mode Service or any other software or in respect of or connected with the Thinking Mode Service as Thinking Mode in its absolute discretion thinks fit; and
(e) the Agreement shall be construed accordingly despite any contrary terms or expectations.
26.3 Thinking Mode may, in that context but for any reason whatsoever, change or discontinue any Services from time to time.
26.4 Subject to clause 26.5, Thinking Mode will use reasonable endeavours to provide the Customer with at least 3 months' prior written notice if it discontinues material functionality of a Service that is being used by a Customer, or materially alters a customer-facing API that the Customer is using in a backwards-incompatible fashion.
26.5 A notice will not be required if the minimum 3 month notice period:
(a) would pose a security or Intellectual Property Rights issue of concern to Thinking Mode or in respect of the Thinking Mode Service;
(b) is economically or technically burdensome to Thinking Mode; or
(c) would cause Thinking Mode to breach a law or applicable agreement, right of use or licence.
26.6 If Thinking Mode terminates a Service under clause 26.3, it shall discuss the matter with the Customer and (unless agreed otherwise) use reasonable endeavours to provide an alternative service of similar equivalence (in the reasonable opinion of Thinking Mode), subject to the payment of such Fees as Thinking Mode considers appropriate, if in all the circumstances it is commercially appropriate for Thinking Mode and reasonable to do so.
27. Authorised representative
27.1 Each Party must nominate one or more officers or employees who shall be an Authorised Representative of such Party, until otherwise advised in writing. Each Party warrants that its Authorised Representatives are duly authorised to provide approvals, instructions, authorisations and consents in relation to the Agreement.
27.2 In any event, any person who holds themselves out as an officer of a Party at any relevant time shall be deemed an Authorised Representative of that Party for the purposes of the Agreement, unless the Party shall notify the Party in writing to the contrary.
28. Disputes
28.1 All Disputes must be resolved as set out in this clause 28.
28.2 Subject to clause 28.3, a Party must not commence any court proceedings unless it has first complied with this clause 28.
28.3 Nothing in this clause 28:
(a) prevents a Party from instituting proceedings to seek urgent injunctive, interlocutory or declaratory relief; or
(b) affects a Party's right to terminate the Agreement (including a licence or right of use).
28.4 A Party claiming that a Dispute has arisen must notify the other Party in writing giving details of the Dispute and stating that the notification is given pursuant to this clause 28.4 (Dispute Notice).
28.5 The Parties must attempt to resolve all Disputes which are the subject of a Dispute Notice by negotiations using the following escalation procedure:
(a) the Dispute must first be referred to the Parties Authorised Representative for the purposes of this clause 28 who must attempt to resolve the Dispute within 20 Business Days; and
(b) if the Dispute is not resolved within 20 Business Days of an escalation under clause 28.5(a) then either Party may refer the Dispute to the CEO (or equivalent executive management) of each of the Parties.
28.6 If the Parties cannot resolve a Dispute in accordance with the escalation procedure in clause 28.5 within 20 Business Days of the Dispute Notice being given under clause 28.4, then either Party may commence mediation, arbitration or other legal proceedings to have the Dispute resolved in a court of competent jurisdiction.
28.7 The Parties in writing may agree to the extension of any of the time periods set out in this clause 28 for the sending of any notice or the doing of any act, subject to the maximum extension permitted being equal to the original time period as set out in this clause 28 in respect of each such notice or act.
28.8 Each person involved in the escalation process described in clause 28 must use their reasonable endeavours to seek to resolve all issues escalated to them, in a way that attempts to preserve the relationship between the Customer and Thinking Mode.
28.9 Nothing in this clause 28 requires a Party to act contrary to its interests.
28.10 If, in relation to a Dispute, a Party breaches any provision of this clause 28, the other Party need not comply with this clause 28 in relation to that Dispute.
28.11 Unless expressly agreed in writing to the contrary, each Party will continue to perform its obligations during the attempted resolution of any Dispute unless such obligations are terminated or cease to apply (as relevant).
28.12 Each Party must bear its own costs of complying with this clause 28.
29. Governing law
29.1 This Customer Agreement, each Service Schedule and each Proposal are governed by the laws of South Australia, Australia.
29.2 The U.N. Convention on Contracts for the International Sale of Goods does not apply.
30. Dictionary + Interpretation
30.1 In this document, unless otherwise provided, capitalised terms shall have the following meanings:
Account means the unique account established by or on behalf of the Customer to access and use the functionality of the Thinking Mode Platform in accordance with this Agreement, including associated credentials, permissions, and usage settings.
ACL or Australian Consumer Law means the Australian Consumer Law set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth) and corresponding provisions in the laws of Australian states and territories.
Agreement means the Customer Agreement.
Authorised Representative means, in respect of a Party any officer or employee of that Party who has been nominated in writing by the Party as its authorised representative for the purposes of this Agreement and any other person who holds themselves out as, or is reasonably understood to be, an officer of that Party.
Customer means the customer of Thinking Mode that has entered into the Customer Agreement.
Customer Agreement means this agreement relating to Thinking Mode Service which is entered into between Thinking Mode and the Customer pursuant to signing or accepting a Proposal.
Customer Data means data or other content or information relating to its business that the Customer inputs into any software forming part of the Thinking Mode Service.
Customer-induced Issue means any non-conformity or issue with respect to the Thinking Mode Service which is related to, concerns or results from:
(a) any deliverable or Service supplied in accordance with instructions or specifications provided by, or on behalf of, the Customer, or under the operational authority or management of the Customer;
(b) non-conformities or issues otherwise attributable to the Customer (including, for these purposes, any person acting on its behalf), such as, but without limitation, those resulting from:
(c) use of the deliverable or Service in combination with any equipment, software, accessory, data or business methods not provided by or expressly prescribed or permitted by Thinking Mode;
(d) erroneous or incomplete information from, or provided by, the Customer;
(e) modifications or adjustments to the deliverable or Service, whether or not authorised by Thinking Mode, or changes in the Customer's data, database or content;
(f) connectivity issues or failure of a network (public and/or private);
(g) the handling, use or deployment of the deliverable or Service in a manner other than permitted in applicable documentation or otherwise in non-compliance with any applicable routine or process prescribed by Thinking Mode; or
(h) any negligence, misuse, improper or unauthorised use, reproduction or distribution of the deliverable or Service which is not permitted under any applicable terms of use or licence, restrictions of use or any relevant acceptable use policy.
Consequential Loss means any Losses suffered by a party that cannot reasonably be considered to arise naturally, or in the ordinary course of things, from any act or omission (including a breach of contract) in connection with a Proposal or relevant agreement and even if the other party has been advised of the possibility or likelihood of such damage, cost or loss. Each party agrees that, in any event, loss of profits, loss of revenue (in each case excepting Fees payable to Thinking Mode), loss or corruption of data (including any corruption, loss or recovery of content or data, costs of reprogramming, repairing, correcting or reproducing any content or data stored in or used in conjunction with any deliverable or Service, operational disruption or errors that impede data traffic and any Losses otherwise caused by corrupt or inadequate content or data arising out of or in connection with the use of any deliverable or Service), loss of goodwill, bargain opportunity and loss of anticipated savings or use however and whenever occurring, will all constitute Consequential Loss.
Data Processing Agreement means any document which sets out the parties' rights and obligations in respect of the processing of Personal Data (including any Customer Data) by Thinking Mode Supplier on behalf of the Customer.
Dispute means any dispute or difference between the parties arising out of or in connection with this Customer Agreement, including any dispute or difference as to the formation, validity, existence or termination of such Customer Agreement or any relevant part.
Effective Date means the date of entry by the relevant parties into the Customer Agreement.
Force Majeure Event means a strike, lock-out or other labour dispute, riot, civil disturbance, action or inaction of governmental authority, epidemic, war, loss of power or electricity, power surge or spike, embargo, storm, lightning, flood, fire, earthquake, act of God or the public enemy, nuclear or radioactive event, default of a carrier, or any event which is not within the relevant party's reasonable control.
Incident Report means a report which records the occurrence of an incident or event affecting the Services, in accordance with the Thinking Mode Service Schedule.
Index means the Consumer Price Index (CPI) published by the Australian Bureau of Statistics from time to time.
Insolvency Event means:
(a) for a person in Australia, means any one or more of the following events occurring in respect of that person:
(i) a resolution is passed for the winding up of that person (other than for the purposes of reconstruction or amalgamation);
(ii) a liquidator, provisional liquidator or receiver or receiver and manager, voluntary administrator, or administrator of a deed of company arrangement is appointed to all of the property of that person;
(iii) a receiver, receiver and manager, voluntary administrator or an administrator of a deed of company arrangement, is appointed to, or a mortgagee takes possession of, all of the business or assets of that person;
(iv) that person makes any composition or arrangement or assignment with or for the benefit of its creditors;
(v) that person or any creditor appoints a voluntary administrator or a resolution is passed for that person to execute a deed of company arrangement;
(vi) that person ceases, or threatens to cease to carry on its business; or
(vii) that person becomes insolvent within the meaning of section 95A of the Corporations Act 2001 (Cth); or
(b) for a person in any other jurisdiction, means that any event analogous or equivalent to the events described in paragraph (a) occurs in respect of that person.
Intellectual Property Rights means all forms of intellectual property rights (whether registered or unregistered) in copyright, designs, patents, trade marks, domain names, trade secrets, know-how, confidential information, and all other similar proprietary rights and all extensions and renewals thereof anywhere in the world which currently exist and/or are recognised in the future.
Losses means all liabilities, losses, damages, costs, claims and expenses, actual and contingent, and of whatever nature including legal costs and disbursements, whether incurred or awarded against a party, including costs of investigation, litigation, settlement and compliance with judgments; and interest, fines and penalties and loss of profits, suffered or incurred by any relevant person, whether arising in contract or tort (including negligence) or under any statute.
Outage means a state in which the Thinking Mode Service (or any material component of it) is inaccessible to the Customer, fails to provide its core agreed functionality or is materially degraded such that it cannot reasonably be used for its intended purpose, or otherwise suffers a material lack of availability or functionality.
Personnel means the officers, employees and contractors (including sub-contractors) of that person or any of its Related Bodies Corporate.
Platform Access Conditions means the terms and conditions of access to the Thinking Mode Platform and any additional terms, conditions, notices and disclaimers displayed elsewhere on the Thinking Mode Platform, as amended from time to time.
Privacy Notice means the privacy notice of Thinking Mode (which may be found at thinkingmode.com/privacy-policy) as amended from time to time.
Proposal means a document expressed to be a proposal, work order, purchase order, services order, services estimate or other contractual proposal, quote or order (in each case in writing) for Services to be supplied by Thinking Mode and includes any of its Schedules and Annexures. It may also include any online order form, website checkout, or account sign-up process (including pilot or trial account registrations) used by a Customer to request or subscribe for Services from Thinking Mode.
Regulatory Requirements means all applicable laws including practice requirements stipulated by any regulatory authority (whether established pursuant to statute or otherwise and whether mandatory or voluntary), regulations, instruments and provisions in force from time to time and any binding codes of practice.
Related Body Corporate has the meaning given in section 50 of the Corporations Act.
Service Commencement Date means the applicable commencement date of the Thinking Mode Service as specified in a Proposal.
Service End Date means the applicable end date of the Thinking Mode Service as specified in a Proposal.
Service Credit means a credit due to the Customer in a circumstance stated in a relevant Service Level.
Service Level Guarantee means any guaranteed Service Level.
Service Level means the agreement between the parties as to the service level concerning relevant Services.
Service Schedule means a document by that name which details terms and conditions specific to the Thinking Mode Service. The current Service Schedule for the Thinking Mode Service is published on the Thinking Mode Platform.
Thinking Mode means AI & Assessment Solutions Pty Ltd (ABN 78 685 561 906) a proprietary company limited by shares.
Thinking Mode Platform means the platform and its relevant functionality and attributes which is located at https://thinkingmode.com/.
Thinking Mode Service or Service means a service offered by Thinking Mode to relevant persons and which involves access to and use of the Thinking Mode Platform on a basis and extent permitted by it from time to time and any other relevant service from time to time to be supplied to the Customer.
Third Party means a legal entity, company, or person that is not a party to the Agreement and is not the Customer or User.
Third Party Product means any software, goods and/or services owned by or vested in a third party in circumstances where licence and/or user rights have either been granted to the Customer: (a) by Thinking Mode (on the terms and conditions contemplated by the Agreement); or (b) directly by the Third Party Product vendor on terms agreed between the Customer and such vendor.
User means the permitted user of the Thinking Mode Platform.
30.2 The following rules of interpretation shall apply to the Customer Agreement, unless the context otherwise provides or requires:
(a) headings are for convenience only and do not affect interpretation;
(b) the singular includes the plural and vice versa;
(c) words that are gender neutral or gender specific include each gender;
(d) a word spelt in US style English shall be read also as the same word spelt in Australian style English and vice versa as appropriate (e.g. license and licence);
(e) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
(f) the words such as, including, particularly and similar expressions are not used as, nor are intended to be, interpreted as words of limitation;
(g) a reference to: (i) a person includes a natural person, partnership, joint venture, government agency, association, corporation or other body corporate; (ii) a party includes its successors and permitted assigns; (iii) a document includes all amendments or supplements to that document; (iv) a clause, term, party, Schedule, Annexure or Attachment is a reference to a clause or term of, or party to, Schedule, Annexure or Attachment which forms part of the Customer Agreement;
(h) the Customer Agreement includes all parts of it;
(i) a law includes a constitutional provision, treaty, decree, convention, statute, regulation, ordinance, by-law, judgment, rule of common law or equity and is a reference to that law as amended, consolidated or replaced;
(j) an agreement other than the Customer Agreement includes an undertaking, or legally enforceable arrangement or understanding, whether or not in writing;
(k) a reference to a monetary amount in the Customer Agreement is in Australian dollars unless expressly stated to the contrary;
(l) an agreement on the part of two or more persons binds them jointly and severally;
(m) in determining the time of day, where relevant to the Customer Agreement, the relevant time of day is:
(n) for the purposes of giving or receiving notices, the time of day where a party receiving a notice is located; or
(o) for any other purpose under the Customer Agreement, the time of day in the place where the party required to perform an obligation is located; and
(p) no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of the Customer Agreement or any part of it.