Cobber - Grassroots & political organising made easy

Parties

Cobber Software Pty Ltd ACN 693 186 962 of GPO Box 2444, Brisbane QLD 4001; info@cobberhq.com.au (attention of the Directors) (Cobber, we, us or our).

The party that accesses or uses the Products or Services (Client, you or your) at the address notified to Cobber.

Acceptance of Agreement

This Agreement applies to the Client's access and use of the Products and Services. By clicking "I agree", signing an order form, creating an account, or otherwise accessing or using the Products or Services, the Client agrees to be bound by the terms of this Agreement. If the Client or its End Users do not agree with the provisions of the Agreement, please do not access or use Cobber's Products or Services.

It is agreed

Definitions and interpretation
Formation and precedence
Variation
Term
Products and Services
Acceptable Use
Electoral and political compliance
Content and communications
Suspension
Disclaimers
Payment
Obligations of the Client
Intellectual Property Rights
Storage of Client Data
Confidential information
Privacy Laws and Security
Liability
Indemnity
Termination
Consequences of termination or expiration
Goods and Services Tax
Publicity
Governing law and jurisdiction
Dispute resolution
Miscellaneous

Schedule 1 — Data Processing Terms

1. Definitions and interpretation

1.1 Definitions

In the Agreement:

Access Fees means the recurring fees payable to Cobber by the Client for the software licences granted under this Agreement, as set out in the Agreement Details or at the rates published on cobberhq.com.au from time to time.

Acceptable Use Policy means the requirements set out in clause 6.

Additional Products or Services has the meaning given to that term in clause 5.2(b).

Agreement has the meaning in clause 2.1 (Formation and composition).

Agreement Details means:

the account and billing details associated with the Client's account in Cobber; and/or
any order form, quote, statement of work or other document that Cobber accepts as the Agreement Details from time to time.

Annual Plan means a plan under which the Client pays Access Fees for a fixed period of 12 months in advance or by monthly instalments against an annual commitment, as set out in the Agreement Details.

Associated Entity means any entity that is an associated entity within the meaning of that term in section 50AAA of the Corporations Act.

Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).

Authorised Officer of a party which is a corporation means:

an employee of the party whose title contains either of the words Director or Manager;
a person performing the function of any of them;
a solicitor acting on behalf of the party;
a legal officer or legal advisor of the Client; or
a person appointed by the party to act as an Authorised Officer for the purposes of the Agreement and notified to the other party.

Business Day means:

if determining when a notice, consent or other communication is given, a day that is not a Saturday, Sunday or public holiday in the place to which the notice, consent or other communication is sent; and
for any other purpose, a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Brisbane.

Claim means, in relation to a person, any action, allegation, claim, demand, judgment, Liability, proceeding, remedy, right of action or right of set-off made against the person concerned however it arises whether:

it is present, unascertained, immediate, future or contingent;
it is based in contract, tort, statute or otherwise; or
it involves a third party or a party to the Agreement.

Client Data means the data supplied by the Client, its Personnel or its End Users, and used in connection with the Products and Services, including Outputs but excluding Cobber Data.

Client IP means the Intellectual Property Rights of the Client which are created, and owned, by the Client independently of the Agreement.

Cobber Data means all data which:

is in, or used in, aggregated and de-identified form; or
is held by, or disclosed to, Cobber independently of the Agreement.

Cobber IP means all Intellectual Property Rights created, owned or licensed by Cobber, including the Cobber Data.

Cobber Platform means the Cobber applications, websites and services made available at cobberhq.com.au and any subdomains, or any successor URL.

Commencement Date means the date on which the Client first accesses or uses the Products or Services, or the date set out in the Agreement Details (whichever is earlier).

Confidential Information means, in relation to each party (for the purposes of this definition, Discloser), any information which is disclosed in any form, whether before or after the Commencement Date, by the Discloser and which:

is by its nature confidential;
is designated as confidential by the Discloser;
the recipient knows or ought to know is confidential; or
is information concerning the business, assets, liabilities, financial position, customers, pricing policies, marketing strategies, Intellectual Property Rights, membership lists, supporter data, campaign strategies, or proposed business plans of the Discloser;

but excluding any such information:

which is publicly known (other than through a breach of this Agreement);
which is disclosed to the other party without restriction by a third party (other than the Discloser) and without any breach of confidentiality by that third party; or
which is developed independently by the other party without reliance on any of the confidential information.

Consequential Loss means any of the following: loss of revenue; loss of profits; loss of opportunity to make profits; loss of business; loss of business opportunity; loss of use or amenity; loss of anticipated savings; special, exemplary or punitive damages; loss of reputation or goodwill; loss of donations, memberships or supporter engagement; and any loss which does not directly and naturally flow in the normal course of events from the occurrence of the event giving rise to the liability for such loss, whether or not such loss was in the contemplation of the parties at the time of entry into the Agreement, including any of the above types of loss arising from an interruption to a business, campaign or activity.

Corporations Act means the Corporations Act 2001 (Cth).

Electoral Laws means the Commonwealth Electoral Act 1918 (Cth), equivalent State and Territory electoral legislation, and any other Laws regulating electoral activity, political donations, electoral authorisations, electoral communications, and the disclosure of political expenditure or donations, as applicable to the Client from time to time.

Electronic Communication means communication of information in the form of data, text or images by guided or unguided electromagnetic energy.

Employee has its ordinary meaning, but also includes independent contractors.

End User means any individual that accesses or uses the Products or Services, including through a user account issued under the Client's subscription.

Exceptional Circumstance means a circumstance beyond the reasonable control of the parties which results in a party being unable to observe or perform on time an obligation under the Agreement. Such circumstances include:

adverse changes in government regulations;
any disaster or act of God, lightning strikes, atmospheric disturbances, earthquakes, floods, storms, explosions, fires and any natural disaster;
acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution, cyber attacks, viruses or malware, data loss as a result of the actions of a third party;
strikes or industrial disputes; and
acts or omissions of any third-party network providers (such as internet, telephony, email deliverability or power provider).

Fees means all fees payable by the Client for the provision of the Products and Services, as specified in the Agreement Details or at the rates published on cobberhq.com.au, including the Access Fees.

Government Body means:

any person, body or other thing exercising an executive, legislative, judicial or other governmental function of any country or political subdivision of any country;
any public authority constituted by or under a law of any country or political subdivision of any country; and
any person deriving a power directly or indirectly from any other Government Body.

Gross Negligence means an act or failure to act which, in addition to constituting negligence, was in reckless disregard or wanton indifference to the consequences.

GST means GST as that term is defined in the GST Law, and any interest, penalties, fines or expenses relating to such GST.

GST Law means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and/or associated Commonwealth legislation, regulations and publicly-available rulings.

Indemnified Parties means Cobber and its Personnel and Related Entities or Associated Entities and any of their Personnel.

Insolvency Event means:

in relation to any corporation:
1. its liquidation;
2. an external administrator is appointed in respect of the corporation or any of its property;
3. the corporation ceases or threatens to cease to carry on its business;
4. the corporation being deemed to be, or stating that it is, unable to pay its debts when they fall due;
5. any other ground for liquidation or the appointment of an external administrator occurs in relation to the corporation;
6. the corporation resolves to enter into liquidation; or
7. an application being made which is not dismissed or withdrawn within ten Business Days for an order, resolution being passed or proposed, a meeting being convened or any other action being taken to cause or consider anything described in paragraphs (i) to (vi) (inclusive) above;
in relation to an individual, that person becoming an insolvent under administration as defined in section 9 of the Corporations Act; and
in relation to any person, anything analogous to or having a similar effect to anything described above in this definition under the law of any relevant jurisdiction.

Intellectual Property Rights means all current and future registered and unregistered rights in respect of copyright, circuit layouts, designs, trade marks, know-how, confidential information, patents, inventions and discoveries and all other intellectual property as defined in article 2 of the convention establishing the World Intellectual Property Organisation 1967.

Law means any statute, rule, regulation, proclamation, order in council, ordinance, local law or by-law, whether:

present or future; or
State, federal or otherwise.

Liability means any liability, debt or obligation, whether actual, contingent or prospective, present or future, qualified or unqualified or incurred jointly or severally with any other person.

Loss means any loss (including Consequential Loss), claims, actions, liabilities, damages, expenses, diminution in value or deficiency of any kind whether direct, indirect, consequential or otherwise.

Material means property, information, software, firmware, documented methodology or process, documentation or other material in whatever form, including any reports, specifications, business rules or requirements, user manuals, user guides, operations manuals, training materials and instructions, and the subject matter of any category of Intellectual Property Rights.

Monthly Plan means a plan under which the Client pays Access Fees month-to-month, with no fixed term, as set out in the Agreement Details.

Output means reports, PDFs, templates, exports or documentation generated by or on behalf of the Client as a result of the Client's use of the Products and Services, excluding Cobber Data.

Personal Information has the meaning given in the Privacy Law.

Personnel means in relation to a party, any Employee, officer, or agent of that party.

Privacy Law means the Privacy Act 1988 (Cth).

Privacy Policy means Cobber's privacy policy available at cobberhq.com.au/privacy, as updated from time to time.

Products means products provided to the Client by Cobber, including the Cobber Platform and any features, modules or applications made available to the Client under this Agreement.

Recipient Data means Personal Information of members, supporters, volunteers, donors, prospects and other individuals whose Personal Information the Client collects, uploads, imports, stores, manages or transmits through the Products and Services.

Related Entity means a person which is a related entity within the meaning of that term in section 9 of the Corporations Act.

Resolution Institute means the Resolution Institute (ABN 69 008 651 232) or, in the event that the Resolution Institute ceases to exist or to provide mediation services, a professional dispute resolution organisation of equivalent standing.

Services means services provided to the Client by Cobber in connection with the Products, including support, onboarding, implementation and any other services specified in the Agreement Details.

Spam Act means the Spam Act 2003 (Cth).

Tax means any present or future tax, levy, deduction, impost, withholding, charge or duty which is levied or imposed by any Government Body together with any interest, penalty or fine on those amounts.

Tax Invoice means a "tax invoice" compliant with the requirements of the GST Law.

Term means the total duration of the Agreement, as described in clause 4.

Where a term used in the Agreement appears in bold type in the Agreement Details, that term has the meaning shown opposite it in the Agreement Details.

1.2 Interpretation

Unless the contrary intention appears, a reference in the Agreement to:
1. the Agreement or another document includes any variation or replacement of it despite any change in the identity of the parties;
2. one gender includes the others;
3. the singular includes the plural and the plural includes the singular;
4. a person, partnership, corporation, trust, association, joint venture, unincorporated body, Government Body or other entity includes any other of them;
5. a clause, subclause or paragraph is to a clause, subclause or paragraph of the Agreement;
6. a party includes the party's executors, administrators, successors, substitutes (including a person who becomes a party by novation) and permitted assigns;
7. any statute, ordinance, code or other law includes regulations and other instruments under any of them and consolidations, amendments, re-enactments or replacements of any of them;
8. money is to Australian dollars, unless otherwise stated; and
9. a time is a reference to Brisbane time unless otherwise specified.
The words "include", "including", "such as", "for example" and similar expressions are not to be construed as words of limitation.
Where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning.
Headings and any table of contents or index are for convenience only and do not affect the interpretation of the Agreement.
A provision of the Agreement must not be construed to the disadvantage of a party merely because that party or its advisers were responsible for the preparation of the Agreement or the inclusion of the provision in the Agreement.

1.3 Business Days

If anything under the Agreement must be done on a day that is not a Business Day, it must be done instead on the next Business Day.
If an act is required to be done on a particular day, it must be done before 5.00pm on that day or it will be considered to have been done on the following day.

1.4 Parties

If a party consists of more than one person, the Agreement binds each of them separately and any two or more of them jointly.
An agreement, covenant, obligation, representation or warranty in favour of two or more persons is for the benefit of them jointly and each of them separately.
An agreement, covenant, obligation, representation or warranty on the part of two or more persons binds them jointly and each of them separately.

2. Formation and precedence

2.1 Formation and composition

The following are comprised in the agreement:

these Terms of Service, including any Schedule to these Terms of Service;
the Agreement Details;
the Privacy Policy; and
any other document forming part of the agreement as agreed to and executed in writing by the parties,

together the "Agreement".

2.2 Precedence for the Agreement

In the event of any conflict or inconsistency between one or more of the documents, for interpretation, the following will be the order of precedence (highest to lowest):

any Schedule to these Terms of Service (in respect of the subject matter of that Schedule);
the Agreement Details;
these Terms of Service;
the Privacy Policy; and
any other document forming part of the Agreement as agreed to and executed in writing by the parties.

3. Variation

An amendment or variation to the Agreement is not effective unless it is in writing and signed by the parties.
Notwithstanding clause 3(a), Cobber may vary the Agreement at any time during the Term, provided that:
1. Cobber provides the Client notice via the Cobber Platform, by email, or to the Client's notified address, at least 30 days prior to the variation taking effect; and
2. any variations to the Agreement are not effective until the commencement of the next billing period following the end of the notice period.
If the Client does not agree with any proposed variations notified to the Client, the Client may terminate the Agreement in accordance with clause 19.2, otherwise the Client will be deemed to accept the proposed variations and agree to be bound to the varied Agreement from the date the variation takes effect.

4. Term

The term of the Agreement commences on the Commencement Date and continues:
1. if the Client is on a Monthly Plan, on a month-to-month basis until terminated in accordance with clause 19; or
2. if the Client is on an Annual Plan, for the initial period specified in the Agreement Details, and will automatically renew for successive periods of the same duration on the terms and conditions of the Agreement, unless the Agreement is terminated in accordance with clause 19.
The Monthly Plan is the default plan unless otherwise stated in the Agreement Details.

5. Products and Services

5.1 Relationship

The parties' relationship is one of principal and independent contractor, not employer and employee, agency or partnership. Nothing in this Agreement constitutes a joint venture, association, or fiduciary relationship between the parties.

5.2 Scope

The parties agree that the scope of Products and Services to be provided to the Client is as set out in the Agreement Details and as described on cobberhq.com.au from time to time.
If the Client wishes to procure additional products or services beyond what is captured under this Agreement (Additional Products or Services), it may enter into a further agreement or update the Agreement Details to include the Additional Products or Services as permitted within the Cobber Platform.
If the Client updates the Agreement Details pursuant to clause 5.2(b):
1. notwithstanding clause 3(a), the Agreement is automatically and immediately varied to reflect the updated Agreement Details; and
2. Cobber will promptly provide the Client access to the Additional Product or Service.
The Fees applicable to the Additional Product or Service are billed in accordance with clause 11.

5.3 Outside Scope

Any products or services provided by Cobber to the Client, which:

are not expressly included in the Agreement;
are performed as a result of a deficiency in the Client's performance of its obligations under the Agreement; or
are necessary to comply with a change in Law not anticipated by the Agreement,

will be charged in accordance with the rates and fees set out in the applicable Agreement Details or as reasonably determined by Cobber and communicated to the Client in writing.

5.4 Subcontractors

The Client acknowledges and agrees that Cobber may delegate the performance of any of the Services to any of its subcontractors, at its discretion, which may change from time to time.
Cobber remains responsible to the Client for the performance of Cobber's obligations under the Agreement, and must contractually oblige its subcontractors to confidentiality obligations which are at least as onerous as the obligations of confidentiality in clause 15 (Confidential Information).

5.5 General obligations

In providing the Products and Services during the Term, Cobber will act with all due care, skill and diligence.

6. Acceptable Use

6.1 Acceptable Use Policy

The Client (and each End User) must not, and must not permit any person to, use the Products or Services to:

engage in, facilitate, or encourage any unlawful activity, including any breach of Electoral Laws, the Spam Act, the Do Not Call Register Act 2006 (Cth), the Privacy Act 1988 (Cth), or any other applicable Law;
send communications that are unsolicited commercial electronic messages in breach of the Spam Act, or that do not contain a functional unsubscribe facility where required;
make calls to individuals whose numbers are registered on the Do Not Call Register in breach of applicable Law;
harass, threaten, intimidate, defame, abuse or incite violence against any person or group;
promote or incite discrimination, hatred, or violence on the basis of race, ethnicity, religion, gender, sexual orientation, disability, or other protected attribute;
impersonate any person or entity, or falsely state or misrepresent the Client's affiliation with a person or entity;
upload, transmit or distribute any material that is unlawful, obscene, defamatory, misleading, deceptive or infringes the Intellectual Property Rights of any third party;
introduce or incorporate any malicious code, virus, trojan, worm, ransomware, spyware or any other harmful material into the Products or Services;
interfere with, disrupt, or attempt to gain unauthorised access to the Products, Services, Cobber's systems, or any other user's account;
reverse engineer, decompile, scrape, or attempt to derive the source code of the Products or Services, except to the extent expressly permitted by Law;
resell, sublicense, lease, redistribute, or commercialise any part of the Products or Services;
use the Products or Services to build or support a competing product or service;
use the Products or Services in a manner that is likely to damage Cobber's reputation, goodwill, or the integrity of the Cobber Platform; or
use the Products or Services in any way that is inconsistent with this Agreement.

6.2 Right to refuse or terminate service

Cobber reserves the right, acting reasonably, to refuse to provide, suspend, or terminate the Products and Services to any Client or End User whose activities:

are unlawful, or are reasonably suspected by Cobber to be unlawful;
materially breach this Agreement;
advocate, promote, facilitate or incite violence, terrorism, or serious criminal conduct; or
involve harassment, abuse, threats, or incitement to violence against any person or group.

Cobber's exercise of this right does not affect any other rights or remedies available to Cobber under this Agreement or at Law.

6.3 Monitoring

Cobber does not actively monitor content sent or stored using the Products or Services, but may do so if it reasonably considers it necessary to investigate a suspected breach of this Agreement, to comply with its obligations under Law, or to respond to a lawful request from a Government Body.

7. Electoral and political compliance

7.1 Client responsibility

The Client acknowledges that the Cobber Platform may be used in connection with political, advocacy, membership, fundraising and campaigning activities, and that a range of Laws regulate those activities. The Client is solely responsible for ensuring that its use of the Products and Services complies with all applicable Laws, including:

Electoral Laws, including requirements relating to electoral authorisations, communication disclaimers, and the timing and content of electoral communications;
political donation and expenditure disclosure Laws, including caps on donations and reporting obligations imposed by the Australian Electoral Commission and equivalent State and Territory authorities;
fundraising Laws, including registration requirements for fundraising activities in any jurisdiction in which the Client operates;
Privacy Laws, including obligations relating to the collection, use and disclosure of Personal Information of members, supporters, volunteers and donors; and
the Spam Act and the Do Not Call Register Act 2006 (Cth) in respect of any electronic messages or calls made using the Products or Services.

7.2 Authorisations and disclaimers

The Client is solely responsible for ensuring that any electoral communication, advertisement, or public communication generated or distributed using the Products or Services contains the authorisations, disclaimers, and other statements required by applicable Law. Cobber does not review, approve, or warrant the legal sufficiency of any communication generated using the Products or Services.

7.3 Donations and payments

If the Client uses the Products or Services to accept donations, membership fees or other payments, the Client is responsible for:

compliance with all applicable Laws relating to the acceptance, processing, receipting and disclosure of donations;
complying with the terms and conditions of any third-party payment processor used through the Products or Services; and
ensuring that donors and payers are provided with the information required by Law.

7.4 No legal advice

The Client acknowledges that Cobber is not a legal, accounting, compliance, electoral, or tax advisor. Any guidance, default settings, templates, forms or content provided by Cobber is general in nature and does not constitute legal or professional advice. The Client must obtain its own independent advice as required.

8. Content and communications

8.1 Client content

The Client is solely responsible for all Client Data and content transmitted, uploaded, generated, stored, or distributed using the Products or Services, including the content of any emails, SMS, landing pages, donation pages, petitions, and other communications. Cobber is not the author, publisher, or editor of any such content, and does not endorse, adopt, or warrant any such content.

8.2 No content moderation obligation

Cobber is not obliged to review, approve, edit, moderate, or remove any content sent or stored using the Products or Services.
Cobber does not take responsibility for the accuracy, legality, decency, or appropriateness of any content created or distributed by the Client or End Users.
Notwithstanding clause 8.2(a), Cobber reserves the right (but not the obligation) to remove, redact, block, or disable access to content where Cobber reasonably believes that the content breaches this Agreement, any Acceptable Use Policy, or applicable Law, or exposes Cobber or any other person to Liability.

8.3 Deliverability

The Client acknowledges that email, SMS, and other messaging deliverability is dependent on factors outside Cobber's control (including recipient mail server policies, sender reputation, list hygiene, content filters and third-party deliverability providers), and that Cobber does not guarantee the delivery, open, click or conversion rates of any communication sent using the Products or Services.

9. Suspension

9.1 Suspension

Cobber may temporarily suspend (in part or in whole), without prior or further notice to the Client, the Products or Services if:

there is a malfunction, fault or breakdown of any of Cobber's equipment or if Cobber is required to undertake the repair, maintenance or service of any part of the Products;
Cobber is required by Law to do so;
an event of Exceptional Circumstance occurs, which affects Cobber's ability to provide the Products or Services;
there is a Claim made that exposes Cobber to liability or prosecution for an offence or liability to a statutory prosecution as a direct result of the provision of the Products or Services by Cobber;
Cobber determines that the Client is in breach of the Agreement, including a breach of clause 6 (Acceptable Use) or clause 7 (Electoral and political compliance); or
Cobber reasonably suspects that the Client's account has been compromised, or that the Products or Services are being used in a manner that threatens the security, integrity or availability of the Cobber Platform.

9.2 Effect of suspension

Suspension in accordance with clause 9.1 will not affect any right which accrues prior to, or after, suspension of Cobber's obligations under the Agreement, or the Client's obligation to pay Fees accrued prior to suspension.

10. Disclaimers

In accessing and using the Products and Services, the Client acknowledges and agrees that:

any statement, information or advice provided by Cobber, or Output generated via use of Cobber's Products and Services, is general in nature and does not constitute legal, financial, accounting, electoral, compliance, fundraising or employment advice;
except where expressly provided under this Agreement, Cobber disclaims all representations, warranties, guarantees or representations that:
1. the Products and Services, or any statement, information or advice provided by Cobber will ensure the Client's compliance with any applicable Laws (including Electoral Laws, Privacy Laws, and the Spam Act);
2. the Products and Services are free from any errors or defects;
3. the Products and Services will be uninterrupted or available at any particular time; and
4. the Products and Services are accurate or complete.

11. Payment

11.1 Fees

The Client will pay the Fees in consideration of the Products and Services.
The Fees are calculated and charged as specified in the Agreement Details or, if no Agreement Details specify the rates, at the rates published on cobberhq.com.au from time to time.
Unless otherwise specified in the Agreement Details, the Fees are billed in advance on a recurring basis (monthly or annually, depending on the Client's plan).

11.2 Payment method

The Client will pay the Fees using the payment method specified in the Agreement Details, which may include credit card, direct debit, or electronic funds transfer.
Where the Client has elected to pay the Fees by credit card or direct debit by providing its credit card or direct debit account details to Cobber, Cobber will automatically charge the Fees to the credit card or direct debit account provided on each billing date.
If the Client disputes the amount of Fees charged to the Client's credit card or direct debit account, the Client must notify Cobber in writing within seven days of such charge.

11.3 Invoicing

Unless otherwise specified in the Agreement Details, all Tax Invoices must be paid within 14 days of the date the relevant invoice is issued.
Cobber may issue Tax Invoices by electronic means.

11.4 Annual Plans

If the Client has elected an Annual Plan:

the Fees for the Annual Plan must be paid in accordance with the invoicing schedule in the Agreement Details;
no refund will be payable to the Client in respect of Fees already paid if the Client terminates the Agreement for convenience before the end of the then-current annual period, cancels their subscription for convenience, or reduces their usage below the level used to calculate the Fees; and
the Client acknowledges that any pre-paid Fees retained by Cobber on such termination or reduction are deemed a reasonable pre-estimate of the likely losses incurred by Cobber.

11.5 Late or non-payment

If the Client fails to pay the Fees within 14 days of receipt of a Tax Invoice or the automatic charge described in clause 11.2(b) is rejected, Cobber will make reasonable efforts to notify the Client of the relevant non-payment, and subsequently may do any one or more of the following:

restrict or suspend the Products or Services in accordance with clause 9 (Suspension);
charge interest on overdue amounts at the rate of 2% per annum above the Reserve Bank of Australia target cash rate, accruing daily from the date payment was due until the date of actual payment; or
terminate the Agreement, as permitted pursuant to clause 19.1.

11.6 Payment disputes

If there is a bona fide dispute about whether a Fee, credit, rebate, refund or other amount contemplated by the Agreement is payable or available:

the Client must notify Cobber within 10 Business Days from the date of receipt of the Tax Invoice or the account charge, of the details and nature of the dispute;
the Client may withhold the amount in dispute until resolution of the dispute;
the Client must pay Cobber the portion of the invoiced amounts not in dispute;
the parties must continue to perform their obligations under the Agreement; and
appropriate Personnel from both parties with authority to resolve the dispute must meet within 14 days of the date of the Client's notice and make a bona fide attempt to settle the disputed amount, failing which the dispute will be referred to the dispute resolution process set out in clause 24 (Dispute resolution).

12. Obligations of the Client

12.1 General obligations

The Client will (in the manner permitted by the Agreement):

provide Cobber with all information and co-operation reasonably necessary to enable Cobber to provide the Products and Services and comply with its obligations under the Agreement;
take reasonable steps to ensure that End Users:
1. are suitably trained on how to use the Products and Services;
2. employ and implement the correct use of the Products and Services in accordance with any manuals or documentation supplied with the Products and Services;
3. comply with the Acceptable Use Policy and all applicable Laws; and
4. comply with any other reasonable directions of Cobber in relation to the use of the Products and Services;
provide Cobber with all reasonable information and (if applicable) access to its computer or other device and network systems in order for Cobber to provide the Products and Services in accordance with the terms of the Agreement;
promptly notify Cobber of any event or incident that is likely to or will impact on access and use of the Products and Services, the provision of the Products and Services or any other obligation of Cobber, including any actual or suspected unauthorised access to the Client's account;
comply with all of Cobber's reasonable directions provided from time to time in relation to the use of the Products and Services;
maintain the confidentiality of any login credentials used to access the Products and Services, and be responsible for all activities under its account; and
perform its duties under the Agreement with care, skill and diligence, and in accordance with all applicable Laws.

12.2 Use restrictions

Unless otherwise expressly authorised in writing by Cobber, the Client will not (and must not permit or procure any End Users, its Personnel or subcontractors to):

reverse engineer or decompile the Products or Services;
copy, modify, reproduce, make error corrections to or otherwise modify or adapt the Products or Services to create any derivative works based on the Products or Services;
use, or permit, the Products or Services to be accessed or used in any way other than in a manner expressly permitted by the Agreement;
attempt to gain unauthorised access to any Materials other than those which the Client has been given express permission to access under the Agreement;
challenge the validity of any Intellectual Property Rights of Cobber (or an Associated Entity of Cobber);
permit the Products or Services to be accessed in any unauthorised way;
re-sell, lease, redistribute or commercialise any part of the Products or Services; or
introduce or incorporate any malicious code, virus, trojan, worm, ransomware, spyware or any other harmful material into the Products or Services.

12.3 Mutual obligations

Each party must promptly inform the other party of any unauthorised use of the Intellectual Property Rights that the first party is, or becomes, reasonably aware of.

13. Intellectual Property Rights

13.1 Ownership — Cobber IP

Ownership of Cobber IP is not modified by the Agreement.
The Intellectual Property Rights in Cobber IP remain vested in Cobber.

13.2 Ownership — Client IP and data

Ownership of Client IP is not modified by the Agreement.
The Intellectual Property Rights in Client IP remain vested in the Client.
The Client grants to Cobber a non-exclusive, non-transferable, worldwide, royalty free licence to use Client IP, Client Data (to the extent the Client may have any rights in relation to such Client Data) and Materials provided to Cobber for the purposes of performing obligations under the Agreement, for the Term.
For clarity, the Client and Cobber acknowledge that Cobber Data may incorporate or be derived, at least in part, from Client Data, and accordingly, while the Client shall have exclusive title and ownership over the Client Data, Cobber shall retain exclusive title and ownership to the Cobber Data.

13.3 Feedback

The Client grants Cobber a perpetual, irrevocable, worldwide, royalty-free licence to use any suggestions, feedback, ideas, enhancement requests, recommendations or other feedback provided by the Client or its Personnel relating to the Products and Services, without attribution or compensation.

13.4 Prohibited activities

Unless otherwise expressly authorised in writing by Cobber, the Client will not (and must not permit or procure its Personnel or subcontractors to):

do or permit any other act which, to the best of its information, knowledge and belief, it considers infringes Cobber's Intellectual Property Rights;
do or permit an act that uses the Products or Services in a way that could infringe a third party's Intellectual Property Rights; or
use the Products or Services in any way that could damage the reputation of Cobber.

14. Storage of Client Data

Cobber must have in place at all times during the Term, a data back-up plan consistent with good industry practice in Australia (which will be provided to the Client on request) and Cobber must keep back-ups of the Client Data in accordance with that plan for the duration of the Term.
The Client acknowledges and agrees that Cobber may hold Client Data in its systems for the duration of the Term and post-termination or expiry of the Agreement, but is not obligated to store or maintain Client Data beyond the date of termination or expiry (except as provided in clause 20.1(f)).
The Client is responsible for maintaining its own backups of Client Data and Outputs that it considers business-critical.

15. Confidential information

15.1 Non-disclosure

Each party must keep the other party's Confidential Information confidential.
A party must not, without the prior written approval of the other party, disclose the other party's Confidential Information.
Each party must take all reasonable steps to ensure that its Personnel (or subcontractors) engaged for the purposes of the Agreement, do not make public or disclose the other party's Confidential Information.

15.2 Return of Confidential Information

Except as expressly permitted under the Agreement, a party who has received Confidential Information from the other party under the Agreement must, on the request of the other party and as directed by that party:
1. immediately deliver all documents or other Materials containing Confidential Information of the disclosing party, and in the case of the Client, Client Data in a form suitable and accessible to the Client, which are in the recipient party's possession, power or control, or in the possession, power or control of persons who have received Confidential Information from it (Confidential Material); or
2. destroy all Confidential Material (and certify the destruction to that party) as soon as possible.
Clause 15.2(a) does not apply to the delivery up or destruction of the Confidential Materials:
1. to the extent that the recipient party keeps a copy for the purposes of archive (including electronic backup data storage), professional indemnity insurance, legal advice or legal compliance, provided that the recipient party keeping material on that basis must (on request made by the disclosing party at any time) inform the disclosing party of the recipient party's retention arrangements and promptly give written assurances as the disclosing party reasonably requires regarding protection against unauthorised use or disclosure (including as to systems security); and
2. of the Client which Cobber requires in order to comply with its obligations under the Agreement, which upon termination or expiry of such obligations must then be delivered or destroyed in accordance with this clause 15.2.

15.3 Acknowledgement as to types of remedy

Each party acknowledges and accepts that:

the other party would suffer financial and other loss and damage if its Confidential Information was disclosed to any other person or used for any purpose other than as permitted by the Agreement and accordingly that monetary damages may be an insufficient remedy; and
in addition to any other remedy which may be available in law or equity, the other party is entitled to injunctive relief to prevent a breach of any of clause 15.1 and to compel specific performance of clause 15.1.

15.4 Survival

This clause survives the termination or expiration of the Agreement for the period set forth in clause 15.2.

16. Privacy Laws and Security

16.1 Privacy Laws

Each party agrees to comply with all Privacy Laws in relation to any and all Personal Information that it collects from the other party in connection with the Agreement.
The Client warrants that it has sought the necessary consent required by Privacy Laws, the Spam Act and the Do Not Call Register Act 2006 (Cth) from all individuals whose Personal Information (including Recipient Data) it causes to be disclosed to Cobber or otherwise held in connection with the Products or Services, to enable Cobber (or its Personnel and its related parties):
1. to collect such Personal Information using the Products or Services;
2. to hold and use that Personal Information for the purposes of Cobber performing its obligations under the Agreement; and
3. where applicable, to directly contact individuals using the Personal Information held by Cobber in connection with clauses 16.1(b)(i) and 16.1(b)(ii) above.
The Client is responsible for providing all notices and obtaining all consents required under Privacy Laws in respect of Recipient Data, including any notices or consents required in relation to:
1. the collection of sensitive information such as political opinions, membership of a political organisation, religious beliefs or union membership; and
2. the disclosure of Recipient Data to Cobber and its service providers, including where such service providers may be located outside Australia.
Within a reasonable period of becoming aware of an Eligible Data Breach (as defined under the Privacy Laws) of Client Data has occurred, Cobber will provide written notice of such breach and any material information available to it to the Client. Cobber agrees to provide reasonable assistance required by the Client, if any, to investigate such Eligible Data Breach.

16.2 Security

The Client must:

use its best endeavours to assist Cobber in preventing the introduction of any computer program virus or other code that is harmful, destructive, disabling or which assists in or enables theft or alteration of Client Data, including by following all reasonable instructions by Cobber to enhance the security of the systems used by the Client;
use current and updated commercially available virus detection software; and
keep its account credentials secure and promptly notify Cobber of any actual or suspected unauthorised access.

16.3 Privacy Policy

The Client acknowledges that the Privacy Policy forms part of this Agreement and governs Cobber's collection, use, and disclosure of Personal Information.

17. Liability

17.1 Exclusion of liability

To the extent permitted by Law, in no event will Cobber be liable to the Client for Consequential Loss even if Cobber has been made aware of the possibility of such Consequential Loss (including any Liability in connection with backups (or lack thereof) of Client Data) prior to entering into the Agreement.
The Client agrees that Cobber will have no Liability for Claims made by third parties arising out of or in connection with the Agreement, including on account of Claims made by members, supporters, donors, volunteers, Employees, recipients of communications sent using the Products or Services, or any Government Body.

17.2 Consumer guarantees

Cobber's Products and Services may come with guarantees that cannot be excluded under the Australian Consumer Law.
The following applies where the Australian Consumer Law applies to the provision of any products under the Agreement:
1. Cobber's products come with guarantees that cannot be excluded under the Australian Consumer Law.
2. The Client is entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage.
3. The Client is also entitled to have the products repaired or replaced if the products fail to be of acceptable quality and the failure does not amount to a major failure.
The following applies where the Australian Consumer Law applies to the provision of any services under the Agreement:
1. Cobber's services come with guarantees that cannot be excluded under the Australian Consumer Law.
2. For major failures with the service, the Client is entitled:
  1. to cancel the service contract with Cobber; and
  2. to a refund for the unused portion of, or compensation for its reduced value.
3. The Client is also entitled to be compensated for any other reasonably foreseeable loss or damage.
4. If the failure does not amount to a major failure, the Client is entitled to have the problems with the service rectified in a reasonable time and, if this is not done, to cancel the contract and obtain a refund of any unused portion of the contract.

17.3 Implied terms

To the full extent permitted by Law, any term which would otherwise be implied into the Agreement is excluded.
In the event any Law implies or imposes terms into this Agreement which cannot be lawfully excluded, such terms will apply, save that the liability of Cobber for breach of any such term will be limited in accordance with clause 17.4(a).

17.4 Limitation of liability

Re-performance. To the extent Cobber is found Liable in connection with the Agreement, its Liability shall be limited (at the option of Cobber) to any one or more of the following:
1. re-supplying products or services to which the Liability relates or the supply of equivalent products or services; or
2. reimbursing the Client (subject to clause 17.4(b)) for paying someone else to supply the products or services to which the Liability relates.
Liability cap. To the extent that Cobber is Liable in connection with the Agreement (whether in contract, under a right of indemnity, tort or statute), then Cobber's cumulative Liability in the aggregate (to the fullest extent permitted by law) shall in no event exceed the sum of the Fees paid by the Client to Cobber in respect of the Product or Service to which the Liability relates during the 12 months immediately preceding the event giving rise to the Liability.

18. Indemnity

18.1 Client indemnity

The Client indemnifies the Indemnified Parties, and will keep indemnified and hold the Indemnified Parties harmless, against any:

Claims against the Indemnified Parties; or
Loss suffered by the Indemnified Parties,

arising from:

error, inconsistency or failure:
1. in Client Data or Outputs; or
2. in the Client's instructions to Cobber or use of the Products or Services;
any contravention (or alleged contravention) of Law by the Client (including any related fines or penalties), including any breach of Electoral Laws, Privacy Laws, the Spam Act, or the Do Not Call Register Act 2006 (Cth);
any investigation or determination by a Government Body or regulatory authority relating to the Client's electoral, political, fundraising, or other regulated activities;
any fraud or wilful misconduct of the Client, or their Personnel;
any failure by the Client or the Client's Personnel to verify the accuracy of the Products, Services or Outputs;
any Claims made by members, supporters, volunteers, donors, or recipients of communications sent using the Products or Services, including Claims in respect of consent, authorisation, content or deliverability;
the introduction or incorporation of any malicious code, virus, trojan, worm, ransomware, spyware or any other harmful material into the Products or Services by the Client or Client's Personnel (whether intentionally or due to negligence);
any breach of clause 6 (Acceptable Use) or clause 7 (Electoral and political compliance) by the Client or its End Users; and
any damage to Cobber's (or any of the other Indemnified Parties') reputation or goodwill caused by:
1. the Client's negligent or fraudulent use of the Products or Services;
2. any public association between Cobber and the Client; or
3. the Client's failure to comply with applicable Law.

18.2 Cobber indemnity

Cobber will indemnify the Client and will keep indemnified and hold the Client harmless, against Loss arising from a final judgment or settlement against the Client directly attributable to the Gross Negligence of Cobber in supplying the Products and Services.

19. Termination

19.1 Termination for cause

Either party (First Party) may terminate the Agreement immediately by written notice upon the occurrence of one of the following events:

if the other party is in breach of the Agreement and that other party has failed to remedy the breach within 1 calendar month of a written notice to it from the First Party, specifying the breach and requiring it to be remedied;
if the other party is in breach of the Agreement and that breach is not capable of remedy, as reasonably determined by the First Party; or
an Insolvency Event occurs in respect of the other party.

In addition, Cobber may terminate the Agreement immediately by written notice if the Client breaches clause 6 (Acceptable Use) or clause 7 (Electoral and political compliance) in a manner that, in Cobber's reasonable opinion, is serious, repeated, or incapable of remedy.

19.2 Termination by Client

If the Client is on a Monthly Plan, the Client may terminate the Agreement for any reason at the end of any monthly billing cycle by providing written notice prior to the start of the next billing cycle. Termination takes effect at the end of the then-current billing cycle.
If the Client is on an Annual Plan, the Client may terminate the Agreement for any reason by providing at least 30 days' written notice prior to the expiry of the then-current annual period. Termination takes effect at the expiry of the then-current annual period.

19.3 Termination by Cobber for convenience

Cobber may terminate the Agreement for any reason by providing at least 30 days' written notice to the Client. If Cobber terminates under this clause, Cobber will refund any pre-paid Fees in respect of the period after the effective date of termination.

19.4 No prejudice of rights

Termination shall not prejudice or affect any right or action which shall have accrued or shall thereafter accrue to either party.

20. Consequences of termination or expiration

20.1 Consequences of termination or expiration

Upon termination or expiration of the Agreement:

Cobber will cease provision of the Products and Services;
Cobber is entitled to retain all pre-paid Fees (except as provided in clause 19.3);
the licence granted to Cobber under clause 13.2(c) terminates (save to the extent required for Cobber to comply with clause 20.1(f));
all monies owing under the Agreement become immediately payable and due;
each party must return or destroy the other party's Confidential Information in accordance with clause 15.2; and
Cobber will make the Client Data available to the Client for download (in the format nominated by Cobber) for 30 days post-termination or expiration of the Agreement, after which Cobber may delete the Client Data in accordance with its data retention practices.

20.2 Client acknowledgement

The Client acknowledges and agrees that any pre-paid Fees retained by Cobber upon termination of the Agreement are deemed a reasonable pre-estimate of the likely losses incurred by Cobber as a result of the early termination of the Agreement.

20.3 Survival

The following clauses survive termination or expiration of the Agreement: clause 13 (Intellectual Property Rights); clause 15 (Confidential Information); clause 17 (Liability); clause 18 (Indemnity); this clause 20; clause 23 (Governing law and jurisdiction); and clause 24 (Dispute resolution).

21. Goods and Services Tax

21.1 GST exclusive

Unless expressly stated to the contrary, all amounts expressed in the Agreement are exclusive of GST.

21.2 Recipient to pay Supplier

If a party (the Supplier) is obliged under the GST Law to pay an amount of GST for a taxable supply made by the Supplier to another party (the Recipient) under the Agreement, the Recipient must pay the Supplier an amount equal to the GST payable on the supply by the Supplier.
The Recipient must pay the amount referred to in this clause 21.2 and any interest, penalties, fines or expenses relating to the GST, in addition to and at the same time as the consideration otherwise payable by the Recipient for the supply.

21.3 Tax invoice

If requested by the Recipient, the Supplier must provide the Recipient with a Tax Invoice on or before payment of the amounts required by clause 21.2.

22. Publicity

The Client agrees Cobber may promote the Client's use of the Products and Services on Cobber's website, responses to requests for proposals, and external presentations for the purposes of promoting the Products and Services, including by displaying the Client's name and logo. Cobber may also promote the Client's use of the Products and Services in case studies and press releases where the Client's prior permission is obtained. The Client may opt out of the use of its name and logo at any time by giving written notice to Cobber at info@cobberhq.com.au, in which case Cobber will cease such use within a reasonable time.

23. Governing law and jurisdiction

The Agreement is governed by and construed in accordance with the laws of Queensland, Australia, and each party irrevocably submits to the non-exclusive jurisdiction of the courts of Queensland, Australia.

24. Dispute resolution

24.1 Dispute Resolution Process

Subject to clause 24.1(b), a party claiming that a dispute or disagreement has arisen out of, or in connection with, the Agreement (Dispute) will, within 5 Business Days of the Dispute arising, give written notice to the other party providing particulars of the Dispute (Notice of Dispute) and, designating which of its Authorised Officers has authority to settle the Dispute.
The parties agree that the dispute resolution process in this clause 24.1 does not apply to Disputes in connection with the calculation or invoicing of the Fees, which are dealt with under clause 11.6.
The parties will meet at a location or arrange a telephone or video conference as agreed between the parties in writing within 5 Business Days of receipt of the Notice of Dispute in accordance with clause 24.1(a) to seek to resolve the dispute amicably.
If the Dispute has not been resolved within 20 Business Days of receipt of the Notice of Dispute in accordance with clause 24.1(a) the parties may agree to refer the dispute to mediation administered by a mediator recommended and accredited by the Resolution Institute in accordance with the Resolution Institute's professional mediation rules or an equivalent professional mediator in any jurisdiction outside of Australia. The party issuing the Notice of Dispute must pay the costs of the mediator appointed pursuant to this clause.
If the Dispute has not been resolved within 30 Business Days of receipt of the Notice of Dispute in accordance with clause 24.1(a), then (on the basis that the exhaustion of the dispute resolution process set out in this clause 24.1 is a condition precedent to the right of either party to commence court proceedings in relation to the Dispute) the party who first served the Notice of Dispute may commence litigation.
Any mediation discussions and proceedings undertaken in accordance with clause 24.1 constitute Confidential Information and will take place in Brisbane (or such other location as the parties may agree between themselves in writing).

24.2 Urgent relief

Nothing in the Agreement shall prevent either party seeking injunctive or urgent declaratory relief for any matter (including to protect Confidential Information) arising out of, or in connection with, the Agreement.

24.3 Obligations continue

Despite the existence of a Dispute, each party will at all times continue to fulfil all obligations under the Agreement, including in respect of confidentiality.

25. Miscellaneous

25.1 Notices

The parties may give each other notice under the Agreement by email or other Electronic Communication, or by post, at info@cobberhq.com.au (attention of the Directors) or the Client's notified address, or at the address otherwise notified to the other party from time to time.
Except as otherwise provided in the Agreement, any notice or other communication to or by any party must be in writing and in the English language and be signed by the party or by an Authorised Officer of the sender.

25.2 Electronic Communication

Each party consents to:

information in connection with the Agreement being given by an Electronic Communication; and
an electronic signature being used to identify each party and to indicate each party's intention in relation to the information communicated (including an intention to be bound by the Agreement).

25.3 Assignment

The Client will not assign, transfer or novate all or any part of its rights or obligations under or relating to the Agreement or grant, declare, create or dispose of any right or interest in it, without the prior written consent of Cobber.
Cobber may assign, transfer or novate all or any part of its rights or obligations under or relating to the Agreement without prior written notice to the Client.

25.4 Severability

If a provision of the Agreement is illegal, invalid, unenforceable or void in a jurisdiction it is severed for that jurisdiction and the remainder of the Agreement has full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected.

25.5 Further assurance

Each party must promptly at its own cost do all things (including executing and delivering all documents) necessary or desirable to give full effect to the Agreement and the transactions contemplated by it.

25.6 Taxes

The Client must:

pay all Taxes which may be payable or determinable in connection with the execution, delivery, performance or enforcement of the Agreement or any payment or receipt or of any transaction contemplated by the Agreement;
if the Client is required by Law to deduct or withhold Taxes from the Fees or any payment under the Agreement, make the required deductions and withholdings, pay in accordance with the relevant law the full amount deducted or withheld, deliver to Cobber the receipt for each payment and increase the amount of the payment to Cobber to an amount which will result in the receipt by Cobber of the full amount which would have been payable to Cobber if no deduction or withholding had been required; and
indemnify Cobber against any liabilities resulting from any delay or omission by the Client to pay any Taxes.

25.7 Indemnities

Subject to any other provision of the Agreement, the indemnities in the Agreement are continuing obligations, independent from the other obligations of the parties under this Agreement and continue after the Agreement ends. It is not necessary for a party to incur expense or make payment before enforcing a right of indemnity under the Agreement.

25.8 Waiver

A party's waiver of a right under or relating to the Agreement, whether prospectively or retrospectively, is not effective unless it is in writing and signed by that party. No other act, omission or delay by a party will constitute a waiver of a right.

25.9 Counterparts

The Agreement may be executed in any number of counterparts, each of which will be considered an original but all of which will constitute one and the same instrument. A party who has executed a counterpart of the Agreement may deliver it to, or exchange it with, another party by emailing a PDF copy of the executed counterpart to that other party.

25.10 Fundamental Condition

As a fundamental condition of the Agreement, the Client acknowledges and agrees that any statement, information or advice provided by Cobber and its Personnel (including information displayed on cobberhq.com.au and in its marketing and promotional material) prior to, during and after the expiration of the Agreement is general in nature and should not be relied upon by any person as legal advice or otherwise.

25.11 Whole agreement

The Agreement:

is the entire agreement and understanding between the parties relating to the subject matter of the Agreement; and
supersedes any prior agreement, representation (written or oral) or understanding on anything connected with that subject matter.

Schedule 1 — Data Processing Terms

These Data Processing Terms (DP Terms) form part of the Agreement between Cobber and the Client and apply whenever Cobber Processes Recipient Data on behalf of the Client in connection with the Products and Services. If there is any inconsistency between these DP Terms and the rest of the Agreement, these DP Terms prevail to the extent of the inconsistency in relation to the Processing of Recipient Data.

1. Definitions

In these DP Terms:

APP means an Australian Privacy Principle set out in Schedule 1 to the Privacy Law.

Data Subject means an individual who is the subject of Recipient Data.

Eligible Data Breach has the meaning given in the Privacy Law.

Processing means any operation or set of operations performed on Recipient Data, whether or not by automated means, including collection, recording, organisation, structuring, storage, adaptation, retrieval, consultation, use, disclosure, transmission, dissemination, alignment, combination, restriction, deletion, or destruction.

Sub-processor means any third party engaged by Cobber to Process Recipient Data on Cobber's behalf in connection with the Products and Services.

Sensitive Information has the meaning given in the Privacy Law, and includes information about a Data Subject's political opinions, membership of a political association, membership of a trade union, religious beliefs or affiliations, philosophical beliefs, racial or ethnic origin, sexual orientation, and health.

Capitalised terms not defined in these DP Terms have the meaning given in the main body of these Terms of Service.

2. Roles of the parties

The parties acknowledge that, in respect of Recipient Data:
1. the Client is the APP entity that determines the purposes for which, and means by which, the Recipient Data is collected and Processed; and
2. Cobber Processes Recipient Data on the Client's behalf, as a contracted service provider, only for the purposes of providing the Products and Services or as otherwise permitted under the Agreement.
Each party will comply with its own obligations under the Privacy Law, the Spam Act, the Do Not Call Register Act 2006 (Cth), and other applicable privacy, data protection and electronic communications Laws in relation to Recipient Data.

3. Client obligations and warranties

The Client warrants and undertakes that:

it has provided all notices, and obtained all consents and authorisations, required under the Privacy Law (including under APP 3 for Sensitive Information, APP 5 for collection notification, and APP 6 and APP 8 for use and overseas disclosure), the Spam Act, and the Do Not Call Register Act 2006 (Cth) in respect of the Recipient Data it causes to be held in, uploaded to, or Processed using the Products and Services;
its collection of the Recipient Data was lawful, fair, and for a purpose reasonably necessary for the Client's functions or activities;
it has a lawful basis to disclose the Recipient Data to Cobber and to authorise Cobber's Processing of Recipient Data, including disclosure to Sub-processors located outside Australia;
it will not cause Cobber to Process Recipient Data in a manner that would cause Cobber to contravene the Privacy Law, the Spam Act, the Do Not Call Register Act 2006 (Cth), or any other applicable Law; and
it will keep the Recipient Data accurate, complete, and up to date, and will promptly action any rectification, access, or deletion requests from Data Subjects where required to do so.

4. Cobber's Processing obligations

Cobber will:

Process Recipient Data only:
1. for the purposes of providing the Products and Services, performing its obligations under the Agreement, and complying with applicable Law;
2. in accordance with the Client's documented instructions, which the parties acknowledge are set out in or reasonably implied by the Agreement, the Client's configuration of the Products and Services, and any further written instructions the Client gives Cobber from time to time; and
3. to generate Cobber Data in aggregated and de-identified form for Cobber's internal analytics, product development, and service improvement, provided that Cobber Data cannot reasonably be re-identified to any Data Subject;
take reasonable steps to protect Recipient Data from misuse, interference, loss, unauthorised access, modification, or disclosure as required by APP 11, including by implementing the security measures described in clause 7 of these DP Terms;
ensure that its Personnel authorised to Process Recipient Data are bound by written confidentiality obligations at least as onerous as those set out in clause 15 of these Terms of Service;
not sell Recipient Data or otherwise disclose Recipient Data other than as permitted by the Agreement or required by Law; and
not disclose Recipient Data to any Government Body except where required by Law or by a lawful request from a Government Body, and (unless prohibited by Law) will use reasonable endeavours to notify the Client of any such request before responding.

5. Sub-processors

The Client authorises Cobber to engage Sub-processors for the purposes of providing the Products and Services, including Sub-processors in the following categories:
1. cloud hosting and infrastructure providers;
2. email and SMS delivery providers;
3. payment processing providers;
4. analytics, error monitoring, and performance monitoring providers;
5. customer support, communication, and ticketing tools;
6. security monitoring and fraud detection providers;
7. address validation and electorate assignment providers; and
8. identity verification providers (where required for certain features).
Cobber will maintain a list of current Sub-processors that is available to the Client on request.
Cobber will impose on each Sub-processor contractual obligations to protect Recipient Data that are substantially consistent with the obligations in these DP Terms.
Cobber will give the Client at least 30 days' notice (which may be given by email or via the Cobber Platform) before engaging a Sub-processor in a category materially different from the categories listed in clause 5.1. If the Client reasonably objects to a new Sub-processor on genuine data protection grounds, the Client's sole remedy is to terminate the affected Products or Services in accordance with clause 19 of these Terms of Service.

6. Sensitive Information

The parties acknowledge that, given the nature of Cobber's Products and Services, Recipient Data is likely to include Sensitive Information, including information about Data Subjects' political opinions and membership of a political association.
The Client must not cause Cobber to collect or Process Sensitive Information unless the Client has obtained the consent of the relevant Data Subject as required under APP 3.3, or another lawful basis under the Privacy Law applies.
Cobber will apply heightened operational controls to Sensitive Information, including restricting access to Sensitive Information to Personnel whose role requires access.

7. Security

Cobber will implement and maintain reasonable technical and organisational security measures designed to protect Recipient Data against the risks referred to in APP 11, including:
1. encryption of Recipient Data in transit and at rest using industry-standard protocols;
2. access controls that restrict access to Recipient Data to Personnel who require access for their role, with authentication and logging of access;
3. network security controls including firewalling and intrusion detection;
4. periodic review and testing of security controls;
5. secure development practices for the Cobber Platform; and
6. documented incident response procedures.
Cobber will review its security measures from time to time and may update them, provided the updates do not materially degrade the overall level of protection.

8. Data Subject requests

The Client is responsible for responding to requests from Data Subjects to exercise their rights under the Privacy Law, including rights of access to, and correction of, Personal Information.
Cobber will provide reasonable assistance to the Client in responding to such requests, to the extent the Client cannot do so through the self-service tools made available within the Products and Services. Cobber may charge a reasonable fee for assistance that materially exceeds the assistance reasonably expected in the ordinary course.
If Cobber receives a request directly from a Data Subject in respect of Recipient Data, Cobber will (unless prohibited by Law) promptly redirect the Data Subject to the Client, or notify the Client of the request.

9. Data breach notification

Cobber will notify the Client without undue delay, and in any event within 72 hours, after becoming aware of an Eligible Data Breach affecting Recipient Data.
The notification will include, to the extent known at the time:
1. a description of the nature of the breach, including the categories and approximate number of Data Subjects and records affected;
2. the likely consequences of the breach;
3. the measures Cobber has taken or proposes to take to address the breach and mitigate any adverse effects; and
4. a point of contact at Cobber for further information.
Cobber will provide the Client with reasonable assistance to enable the Client to meet any notification obligations it has to Data Subjects or the Office of the Australian Information Commissioner under the Privacy Law.
The parties acknowledge that the Client is primarily responsible for making any notifications required under the Privacy Law to Data Subjects and the Office of the Australian Information Commissioner in respect of Recipient Data, and for liaising with regulators in respect of the breach.

10. Cross-border transfers

The Client acknowledges that Cobber may use Sub-processors located outside Australia. Those jurisdictions may have privacy and data protection laws that differ from Australian Law.
Where Cobber discloses Recipient Data to a Sub-processor located outside Australia, Cobber will take reasonable steps to ensure that the Sub-processor handles the Recipient Data in a manner consistent with the APPs, including by imposing appropriate contractual protections.
The Client is responsible for making any disclosures to Data Subjects required under APP 5 in relation to the likely overseas disclosure of Recipient Data. Cobber's Privacy Policy lists the countries in which Cobber's Sub-processors are located from time to time.

11. Retention and deletion

Cobber will retain Recipient Data for the duration of the Term and as otherwise specified in the Agreement or required by Law.
On termination or expiration of the Agreement, Cobber will make the Recipient Data available to the Client for download in accordance with clause 20.1(f) of these Terms of Service. After the 30-day download period, Cobber may delete the Recipient Data, subject to any retention required by Law or by Cobber's backup or archive systems (from which Recipient Data will be deleted in the ordinary course of backup rotation).
On the Client's written request, Cobber will provide written confirmation of deletion.

12. Information and assurance

On the Client's reasonable written request (no more than once per calendar year, unless Cobber has suffered an Eligible Data Breach affecting the Client's Recipient Data), Cobber will provide the Client with:
1. a summary of Cobber's information security program; and
2. any then-current security certifications or third-party assessment reports held by Cobber.
Any audit rights conferred by the Privacy Law that cannot reasonably be satisfied by the information referred to in clause 12.1 of these DP Terms will be exercised at the Client's cost, on reasonable prior written notice, during business hours, under confidentiality obligations, and in a manner that does not disrupt Cobber's operations or the operations of any other Cobber customer.

13. Liability

The liability of each party in connection with these DP Terms is subject to the exclusions and limits set out in clause 17 of these Terms of Service.

14. Survival

Clauses 3, 4, 6, 11, and 13 of these DP Terms survive termination or expiration of the Agreement.