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CG Spectrum Australia PTY LTD (“CGS”) thanks you for applying to use the CGS Service (as defined herein) under and subject to the terms and conditions of this agreement (the “Agreement”). By logging onto CGS’s website and clicking on the “Agree” button, you are deemed to have read, understood and to have agreed to abide by the terms and conditions of this Agreement. If you have any questions or concerns about the terms of this Agreement please contact us at [email protected] or by telephone at 1300 654 592.
THE FOLLOWING PAGES CONTAIN IMPORTANT TERMS AND CONDITIONS, WHICH MAY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM CAREFULLY.
1. This CG Spectrum Australia PTY LTD Terms and Conditions Agreement (the "Agreement") is a legal agreement between you and CG Spectrum Australia PTY LTD (“CGS”) (collectively, the "Parties" and individually, a "Party"). By logging onto the CGS website: www.cgrentamentor.com (the “CGS Website”) and clicking the “I Agree” button and/or by using any of CGS’s products and services (collectively, the “CGS Service”) YOU HEREBY AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AND YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO ABIDE BY AND COMPLY WITH ALL TERMS, CONDITIONS AND NOTICES CONTAINED IN OR REFERENCED BY THIS AGREEMENT, AND THAT YOU HAVE THE AUTHORITY TO DO SO. If you do not agree to be bound by the terms of this Agreement (including those documents referenced herein), no agreement will exist between you and CGS and CGS shall have no obligation to supply the CGS Service to you.
1.2 The CG Service is comprised of, among other things and without limitation,
If you have any questions or concerns about the terms of this Agreement, please contact us at [email protected] or by calling the numbers on the front page of this Agreement. You agree that your continued use of the CGS Service constitutes your acceptance of the terms of this Agreement, as revised.
3.1 This Agreement shall begin upon delivery of the CGS Service to you (and as confirmed in your first GCS invoice (if applicable)), and shall end upon: (a) expiry or termination of your student agreement(s) with CGS or the Third Party Service providing services to you supported by the CGS Service, as applicable, (b) expiry or termination of your Third Party Service End-User/Software License Agreement with such Third Party Service or (c) upon termination of this Agreement in accordance with the provisions set out herein, whichever first occurs. CGS reserves the right to discontinue or modify the CGS Service at any time. AS A PRECONDITION FOR YOUR USE OF THE CGS SERVICE, YOU MUST BE A PARTY IN GOOD STANDING TO A CURRENT, VALID THIRD PARTY SERVICE END-USER/SOFTWARE LICENSE AGREEMENT.
3.2 You hereby agree to be governed by any additional terms and conditions that may apply to you arising out of your accessing, browsing and/or otherwise using of the CGS Service, whether contained on the CGS Service or in any other separate agreement(s) with CGS. In the event of any conflict between this Agreement and such additional terms and conditions, this Agreement shall govern to the extent of the conflict. Additionally, you agree to comply with the terms and conditions of the applicable Third Party Service End-User/Software License Agreement between you and your Third Party Service relating to your use of the Third Party Service’s software provided to you and nothing herein shall release you from any obligations contained in such agreements.
4.2 All Third Party Services, if any, offered for use with the CGS Service are provided to you through your third party service provider(s) and shall be subject to your agreement with such third party service provider(s). CGS SHALL HAVE NO LIABILITY WHATSOEVER TO YOU OR ANY THIRD PARTY CLAIMING BY OR THROUGH YOU, FOR ANY ISSUE RELATING TO THE THIRD PARTY SERVICES, LINKED SITES, OTHER SITES OR THIRD PARTY INFORMATION, INCLUDING WITHOUT LIMITATION, THE ACCURACY, TIMELINESS OR CONTINUED AVAILABILITY OF SUCH THIRD PARTY SERVICES OR THE CONTINUED INTEROPERABILITY OF THE THIRD PARTY SERVICES WITH THE CGS SERVICE.
4.3 Any dealings with third parties conducted through the CGS Service, the Third Party Service, Linked Sites or Other Sites, including the delivery of and the payment for goods and services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and the applicable Third Party Service. CGS shall not be responsible or liable for any part of any such dealings.
5.1 In consideration of your use of the CGS Service, you agree to: (a) provide true, accurate, current and complete information about yourself where reasonably required by CGS, including without limitation, your account and billing information (collectively, "Personal Information") and; (b) maintain and promptly update the Personal Information to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or CGS has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, CGS has the right to suspend or terminate this Agreement and refuse any and all current or future use of CGS Service (or any portion thereof). You acknowledge that CGS's ability to provide the CGS Service depends upon your provision of the Personal Information to CGS, and that your failure to provide true, accurate, current and complete Personal Information to CGS may result in delays or non-performance of the CGS Service for which CGS is not responsible.
5.2 You are responsible for all activities undertaken by you using the CGS Service, including, without limitation, the nature, purpose, content and use by you of the CGS Service. All such activities are at your own risk. You shall not use, nor permit others to use, the CGS Service or any other CGS services provided to you in a manner or for a purpose contrary to this Agreement. In the event that you access other networks or computing resources, you agree to abide by their respective usage policies. You are responsible for all activities that occur under your password or account, and will keep your password(s) confidential. You will immediately notify CGS of any unauthorized use of your password or account or any other breach of security. You will not disrupt the functioning of the CGS Service, solicit another user's password, or otherwise act in a way that interferes with other users' use of the CGS Service. You shall not in any way distribute any computer program that damages, detrimentally interferes with, surreptitiously intercepts, or expropriates any system, data, or personal information on or available through the CGS Service.
5.3 The CGS Service is not intended for use by minors (i.e., persons under the age of majority). In the event that you, as a legal guardian, wish to allow your child or a minor to use the CGS Service, you acknowledge and agree that your child and/or the minor has your express permission to access the CGS Service. You further acknowledge that, as the legal guardian, it is your responsibility to determine whether use of the CGS Service and/or content transmitted by or through the CGS Service is appropriate for your child and/or minor as the case may be.
5.4 You are solely responsible for the selection, implementation, and performance of any and all third-party equipment, software and telecommunication equipment and services (including, without limitation, Internet email connectivity and air time services used in connection with the CGS Service). You are responsible for ensuring that the email system and computer with which you choose to use the CGS Service or any portion thereof meets CGS's minimum standards for interoperability including, without limitation, processing speed, memory requirements, the choice of email server and client software and the use of dedicated Internet access for accessing Internet services, including without limitation, email.
5.5 You hereby agree that if you transfer your interest in the CGS Service without such transferee having first obtained CGS 's written permission for such transfer and without such transferee agreeing to assume all of your obligations under this Agreement (as may be amended from time to time), you remain liable under this Agreement.
6.1 You hereby agree that you will not use the CGS Service in any manner which could damage, disable, overburden, or impair the CGS Service and/or any other CGS services (or the network(s) connected to such site or services, including without limitation the networks of any Third Party Service) or interfere with any other party's use and enjoyment of the CGS Service and/or other CGS services and/or products. You will not attempt to gain unauthorized access to the CGS Service, and/or any other CGS services and/or products, other accounts, computer systems or networks connected to or accessed through the CGS Service, through hacking, password mining, phishing or any other means. You will not obtain or attempt to obtain any materials or information through any means not intentionally made available to you through the CGS Service.
6.2 You hereby agree to use the CGS Service only for the educational and study purposes intended under this Agreement. By way of example only, and not as a limitation, you agree that when using the CGS Service, you will not:
6.3 CGS has no obligation to monitor the content or users of the CGS Service and makes no representation or warranty that it will monitor the content or users of the CGS Service. However, CGS reserves the right to review materials posted to or sent through the CGS Service and, in its sole discretion, to remove any materials without notice to you and for any reason it deems, in its sole discretion to be appropriate. CGS further reserves the right to terminate your access to any or all of the CGS Service at any time, without notice, for any reason whatsoever.
6.4 You hereby acknowledge and agree CGS may be required, in accordance with the Privacy Legislation, to disclose any or all of your Personal Information as CGS deems necessary to satisfy any applicable law, regulation, legal process or governmental request.
6.5 Always use caution and common sense when giving out any personally identifying information about yourself or your children in any on-line or broadband service. CGS does not necessarily control or endorse the content, messages or information found in or placed on the CGS Service or the service of any Third Party Service and, therefore, CGS specifically disclaims any liability with regard to the CGS Service and any actions resulting from your participation in any of the same.
6.6 Materials posted to or sent through the CGS Service or any Third Party Service may be subject to limitations on size, usage, reproduction, dissemination or other requirements by CGS or by such Third Party Service including, without limitation, the Third Party Service providing you with Third Party Services. You acknowledge that such limitations may apply to your use of the CGS Service and/or the Third Party Services, and you are responsible for adhering to such limitations if you post or send such materials.
7.1 As the CGS Service may be accessed globally, if you choose to access the CGS Service from locations other than Australia, you do so on your own initiative and risk and you are responsible for compliance with all applicable local use controls, laws and regulations, including those relating to the transmission of technical data exported from or imported to Australia or the country in which you reside. Notwithstanding the foregoing, CGS makes no representation that the CGS Service is appropriate or available for use in locations outside Australia and accessing them from territories where their contents are illegal is prohibited.
8.1 You hereby agree that CGS may establish limits concerning use of the CGS Service and any products or services offered by the CGS Service, including without limitation, the maximum number of days that CGS Assets will be retained, if at all, by the CGS Service, the maximum number of Assets that may be sent from or posted on or received by an account on the CGS Service, the maximum size of any Assets that may be sent from or posted on or received by an account on the CGS Service, the maximum space that will be allotted on CGS's server(s) on your behalf, and the maximum number of times and duration you may access the CGS Service in a given period of time.
8.2 You hereby agree that CGS has no responsibility or liability whatsoever for the deletion, corruption or failure to store any Assets or other content maintained or transmitted by the CGS Service. You acknowledge that CGS reserves the right to delete without notice to you, accounts that are inactive for an extended period of time.
CGS MAKES NO WARRANTY OR REPRESENTATION THAT ANY CGS SERVICE WILL BE AVAILABLE, UNINTERRUPTED, TIMELY, SECURE, VIRUS OR ERROR-FREE.
8.3 In addition to the terms and conditions set out in this Agreement, you agree that you: (a) will not continue to send or make Assets available to a recipient if recipient has requested that you discontinue such communication; (b) will not forward or propagate chain letters of any type (including charity requests or petitions for signatures), whether or not the recipient wishes to receive such mailings; (c) will not intentionally flood any user, server, account or site with large or numerous email messages; and (d) will not forge header information or intellectual property notices.
8.4 CGS prohibits the use of accounts or network connections to collect replies of messages sent from any other provider that violates these terms and conditions of use or those of the originating provider.
9.1 THE CGS SERVICE IS PROVIDED "AS IS", "WITH ALL FAULTS" AND "AS AVAILABLE" AND AT YOUR SOLE RISK, WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND BY CGS. CGS DOES NOT WARRANT UNINTERRUPTED USE OR OPERATION OF THE CGS SERVICE, OR THAT ANY ASSETS SENT BY OR TO YOU WILL BE TRANSMITTED IN UNCORRUPTED FORM OR WITHIN A REASONABLE PERIOD OF TIME. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT ALL REPRESENTATIONS, WARRANTIES, CONDITIONS, ENDORSEMENTS AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF TITLE OR NON-INFRINGEMENT AND ANY IMPLIED REPRESENTATIONS, WARRANTIES AND CONDITIONS OF FITNESS FOR A PURPOSE, MERCHANTABLE QUALITY, DURABILITY, PERFORMANCE OR NON-PERFORMANCE OF SOFTWARE, PERFORMANCE OF SERVICES AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE ARE HEREBY EXPRESSLY EXCLUDED. CGS SHALL HAVE NO LIABILITY TO YOU OF ANY KIND WITH RESPECT TO ANY SERVICE PROVIDED BY ANY THIRD PARTY THROUGH CGS OR IN CONJUNCTION WITH CGS'S SERVICES INCLUDING, WITHOUT LIMITATION, THE THIRD PARTY SERVICES. YOUR RECOURSE IN THE EVENT OF ANY SUCH CLAIM WITH RESPECT TO ANY SERVICE SHALL BE SOLELY AGAINST SUCH THIRD PARTY(IES) SUBJECT TO THEIR TERMS AND CONDITIONS.
10.1 YOU SPECIFICALLY HEREBY AGREE THAT CGS SHALL NOT BE RESPONSIBLE FOR UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, ASSETS, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, OR ANY TRANSACTIONS ENTERED INTO THROUGH THE CGS SERVICE. YOU SPECIFICALLY HEREBY AGREE THAT CGS IS NOT RESPONSIBLE OR LIABLE FOR ANY THREATENING, DEFAMATORY, OBSCENE, OFFENSIVE OR ILLEGAL CONTENT OR CONDUCT OF ANY OTHER PARTY OR ANY INFRINGEMENT OF ANOTHER'S RIGHTS, INCLUDING INTELLECTUAL PROPERTY AND PRIVACY RIGHTS. YOU SPECIFICALLY HEREBY AGREE THAT CGS IS NOT RESPONSIBLE FOR ANY ASSETS OR OTHER CONTENT SENT OR RECEIVED USING THE CGS SERVICE AND/OR BY ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION, VIRUSES. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET OUT IN THIS AGREEMENT SHALL APPLY: (A) WHETHER AN ACTION, CLAIM OR DEMAND ARISES FROM A BREACH OF WARRANTY OF CONDITION, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER KIND OF CIVIL, COMMON LAW OR STATUTORY LIABILITY CONNECTED WITH OR ARISING OUT THIS AGREEMENT; AND (B) TO CGS AND ITS AFFILIATED COMPANIES, THEIR SUPPLIERS (INCLUDING ANY THIRD PARTY SERVICE) AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS, ASSIGNS AND INDEPENDENT CONTRACTORS (COLLECTIVELY, THE "CGS PARTIES" AND INDIVIDUALLY, A "CGS PARTY").
10.2 The only type of damages that you may recover against any CGS Party in relation to the provision, use, performance or non-performance of the CGS Service or any portion thereof, regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise, shall be your direct damages, if any, and the aggregate liability of the CGS Parties shall not in any event exceed the amount paid by you or on your behalf to CGS for the CGS Service for the period such failure, delay or non-performance occurs. YOU AGREE THAT IN NO EVENT SHALL THE CGS PARTIES BE LIABLE TO YOU OR ANY PARTY CLAIMING THROUGH YOU FOR, AND YOU HEREBY WAIVE YOUR RIGHT TO CLAIM, ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING LOST PROFITS, BUSINESS OR REVENUES, LOSS OF THE USE OF THE CGS SERVICE, OR ANY ASSOCIATED PRODUCTS OR SERVICES, LOSS OF DATA, ASSETS, COST OF CAPITAL, COST OF SUBSTITUTE GOODS, FACILITIES, SERVICES OR REPLACEMENT SERVICES, DOWNTIME COSTS OR THE CLAIMS OF ANY THIRD PARTIES FOR SUCH DAMAGES) DIRECTLY OR INDIRECTLY RELATING TO OR ARISING OUT OF THIS AGREEMENT REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN. THE FOREGOING DISCLAIMER SHALL APPLY IN CIRCUMSTANCES INCLUDING, BUT NOT LIMITED TO, YOUR INABILITY TO USE THE CGS SERVICE OR ANY PART THEREOF EITHER SEPARATELY OR IN COMBINATION WITH ANY OTHER COMMUNICATIONS BY CGS OR THROUGH CGS BY A THIRD PARTY SERVICE AND TO UNAUTHORISED ACCESS TO YOUR ASSETS AND DATA TRANSMITTED VIA COMMUNICATION LINKS PROVIDED BY SUCH THIRD PARTY SERVICE AS PART OF THE SERVICE(S). SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. THEREFORE, THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
10.3 IN NO EVENT SHALL YOU BE ENTITLED TO SEEK OR OBTAIN EQUITABLE INCLUDING INJUNCTIVE RELIEF AGAINST CGS AND/OR THE CGS PARTIES WHICH WOULD HAVE THE EFFECT OF MODIFYING, SUSPENDING OR TERMINATING THE CGS SERVICE OR ANY PORTION THEREOF.
11.1 You hereby agree to defend, indemnify, and hold harmless CGS and the CGS Parties from and against any and all claims, damages, losses, or expenses (including without limitation lawyer fees and costs) incurred by CGS and/or the CGS Parties in connection with all claims, suits, judgments and causes of action: (i) for infringement of patents or other proprietary rights arising from your combining with or using any device, system or service in connection with the CGS Service or any portion thereof, (ii) for damages arising from your breach or alleged breach of any provision of this Agreement, (iii) for libel, slander, defamation or infringement of copyright or other proprietary right with respect to Assets or any other material transmitted or received by you using the CGS Service (iv) for invasion of privacy, appropriation of personality, infringement of rights of publicity; and (v) for any injury, death or property damage arising from your acts in connection with the presence, use or non-use of any portion of the CGS Service (other than such damage to persons or property (excluding Assets) that directly arises from the use of the CGS Service strictly in accordance with the terms of this Agreement and the CGS instructions for use of the CGS Service). No remedy herein conferred upon CGS is intended to be, nor shall it be construed to be, exclusive of any other remedy provided herein or as allowed by law or in equity, but all such remedies shall be cumulative. In the event of the termination of this Agreement pursuant to section 13, below, you shall pay to CGS all lawyer fees and costs, collection fees, and related expenses, expended or incurred by CGS in the enforcement of any right or privilege hereunder (including, but not limited to, telephone, freight, express and postal charges, expenses of paid investigators and reasonable compensation for time of CGS's representatives).
11.2 The indemnity set out in section 11.1, above, shall apply to CGS and the CGS Parties.
12.1 Neither you nor anyone acting on your behalf, including your employees, assigns, agents or representatives, acquire any intellectual property or other proprietary rights, including patents, designs, trademarks, copyright or trade-secrets, relating to the CGS Service, Assets, and any other CGS products and services, including without limitation, software and information, except as otherwise expressly specified in an appropriate license or other mutually agreed upon, written agreement that you may have with CGS. Any grants not expressly granted in this Agreement are hereby reserved. Use of the CGS Service is only licensed to you as expressly set out in this Agreement, and the CGS Website allowing you access to the CGS Service is protected by Australian, Canadian, U.S. and international copyright and patent laws and international treaty provisions. You may not print, copy, decompile, disassemble, reverse engineer, reproduce, distribute, modify or in any other manner duplicate any software or other materials provided to you in conjunction with the CGS Service, in whole or in part. For the purposes of this provision "copy or reproduce" shall not include copying that naturally results from the operation of such software or in the course of making backups of the computer or system on which such software is installed, in accordance with industry standard business practices. You do not have the right to obtain or use any source code for any software provided to you in conjunction with the CGS Service, and except to the extent that CGS is expressly precluded by law from prohibiting these activities, you may not reverse engineer or disassemble any products or accessories provided to you in conjunction with the CGS Service, or translate, reverse engineer, decompile or disassemble, or otherwise attempt to derive the source code of any software provided to you in conjunction with the CGS Service.
13.1 If the CGS Service is used in a way in which CGS, in its sole discretion, deems to violate this Agreement, CGS or its agents or representatives may take any responsible actions they deem appropriate. Such action may include, but is not limited to, temporary or permanent removal of content, filtering of Internet transmissions and the immediate suspension or termination of all or any portion of the CGS Service. CGS shall not be liable in any way for any such responsive actions. The above-described actions are not CGS's exclusive remedies and CGS may take any other legal, equitable or technical action it deems appropriate.
13.2 You hereby acknowledge and agree that in the event the CGS Service and/or any part thereof is down or not operational, in whole or in part, due to the actions of third parties, including Third Party Services, the provisions of sections 9.0 and 10.0, above, shall apply and in no event shall you be entitled to seek or obtain any damages whatsoever, injunctive or other equitable relief against CGS during the period of such down-time.
13.3 CGS reserves the right to investigate suspected violations of this Agreement and you hereby agree to cooperate with CGS in such investigations, if any. Additionally, you hereby authorize CGS to cooperate with (1) law enforcement authorities in the investigation of suspected criminal violations, (2) third parties in investigating acts in violation of this Agreement and (3) system administrators at Internet service providers, Third Party Service networks or computing facilities in order to enforce this Agreement. Such cooperation may include CGS providing the username, IP address, Personal Information or other identifying information about you in accordance with the Privacy Legislation. Upon termination of any account you may have with CGS, you authorize CGS to delete any Assets, files, programs, data and email messages, if any, associated with such account.
13.4 If you are in default of any obligation under this Agreement CGS may, in addition to all other rights and remedies provided by this Agreement or by law, suspend or terminate this Agreement by providing you with written notice of suspension or termination. "Events of Default" shall include, without limitation, failure to comply with or perform a term or condition contained in this Agreement including, without limitation, the obligations contained in Section 6. If CGS is prevented from providing any portion or all of any of the CGS Service by any law, regulation, requirement or ruling issued in any form whatsoever by judicial or other governmental body, or if a notice from a government agency or department indicates either CGS or any provider of Third Party Services is not permitted to provide any portion or all of the CGS Services and/or the Third Party Services, CGS may immediately cease providing the CGS Service without any liability whatsoever to you. Nothing in this Agreement shall be construed to require CGS to seek a waiver of any law, rule, regulation, or restriction, or seek judicial review or appeal of any court order. In addition, you understand, acknowledge and agree that CGS may suspend or terminate this Agreement without notice if you are in default of any obligation under this Agreement and/or if (1) you or any user of the CGS Service provided to you (or any component thereof) interfere with CGS 's customer service or business operations; (2) you use or allow the CGS Service to be used in a way that has a detrimental effect upon CGS, its customers or its product(s) and service(s); (3) you use any portion of the CGS Service, in any manner inconsistent with this Agreement and the instructions found in the applicable user documentation, if any, or to commit or attempt to commit a crime or facilitate the commission of any crime or other illegal or tortious act; (4) you contravene any other agreement that you may have with CGS, including without limitation, the terms of any click-wrap or shrink-wrap agreement that you have agreed to with respect to the CGS Service; (5) you violate any code of conduct or other guidelines by which you may be governed in conjunction with your use of the CGS Service; or (6) you sell or transfer, or attempt to sell or transfer the CGS Service or any part thereof without the prior written permission of CGS, or use or allow the use of the CGS Service other than for your own personal educational and study purposes; or (7) you fail to make timely payments to CGS in relation to the CGS Service or for any other products or services provided to you by CGS .
14.1 Except as otherwise provided in this Agreement, all notices or other communications hereunder shall be deemed to have been duly given when made in writing and delivered in person, by courier or deposited in the mail, postage prepaid, certified mail, return receipt requested, and addressed to you at the billing address supplied to CGS by you, and addressed to CG Spectrum Australia PTY LTD, Tenancy 1, Level 2, 6 Palmer Parade Cremorne 3121, Australia. Attention: Jeffrey Pepper; [email protected], or at such other address as a Party may provide by written notice to the other Party from time to time. In addition to the foregoing, CGS may, at its option, give you any notice under this Agreement by email.
15.1 The terms, conditions and warranties contained in this Agreement that by their sense and context are intended to survive the performance hereof by either or both Parties, including without limitation the provisions of sections 9, 10, 11, 12, 15, 17 and 18 of this Agreement, shall so survive the completion of performance, cancellation or termination of this Agreement.
16.1 Notwithstanding any other provision of this Agreement, neither Party shall be deemed in default of this Agreement for failure to fulfill its obligations when due to causes beyond its reasonable control. This provision shall not be construed as excusing non-performance of any obligation by either Party to make payment to the other Party under this Agreement.
17.1 This Agreement is to be construed in Australia under the laws of the State of Victoria and Australia. Each Party hereto irrevocably waives any objection on the grounds of venue, forum non-conveniens or any similar grounds and irrevocably consents to service of process by mail or in any other manner permitted by applicable law and, subject to the dispute procedures set out in this section, irrevocably consents and attorns to the jurisdiction of the courts located in the State of Victoria. The Parties expressly agree that neither the United Nations Convention on Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act shall apply to this Agreement.
18.1 Any disagreement or dispute arising out of or relating to this Agreement, or the breach or alleged breach thereof which the Parties are unable to resolve after good faith negotiations lasting no more than thirty (30) consecutive or non-consecutive days within any calendar year, shall be submitted first to the upper management level of the Parties. The Parties, through their upper management level representatives shall meet within thirty (30) days of the dispute being referred to them and if the Parties are unable to resolve such disagreement or dispute within thirty (30) days of meeting, such disagreement or dispute shall be settled by final and binding arbitration to be conducted in Melbourne, Victoria, Australia. Each of the Parties shall appoint one arbitrator, and the tw
o arbitrators shall jointly appoint a third arbitrator. Each Party shall bear one half of the costs associated with the arbitration proceedings. Judgment upon the award rendered by the three arbitrators may be entered in any Court having jurisdiction thereof. The Parties specifically agree that, in the event that there is a dispute under this Agreement and such dispute is to be resolved in a court of law, such dispute shall not be resolved by jury trial. Notwithstanding the foregoing, CGS has the right to institute legal or equitable proceedings in any court of competent jurisdiction for claims or disputes regarding: (i) amounts owed by you in connection with your purchase of the CGS Service; and (ii) your violation or threatened violation of sections 3, 5, 6, 7, 8, 12 or 13 of this Agreement.
19.1 Except as otherwise specifically stated in this Agreement, the provisions herein are for the benefit of the Parties and not for any other person or entity. No joint venture, partnership, employment, or agency relationship exists between you and CGS as a result of this Agreement.
19.2 Waiver by either Party of any default by the other Party shall not be deemed a continuing waiver of such default or a waiver of any other default. CGS's performance of this Agreement is subject to existing laws and legal process, and nothing contained in this Agreement is in derogation of CGS's right to comply with governmental, court and law enforcement requests or requirements relating to your use of the CGS Service.
19.3 CGS may assign this Agreement without notice to you. You shall not assign this Agreement without the prior written consent of CGS (such consent may be withheld or conditioned at CGS’s discretion).
19.4 CGS may perform all obligations to be performed under this Agreement directly or may have some or all obligations performed by its contractor or subcontractors.
19.5 If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement shall continue in effect.
19.6 Unless otherwise specified herein, this Agreement constitutes the entire agreement between you and CGS with respect to the CGS Service and any other CGS products or services and this Agreement supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and CGS with respect to the CGS Service.
19.7 A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. It is the express will of the parties that this Agreement and all related documents have been drawn up in English.
19.8 This Agreement will inure to the benefits of the respective Parties’ successors, heir and assigns.