1.2. By continuing to use the Beta Service, you acknowledge that you have read, understood and agree to be bound by these Terms. If you do not agree to these Terms, you must not use the Beta Service.
1.3. Capitalised terms, and the terms “we”, “us”, “our”, “you” and “your”, used in these Terms have the meaning given to them in your existing agreement with Tyro unless otherwise defined in these Terms.
1.4. These Terms are governed by the laws of New South Wales and you agree to submit to the non-exclusive jurisdiction of the courts of that State.
2. The Beta Service
2.1. The Beta Service is a beta release and may not meet the level of performance of a publicly available offering. The Beta Service may not operate as intended and may be substantially modified prior to final release. We reserve the right to modify, suspend or terminate the Beta Service, or your use of the Beta Service, at any time in our sole discretion, with or without notice to you.
2.2. To the maximum extent permitted by law and without excluding or restricting any statutory implied warranties:
2.2.1. the Beta Service is provided “as is,” “as available” and with all faults. Other than in respect of any statutory warranties that cannot be excluded or restricted, we disclaim all warranties, express and implied in respect of the Beta Service;
2.2.2. you agree to indemnify us and keep us indemnified against all Loss incurred or arising in connection with your use of the Beta Service, including Loss incurred or suffered by you, except for Loss due to fraud, negligence or wilful misconduct by us, our employees, agents or representatives; and
2.2.3. except in respect of fraud, fraudulent misrepresentation, negligence or wilful misconduct by us, our employees, agents or representatives, we will not be liable to you for any indirect, special, punitive, exemplary, Consequential Damages, or any other damages whatsoever, without regard to the form of action (including, but not limited to, contract, negligence, or other tortious actions), arising out of or in connection with your use of the Beta Service, even if we have been advised of the possibility of those damages.
You agree that:
3.1. all non-public materials and information made available by us to you in relation to the Beta Service (Beta Information) will be deemed as Tyro Confidential Information for the purposes of your existing agreement with Tyro; and
3.2. you will comply with all of your obligations under your existing agreement with Tyro concerning Tyro Confidential Information in relation to the Beta Information.