End User Licence Agreement

Last updated on 29 November 2022.

1. Background

We are Path of Trees Pty Ltd ACN 658 849 024 of 804a / 83 Mount St, North Sydney, NSW 2060 (Path of Trees, we, our, us and other similar terms). This is our End User Licence Agreement (EULA). We provide a range of applications designed to work with the Atlassian suite which we make available via the Atlassian Marketplace (Marketplace). We refer to those applications within this EULA as our Apps (Apps or Path of Trees Apps).

This EULA outlines the terms and conditions associated with your use of the Apps. Certain Apps have App specific terms which apply only to the use of that individual App. App specific terms are set out in clause 5.

It is your obligation to ensure that you have read, understood and agree to the most recent version of these terms available at End User Licence Agreement (Website) also accessible via the Marketplace.

2. End User Licence Agreement

2.1 Accepting this EULA

By creating an Account for, or downloading a Path of Trees App, you agree to comply with and be legally bound by the terms and conditions of this EULA. If you do not agree to these terms, you have no right to continue using the App.

You must not use the Apps if you are not able to form legally binding contracts or are under the age of 18. If you create an Account on behalf of your employer or any other entity, you represent and warrant you hold authority to enter into this EULA on behalf of that entity and that the entity will comply with the obligations contained herein.

2.2 About this EULA

Throughout the EULA we use some capitalised words and phrases, like the word EULA. These capitalised words and phrases are defined in clause 19.1. They aid to clarify the terms and conditions. Please feel free to contact us via the details set out in the App Listing if you have any questions.

3. Term

3.1 Subscription Period

This EULA will commence when you procure an App via the Marketplace and will apply to that App for the Subscription Period or until the date of termination of the Subscription in accordance with clause 17.

3.2 Automatic renewal

If the Subscription to that App is not terminated in accordance with clause 17, at least 1 Month prior to the expiry of the current Subscription Period, the Subscription to that App will automatically renew for a period equal to the current Subscription Period.

4. Licence

4.1 Licence

We grant you a non-transferrable, non-exclusive and revocable licence to access the specific App you procured via the Marketplace, for the Subscription Period and subject to the terms and conditions of this EULA.

The grant of the licence to access the App in this clause is subject to and conditional upon you purchasing, and maintaining a Subscription to that App. For the avoidance of doubt, procuring a Subscription to one App, applies only to that App and does not grant you a license to our entire suite of Apps.

4.2 Our right to suspend

We reserve the right to limit or suspend your licence to access the App if you fail to pay the Subscription Fee, or if in our reasonable opinion, you are in breach of any of your obligations or warranties in this EULA. Suspending your Subscription will not constitute a breach of this EULA by us, nor will it alter your obligation to pay the Subscription Fee.

5. App specific terms

5.1 Publish to Cloud for Confluence

The terms set out in this section 5.1, apply only to the use of the Publish to Cloud for Confluence App.

By subscribing to the Publish to Cloud for Confluence app you authorise us to access your User Data contained within Confluence for the purpose of providing you with the services supported by that app.

In order to make full use of the Publish to Cloud for Confluence app you may require an account to third-party Cloud Services (Cloud Services) which you wish to publish to, and provide us with the security credentials to those Cloud Services.

You acknowledge and agree that you are solely responsible for any publication you make from Confluence to the Cloud Services and that you must not publish any Personal Information using the Publish to Cloud for Confluence app without the consent of the person or people to whom the Personal Information relates. You warrant you have that consent prior to publishing to a Cloud Service.

6. Payment

Procurement of the Path of Tree Apps occures via the Atlassian Marketplace. Details of the pricing and Subscription Options are available under the pricing tab on the App Listing page of the Marketplace. You agree to make payment for your Subscription to each App you procure in accordance with the details in the App Listing.

7. Trial Services

We may make all or some of the Apps available on a demonstration or trial basis (Trial Service). The trial period commences upon subscribing to the App via the Marketplace and terminates in accordance with the Subscription Options, or if no such termination date is specified, 30 days from the date the App was procured (Trial Period). Access to the App will automatically continue at the expiration of the Trial Period unless either party gives notice that the Trial Services are to conclude.

Upon completion of the Trial Period, unless the Subscription is terminated, you will be charged for your use of the App in accordance with the pricing terms set out in the Subscription Options on the Marketplace.

To the maximum extent permittable at law, we provide the Trial Services “as is” and without warranty or indemnity, all other terms of this EULA otherwise apply.

8. Requirements for use

8.1 Access

You acknowledge and agree the Apps will only be accessible using the internet, by users with a valid Account and will not be available "locally" from your own servers or devices. You may also require an Atlassian account for each user and related software in order to make full use of the App. Please carefully review the App Listing on the Marketplace for further details about each App, its purpose and any dependencies.

8.2 Support

Current support for the Apps is provided in accordance with the support arrangements as set out on the App Listing on the Atlassian Marketplace, under the Support tab. Those support arrangements are subject to change, in our sole discretions.

8.3 Outages and system maintenance

If it is necessary to interrupt your use of the Apps, we will endeavour to provide you with reasonable notice (where possible) of when, and the anticipated duration for which, the Apps will be unavailable.

You acknowledge access to the Apps may be changed, interrupted or discontinued for many reasons, some of which are beyond our control and during routine maintenance there may be updates to the Apps which may change the interface and manner in which it functions.

Many of our Apps are built on or tightly integrated with Atlassian’s offerings. Any interruption or technical difficulties faced by Atlassian may result in our Apps being inaccessible. You acknowledge and agree that, to the maximum extent permitted at law, we are not liable for interruptions to the use of our Apps arising from the temporary inaccessibility or discontinuance of Atlassian’s offerings.

You agree that we are not liable for any loss, foreseeable or not, arising from any interruption to access, planned or not, and any such interruptions will not constitute a breach by us of these terms.

9. Your use of the Apps

9.1 Registering an Account

In order to use the Apps, you are required to provide us with Personal Information. You agree to provide any information reasonably requested by us for the purpose of setting up your Account. You warrant that all of the information you provide to us is accurate and complete in all respects, you will inform us by updating your Account details whenever any such information changes and you will not provide false or misleading information.

In many circumstances we are able to access your information from your Atlassian account. By providing us with your Atlassian account details, you authorise us to obtain from and access your Atlassian profile and any other data which you make available to us via the Apps.

We reserve the right to reject any new Account in our absolute discretion.

9.2 Account security

Maintaining the security of your Account is important to ensuring your Personal Information, and that data which we process on your behalf, remains safe. We work hard to keep the Apps secure and we ask you to contribute.

You agree not to request or allow another person to create an Account on your behalf, for your use, or for your benefit, except that an authorised employee or agent may create an Account on behalf of your business. You also agree not to disclose your Account security credentials to another person or permit them to access your Account. You are responsible for the activities undertaken using your Account which occur via the Apps, whether such activities are authorised by you or not.

9.3 Use of the Apps and Usage Restrictions

You undertake not to upload, store or access any data on or via the Apps if such access or storage would infringe a person’s Intellectual Property right, breach any Privacy Law or breach any other law or applicable code (including any common law, statute, delegated legislation, rule or ordinance of the Commonwealth, or a State or Territory, the United States of America or the jurisdiction in which you operate).

You acknowledge and agree that our Apps may come with Usage Restrictions. Where Usage Restrictions apply, they will be set out in the App specific terms in clause 5. We may alter or amend the Usage Restrictions in our sole discretion, including when Atlassian impose usage limits or make changes to their consumption fees.

9.4 Conduct which is expressly prohibited

You must not:

  1. in any way tamper with, hinder or modify the Apps;
  2. use the Apps directly or indirectly for any activity or transmit any information or material unlawfully, or which is obscene, indecent, uses offensive language, defames, abuses, harasses, stalks, threatens, menaces or offends any person;
  3. knowingly transmit any viruses or other disabling features to or via the Apps;
  4. use any screen capture, data mining, robot, crawler or similar data gathering, reproduction or data extraction tools to collect information from the Apps or our Website for any purpose including the sending of unsolicited emails, soliciting our or another user’s clients or duplicating the content of the Apps;
  5. intentionally disable or circumvent any protection or disabling mechanism of the Apps;
  6. use the Apps in any way which could be reasonably expected to interfere with or damage our systems, Atlassian’s systems, any other operator's systems, or another user's enjoyment of the Apps;
  7. use the Apps in connection with a breach of any law in Australia, the United States of America or the jurisdiction in which you operate; or
  8. attempt, facilitate or assist another person to do any of the above acts.

9.5 Acceptable use limits

You acknowledge and agree that our Apps are build on Atlassian’s infrastructure. Atlassian reserves the right to impose invocation and runtime limits. From time to time, we may publish information regarding acceptable use limits associated with the use of individual Apps. Links to such publications may be found on the App Listing.

Where the limits are reached we reserve the right to suspend or limit you use of the App in order to comply with Atlassian’s quota’s. You acknowledge and agree that our imposition of acceptable use limits on your use of the App, in order to comply with those imposed by Atlassian, is not a breach of these terms.

Further information about quotas and limits can be seen at Forge platform quotas and limits.

10. Atlassian Marketplace

This Agreement is between us and you only. We, and not Atlassian, are responsible for the Apps, and we are solely responsible for:

  1. their support and maintenance;
  2. the privacy, security and integrity of the data used with the Apps you procure form us via the Marketplace;
  3. the investigation, defence, settlement and discharge of any claim which relates to an infringement of third-party Intellectual Property rights arising from the use of the Apps; and
  4. any claim the Apps fail to conform to any applicable legal or regulatory requirement, including product liability claims and claims arising under consumer protection laws.

Atlassian’s liability to you is limited by the terms of your agreement with them.

Atlassian may monitor your use of the Apps and where we use Atlassian’s infrastructure they may have access to your information. You consent to, Atlassian’s legitimate access to, and storage of, your user data and other information, including Personal Information.

You represent and warrant that you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and you are not listed on any U.S. Government list of prohibited or restricted parties.

You must not (and must not allow any third-party to) remove or export from the United States or allow the export or re-export of any part of the Atlassian platform (and consequently our Apps) or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department's Denied Persons, Entity or Unverified Lists or the U.S. Treasury Department's list of Specially Designated Nationals and Consolidated Sanctions list (collectively, "Prohibited Persons"); (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. You represent and warrant that (i) you are not located in, under the control of or a national or resident of any such prohibited country and (ii) you are not a Prohibited Person nor owned, controlled by or acting on behalf of a Prohibited Person. You agree not to use the Atlassian platform or our Apps for any prohibited end use, including to support any nuclear, chemical or biological weapons proliferation, or missile technology, without the prior permission of the United States government.

11. Privacy

You agree and consent to us handling your Personal Information in accordance with our Privacy Policy. We may amend our Privacy Policy in our sole discretion. If we amend our Privacy Policy, we will post the new version on our Website at Privacy policy.

12. Confidentiality

12.1 Confidentiality

A party will not, without the prior written approval of the other party, disclose the other party's Confidential Information.

Notwithstanding any other provision of this clause 12, a party may disclose the terms of this EULA to its related companies, solicitors, auditors, insurers and accountants.

Each party will take all reasonable steps to ensure that its employees, agents, and any sub-contractors engaged for the purposes of the EULA do not make public or disclose the other party's Confidential Information.

A party will not be in breach of this clause 12 in circumstances where it is legally compelled to disclose the other party's Confidential Information.

12.2 Permitted Disclosures

We may disclose information, including, but not limited to, your Personal Information or a transmission made using the Apps, in order to comply with a court order, subpoena, summons, discovery order, warrant, statute, regulation, governmental request, to protect our legal rights, prevent harm to persons or where such disclosure is necessary to the proper operation of the Apps, including where we exchnage Personal Information and other security credentials with Atlassian (Permitted Disclosures).

You acknowledge and agree, we have no obligation to inform you if Permitted Disclosures are made.

13. Intellectual Property

We warrant we own or have a licence to use the Intellectual Property in the Apps.

If you provide us with content, including, without limitation, text, photos, images, audio, video, code and any other materials (User Content). Your User Content stays yours. This EULA does not transfer ownership of User Content to us.

When you provide User Content, you grant us a non-exclusive, worldwide, perpetual, royalty-free, sublicensable, transferable right and license to use, host, store, reproduce, modify, create derivative works of (such as those resulting from translations, adaptations or other changes we make so that User Content works better with the Apps. You waive any claims against us relating to any moral rights or similar rights worldwide that you may have in the User Content.

Certain Apps are designed to transmit, disclose or share your User Content with third parties. Where you instruct us to, you authorise us to transmit, disclose or Share that User Content in accordance with your instructions.

You represent that you own all rights to your User Content or otherwise have (and will continue to have) all rights and permissions to legally use, share, display, transfer and license your User Content to the extent that it is used within the Apps.

You must not do any of the following, assist anyone to do any of the following or permit any person over whom you have effective control to:

  1. create an adaptation or translation of all or part of the Apps in any way;
  2. use the Apps in a manner which may infringe any other persons Intellectual Property;
  3. incorporate all or part of the Apps in any other webpage, site, application or other digital or non-digital format; or
  4. except to the extent that reproduction occurs automatically through its ordinary use, directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, content, architecture, or algorithms contained in the Apps.

14. Warranties

WE AIM TO PROVIDE THE BEST POSSIBLE USER EXPERIENCE, HOWEVER, SUBJECT TO THE NON-EXCLUDABLE CONDITIONS, WE MAKE NO WARRANTIES OR GUARANTEES THAT THE APPS ARE FAULT FREE, REGARDING THE APPS’ FITNESS FOR ANY PARTICULAR PURPOSE WHICH WE HAVE NOT EXPRESSED, OR REGARDING YOUR ACCESS TO, OR THE RESULTS OF YOUR ACCESS TO, THE APPS INCLUDING THEIR CORRECTNESS, ACCURACY, TIMELINESS, COMPLETENESS, RELIABILITY OR OTHERWISE.

15. Limitation of Liability

15.1 Implied Conditions

WE EXPRESSLY EXCLUDE ALL CONDITIONS, WARRANTIES AND OTHER TERMS WHICH MIGHT OTHERWISE BE IMPLIED BY ANY LAW, REGULATION, STATUTE, COMMON LAW OR LAW OF EQUITY EXCEPT ANY NON-EXCLUDABLE CONDITION.

15.2 Limitation of Liability

SUBJECT TO THE NON-EXCLUDABLE CONDITIONS, WE EXCLUDE ALL OTHER LIABILITY FOR ANY COSTS, INCLUDING CONSEQUENTIAL LOSSES, SUFFERED OR INCURRED DIRECTLY OR INDIRECTLY BY YOU IN CONNECTION WITH THIS EULA, INCLUDING:

  1. THE APPS BEING INACCESSIBLE FOR ANY REASON;
  2. THE ACTS OR INACTION OF ATLASSIAN OR ANY THIRD PARTY INFRASTRUCTURE, INCLUDING THOSE WHICH IMPACT THE AVAILABILITY OF THE APPS;
  3. INCORRECT OR CORRUPT DATA, LOST DATA, OR ANY INPUTS OR OUTPUTS OF THE APPS;
  4. COMPUTER VIRUS, TROJAN AND OTHER MALWARE IN CONNECTION WITH THE APPS;
  5. SECURITY VULNERABILITIES IN THE APPS OR ANY BREACH OF SECURITY THAT RESULTS IN UNAUTHORISED ACCESS TO, OR CORRUPTION OF DATA;
  6. NEGLIGENCE ARISING FROM OUR ACTIVITIES OR THAT OF OUR SERVICE PROVIDERS, INCLUDING ATLASSIAN;
  7. ANY UNAUTHORISED ACTIVITY IN RELATION TO THE APPS;
  8. THE OCCURRENCE OF AN EVENT OF FORCE MAJEURE;
  9. YOUR BREACH OF THIS EULA; OR
  10. ANY ACT OR OMISSION BY YOU, YOUR PERSONNEL, YOUR ASSOCIATES OR ANY RELATED BODY CORPORATE UNDER OR IN RELATION TO THIS EULA.

15.3 Limits to liability associated with goods and services

WHERE A NON-EXCLUDABLE CONDITION IS DEEMED TO APPLY, TO THE FULLEST EXTENT POSSIBLE UNDER THE LAW, WE LIMIT OUR LIABILITY FOR ANY BREACH TO:

  1. IN THE CASE OF GOODS: THE RE-SUPPLY OF THE GOODS OR PAYMENT OF THE COST OF THE RE-SUPPLY OF THE GOODS, OR THE REPLACEMENT OR REPAIR OF THE GOODS OR PAYMENT OF THE COST OF REPLACEMENT OR REPAIR OF THE GOODS; AND
  2. IN THE CASE OF SERVICES: THE RESUPPLY OF THE SERVICES OR THE PAYMENT OF THE COST OF HAVING THE SERVICES RESUPPLIED.

15.4 Indemnity

You indemnify us against all costs suffered or incurred by us, however caused, arising wholly or partially, directly or indirectly, in connection with this EULA or your use of the Apps, including any costs arising from your breach of this EULA, your infringement of any third party Intellectual Property rights associated with this EULA, any harm to, claim or action by a third party (including to that third party’s personal property) which arise directly or indirectly from your use of the Apps and your breach of any law including, Privacy Law.

16. Dispute Resolution

A party claiming a dispute has arisen under this EULA (Dispute) must give written notice to the other party specifying the nature of the Dispute. The parties must submit themselves to the dispute resolution procedure set out in this clause 16 before commencing any legal proceedings.

If the parties cannot resolve the Dispute between themselves within 30 days, then either party may require the Dispute to be referred for mediation. The mediation must be undertaken in accordance with the Resolution Institute Mediation Rules, In Sydney, Australia, and, unless otherwise agreed between the parties, using a mediator nominated by the Resolution Institute. If the Dispute is not resolved within 30 days of the mediation commencing either party may commence proceedings in respect of the Dispute.

Each party must pay its own internal and legal costs in relation to complying with this clause 16. The mediator’s costs are to be shared equally.

The parties acknowledge and agree this clause 16 does not apply to the recovery of any debt or prevent a party from instituting proceedings for the purposes of seeking urgent injunctive or similar interim relief from a court.

17. Termination

17.1 Termination notice

You may terminate a Subscription by cancelling your Subscription via the Marketplace and uninstalling the App. Either option satisfies the requirements for termination to be provided in writing.

17.2 Termination for convenience

Either party may terminate any or all Subscriptions, by providing the other party notice in writing. Termination will take effect, at the end of the then current Subscription Period.

17.3 Termination for cause

Either party may terminate any or all Subscriptions, if the other party commits a material breach of this EULA and the breach is incapable of being remedied or if the breach is capable of being remedied, the party in breach has failed to remedy the breach within 14 days after the receipt of notice to remedy.

17.4 Termination by Path of Trees

Notwithstanding anything to the contrary, we may terminate a Subscription if:

  1. it becomes unlawful to provide that App;
  2. Atlassian terminates their agreement with us; or
  3. Atlassian takes action to remove, de-list or otherwise cause us to cease making the App available including by making changes to the Atlassian products which make the Apps incompatible or otherwise malfunction.

17.5 Actions upon termination

Upon terminating a Subscription, you must immediately stop using the App associated with that Subscription and we reserve the right to permanently erase any data associated with your use of that App.

18. General

Assignment - We may assign, encumber, declare a trust over or otherwise create an interest in our rights in this EULA without your consent.

Entire agreement - This EULA together with the associated App Listing on the Marketplace contains the entire agreement between the parties about its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter has no further effect.

Governing law - The laws of New South Wales, Australia, govern this EULA. The parties submit to the non-exclusive jurisdiction of courts exercising jurisdiction there.

Notices - The parties agree all notices, disclosures and other communications that are provided in accordance with this clause, satisfy any legal requirement that such communications be in writing. Any communication under or in connection with this EULA:

  1. which we send to you, will be sent to the email address provided to us in your Account and by accepting these terms you give your consent to receive communications from us by email; and
  2. which you send, must be either delivered or posted by prepaid post to the address set out at clause 1 or sent by email to our email address set out on the App Listing.

Relationship - Nothing in this EULA is intended to create or be construed as creating a relationship of agency, joint venture or partnership between any of the parties.

Severability - Any provision of this document which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make this document enforceable, unless this would materially change its intended effect.

Variations to this EULA - We may vary this agreement prior to the commencement of any Subscription Period. If you do not accept the terms of the variation, you may terminate your subscription in accordance with clause 17.1.

19. Definitions and interpretation

19.1 Definitions

Unless the terms and conditions of the EULA state otherwise, the following expressions used in this EULA have the following meanings:

Account or the Apps Account means the username and access credentials used when you access the Apps, notwithstanding that Account may also be used as your Atlassian account.

App Listing means the listing set out on the Atlassian Marketplace.

Atlassian means Atlassian Pty Ltd ABN 53 102 443 916 of Level 6, 341 George St Sydney NSW 2000 and its subsidiaries.

Cancellation Notice means a notice sent by either party, in accordance with clause 17, requesting the termination of a Subscription.

Confidential Information means information that is by its nature confidential, including but not limited to information relating to either party’s personnel, policies, practices, clientele, business strategies, Intellectual Property rights, the system operations associated with the Apps and security credentials. But does not include information already rightfully known to the receiving party at the time of disclosure by the other party or in the public domain other than as a result of a disclosure in breach of its obligations of confidentiality under this EULA.

EULA means these terms and conditions and any terms expressed in the App Listing on the Atlassian Marketplace.

Event of Force Majeure means an act of war (whether declared or not) or terrorism, the mobilisation of armed forces, civil commotion or riot, natural disaster, health epidemic, industrial action or labour disturbance, currency restriction, embargo, action or inaction by a government, a failure of a supplier, public utility or common carrier or computer disruption due to the effects of a computer virus, trojan, malware, a ransomware attack or other malicious code.

Intellectual Property means all present and future rights conferred by statute, common law or equity (and all moral rights) in or in relation to business names, domain names, circuit layouts, computer code, confidential information, copyright, designs, formulas, inventions, knowhow, patents, plant varieties, recipes, trade marks, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic field, the benefit of any application to register such a right and the benefit of any renewal or extension of such a right.

Marketplace means the Atlassian Marketplace.

Non-excludable Condition means any guarantee, condition or warranty (such as the consumer guarantees implied by the Competition and Consumer Act 2010 (Cth)), which cannot by law be excluded.

Payment Terms mean the requirement to make payment immediately on commencement of this EULA and each subsequent Subscription Period, in accordance with the Subscription Options selected.

Personal Information means information or an opinion about an identifiable individual (not a company), whether or not that information or opinion is true or in a material form.

Privacy Law means both the privacy laws in the jurisdiction in which you operate and the Privacy Act 1988 (Cth) incorporating the Australian Privacy Principles.

Privacy Policy means the privacy policy available on our Website as amended by us from time to time.

Subscription means a licence to use the App subscribed for, to which the terms of this EULA apply.

Subscription Fee means the monthly price for the the Apps’ Subscription as set out on the App Listing.

Subscription Options means the description of the App, pricing and other Subscription options made available via the Marketplace.

Subscription Period means the period of time selected when you procure the App through the Marketplace.

You or your means the person or entity using the Apps.

Us, we or our means Path of Trees Pty Ltd ACN 658 849 024.

Usage Restrictions means any limits on the use of the Apps, whether imposed by us or Atlassian, as set out in clause 5 or on the App Listing.

Website means the website located at https://pathoftrees.com and any of its subdomains.

19.2 Interpretation

Unless the terms and conditions of the EULA explicitly state otherwise, the EULA will be interpreted as follows:

  1. a reference to a party includes that party's permitted assigns, administrators, successors, executors, legal representatives and any novated party;
  2. unless used for the usual grammatical purpose, inverted commas around a term indicate industry jargon that will be interpreted according to how that term would be understood by an individual with expertise in the relevant industry;
  3. "including", "includes" or any derivation of those words does not limit the matter in question to the things specifically mentioned in the applicable context;
  4. where a term is defined, other grammatical forms of that term will be taken to have the same meaning;
  5. headings are for convenience and will not affect interpretation;
  6. words in the singular will be taken to include the plural and also the opposite;
  7. when any kind of legislative instrument is referenced, the reference will be taken to be that instrument as updated or substituted for by the legislative body;
  8. a reference to a party's conduct includes omissions as well as acts; and
  9. if a party is described as having discretion in a matter, the discretion in that matter will be interpreted as sole and absolute.