This Agreement is entered into between us and you, together the Parties and each a Party.
Background
We operate a business providing access to the Software. You are a company that desires to gain access to the Software. You have contracted us on the terms and conditions of this Agreement to supply the Software.
1. Acceptance and Term
1.1 You accept this Agreement by the earlier of:
(a) signing and returning this Agreement to us, including by email or any electronic executions platform acceptable to us;
(b) confirming by email that you accept this Agreement;
(c) confirming that you accept this Agreement via the platforms or applications through which we provide this Agreement to you, including our website;
(d) instructing us (whether orally or in writing) to proceed with the supply of the Software; and
(e) making part or full payment of the Price.
1.2 This Agreement will operate for the Term.
2. Software
2.1 In consideration of your payment of the Price, we will provide the Software in accordance with this Agreement, whether ourselves or through our Personnel.
2.2 We will provide access to the Software via an electronic link.
2.3 We will not be responsible for Software unless expressly set out in the inclusions in the Schedule.
2.4 You agree to accept and enter into any end user licence agreement required by the operators of the Software, including any Terms of Use as stipulated in the Schedule.
2.5 If this Agreement expresses a time within which the Software is to be supplied, we will use reasonable endeavours to provide the Software by such time, but you agree that such time is an estimate only, and creates no obligation on us to supply the Software by that time.
2.6 You acknowledge and agree that no services are provided other than the supply of the Software, including but not limited to implementation and support services.
2.7 You are solely responsible for the management and administration of any user accounts on the Software.
2.8 When using the Software, you must not do or attempt to do anything that is unlawful or inappropriate.
2.9 You acknowledge and agree that the Software is reliant on third party providers that are not provided or controlled by us (Third Party Services). To the maximum extent permitted by law, we shall have no Liability for any Third Party Services, or any unavailability of the Software due to a failure of the Third Party Services.
2.10 You acknowledge and agree that data loss is an unavoidable risk when using any software. To the extent you input any data into the Software, you acknowledge and agree that you are responsible for managing the risk of data loss, and you must take reasonable steps to reduce the risk of any data
loss.
2.11 To the maximum extent permitted by law, we shall have no Liability to you for any loss or corruption of data, or any scheduled or emergency maintenance that causes the Software to be unavailable.
2.12 You (and each of your Personnel) are responsible for keeping login details, user names and passwords confidential and you will be liable for all activity via your login. You agree to
immediately notify us of any unauthorised use of your login.
2.13 We may revoke your access to the Software at any time by giving 30 days’ written notice to you. Should we suspect that you are in breach of this Agreement, we may suspend your access to the Software while we investigate the suspected breach. Should we determine that you are in breach of this Agreement, your access to the Software will be terminated immediately.
3. Commencement
We will commence the supply of the Software within a reasonable time after the later of the Commencement Date or the receipt of payment of the Price.
4. Variations
4.1 You may request a variation or change to the Software, including the timing for the supply of the Software (Variation), by providing written notice (including by email) to us, with details of the Variation (Variation Request). We will not be obliged to comply with a Variation Request unless
we accept the Variation Request in writing. The Parties agree to comply with this Agreement as varied by the any Variation Request accepted in writing.
4.2 If we consider that any instruction or direction from you constitutes a Variation, then we will not be obliged to comply with such instruction or direction unless a Variation Request has been issued and accepted by us in accordance with clause 4.1.
5. Payment
5.1 In consideration for us providing the Software, you agree to pay us:
(a) any balance of the Price; and
(b) any other amount payable to us under this Agreement, in accordance with the Payment Terms.
5.2 If any payment has not been made in accordance with the Payment Terms, we may (at our absolute discretion):
(a) after a period of 5 Business Days, cease providing the Software, and recover, as a debt due and
immediately payable from you, our additional costs of doing so, (including legal fees, debt collector fees and mercantile agent fees); and/or
(b) charge interest at a rate equal to the Reserve Bank of Australia’s cash rate, from time to time, plus 2% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the due date for payment in accordance with the Payment Terms.
5.3 You will not be entitled to any part of the Software until the Price has been paid.
5.4 You agree that we may set-off or deduct from any monies payable to you under this Agreement, any amounts which are payable by you to us (whether under this Agreement or otherwise).
6. Warranties and Representations
6.1 Each Party represents, warrants and agrees that:
(a) it has full legal capacity, right, authority and power to enter into this Agreement, to perform its obligations under this Agreement, and to carry on its business;
(b) that this Agreement constitutes a legal, valid and binding agreement, enforceable in accordance with its terms;
(c) if applicable, it holds a valid ABN which has been advised to the other Party; and
(d) if applicable, it is registered for GST purposes.
6.2 You represent, warrant and agree:
(a) to comply with this Agreement and all applicable Laws;
(b) that all information and documentation that you provide to us in connection with this Agreement is true, correct and complete;
(c) to comply with our reasonable requests or requirements;
(d) the Authorised Representative stated in the Schedule has the necessary power and authority to act on your behalf, and that you will advise us in writing if you wish to update the individual acting as Authorised Representative;
(e) that you (and to the extent applicable, your Personnel) will provide us with all documentation,
information, instructions, cooperation and access reasonably necessary to enable us to provide the
Software;
(f) that you have not relied on any representations or warranties made by us in relation to the Software
(including as to whether the Software is or will be fit or suitable for any particular purposes), unless
expressly stipulated in this Agreement;
(g) that no Insolvency Event has occurred in respect of you and that you will immediately notify us if you are (or you are likely to be) the subject of an Insolvency Event;
(h) that the Software is provided to you solely for your benefit and you will not (or you will not attempt to) disclose, or provide access to, the Software to third parties without our prior written consent;
(i) that any information, advice, material, work and Software provided by us under this Agreement does not constitute legal, financial, merger, due diligence or risk management advice; and
(j) that you will be responsible for the use of any part of the Software, and you must ensure that no person uses any part of the Software:
(1) to break any Law or infringe any person’s rights (including Intellectual Property Rights);
(2) to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted; or
(3) in any way that damages, interferes with or interrupts the supply of the Software.
7. Intellectual Property
7.1 As between the Parties:
(a) we own all Intellectual Property Rights in Our Materials;
(b) we have been licensed the necessary rights in the Software to give effect to this Agreement;
(c) you own all Intellectual Property Rights in Your Materials; and
(d) nothing in this Agreement constitutes a transfer or assignment of any Intellectual Property Rights in Our Materials or Your Materials.
7.2 As between the Parties, ownership of all Intellectual Property Rights in any New Materials or Improvements will at all times vest, or remain vested, in us upon creation. To the extent that ownership of such Intellectual Property Rights in any New Materials and/or Improvements do not automatically vest in us, you agree to do all things necessary or desirable to assure our title in such rights.
7.3 We grant you a non-exclusive, revocable, worldwide, non-sublicensable and non-transferable right and licence, to use Our Materials that we provide to you, the New Materials and Improvements, solely for the purposes for which they were developed and for your use and enjoyment of the Software, as contemplated by this Agreement.
7.4 You grant us a non-exclusive, revocable, worldwide, non-sublicensable and non-transferable right and licence, to use Your Materials that you provide to us solely for the purposes for which they were developed and solely for the performance of our obligations under this Agreement.
7.5 If you or any of your Personnel have any Moral Rights in any material provided, used or prepared in connection with this Agreement, you agree to (and agree to ensure that your Personnel) consent to our use or infringement of those Moral Rights.
7.6 This clause 7 will survive termination or expiry of this Agreement.
8. Confidential Information
8.1 Each Receiving Party agrees:
(a) not to disclose the Confidential Information of the Disclosing Party to any third party;
(b) to use all reasonable endeavours to protect the Confidential Information of the Disclosing Party from any unauthorised disclosure; and
(c) to only use the Confidential Information of the Disclosing Party for the purposes for which it was
disclosed or provided by the Disclosing Party, and not for any other purpose.
8.2 The obligations in clause 8.1 do not apply to Confidential Information that:
(a) is required to be disclosed in order for the Parties to comply with their obligations under this Agreement;
(b) is authorised to be disclosed by the Disclosing Party;
(c) is in the public domain and/or is no longer confidential, except as a result of a breach of this Agreement; or
(d) must be disclosed by Law or by a regulatory authority, including under subpoena.
8.3 Each Party agrees that monetary damages may not be an adequate remedy for a breach of this clause 8. A Party is entitled to seek an injunction, or any other remedy available at law or in equity, at its discretion, to protect itself from a breach (or continuing breach) of this clause 8.
8.4 This clause 8 will survive the termination of this Agreement.
9. Australian Consumer Law
9.1 Certain legislation, including the Australian Consumer Law, and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the supply of the Software by us to you which cannot be excluded, restricted or modified (Consumer Law Rights).
9.2 Our Software comes with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the Software, you are entitled:
(a) to cancel this Agreement with us; and
(b) to a refund for the unused portion, or to compensation for its reduced value.
9.3 You are also entitled to be compensated for any other reasonably foreseeable loss or damage. If the failure does not amount to a major failure, you are entitled to have problems with the Software rectified in a reasonable time and, if this is not done, to cancel your contract and obtain a refund for the unused portion of the contract.
9.4 If the ACL applies to you as a consumer, nothing in this Agreement excludes your Consumer Law Rights as a consumer under the ACL. You agree that our Liability for the Software provided to an entity defined as a consumer under the ACL is governed solely by the ACL and this Agreement.
9.5 Subject to your Consumer Law Rights, we exclude all warranties, and all material, work and Software is provided to you without warranties of any kind, either express or implied, whether in statute, at Law or on any other basis, except where expressly set out in this Agreement.
9.6 This clause 9 will survive the termination or expiry of this Agreement.
10. Limitations on liability
10.1 Despite anything to the contrary, to the maximum extent permitted by law:
(a) neither Party will be liable for Consequential Loss;
(b) a Party’s liability for any Liability under this Agreement will be reduced proportionately to the
extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel), including any failure by that other Party to mitigate its loss; and
(c) our aggregate liability for any Liability arising from or in connection with this Agreement will be limited to us resupplying the Software to you or, in our sole discretion, to us repaying you the amount of the Price paid by you to us in respect of the supply of the relevant Software to which the Liability relates.
10.2 This clause 10 will survive the termination or expiry of this Agreement.
11. Termination
11.1 This Agreement will terminate immediately upon written notice by a Party (Non-Defaulting Party) if:
(a) the other Party (Defaulting Party) breaches a material term of this Agreement and that breach has not been remedied within 10 Business Days of the Defaulting Party being notified of the breach by the Non-Defaulting Party; or
(b) the Defaulting Party is unable to pay its debts as they fall due.
11.2 We may terminate this Agreement immediately upon written notice if a third party agreement or licence upon which we rely to supply the Software is terminated or expires.
11.3 Upon expiry or termination of this Agreement:
(a) we will immediately cease providing the Software;
(b) without limiting your Consumer Law Rights, you agree that any payments made by you to us are not refundable to you;
(c) you are to pay for all Software provided prior to termination, including Software which has been
provided and have not yet been invoiced to you, and all other amounts due and payable under this
Agreement;
(d) by us pursuant to clause 11.1, you also agree to pay us our additional costs, reasonably incurred, and which arise directly from such termination (including legal fees, debt collector fees and mercantile agent fees); and
(e) you agree to promptly return (where possible), or delete or destroy (where not possible to return), any information, documentation or material owned by us that is in your possession or control, subject to any rights you may have to any Intellectual Property in accordance with clause 7.
11.4 We will retain your documents (including copies) as required by law or regulatory requirements. Your express or implied agreement to this Agreement constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on expiry or termination of this
Agreement.
11.5 Termination of this Agreement will not affect any rights or liabilities that a Party has accrued under it.
11.6 This clause 11 will survive the termination or expiry of this Agreement.
12. GST
12.1 If GST is payable on any supply made under this Agreement, the recipient of the supply must pay an amount equal to the GST payable on the supply. That amount must be paid at the same time that the consideration is to be provided under this Agreement and must be paid in addition to the consideration expressed elsewhere in this Agreement, unless it is expressed to be inclusive of GST. The recipient is not required to pay any GST until the supplier issues a tax invoice for the supply.
12.2 If an adjustment event arises in respect of any supply made under this Agreement, a corresponding adjustment must be made between the supplier and the recipient in respect of any amount paid by the recipient under this clause, an adjustment note issued if required, and any payments to give effect to the adjustment must be made.
12.3 If the recipient is required under this Agreement to pay for or reimburse an expense or outgoing of the supplier, or is required to make a payment under an indemnity in respect of an expense or outgoing of the supplier, the amount to be paid by the recipient is to be reduced by the amount of any input tax credit in respect of that expense or outgoing that the supplier is entitled to.
12.4 The terms “adjustment event”, “consideration”, “GST”, “input tax credit”, “recipient”, “supplier”, “supply”, “taxable supply” and “tax invoice” each has the meaning which it is given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
13. General
13.1 Publicity: You agree that we may advertise or publicise the broad nature of our supply of the Software to you, including on our website or in our promotional material.
13.2 Privacy: Each Party agrees to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines.
13.3 Email: You agree that we are able to send electronic mail to you and receive electronic mail from you. To the maximum extent permitted by law, you release us from any Liability you may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to your system or any files by a transfer.
13.4 Amendment: This Agreement may only be amended by written instrument executed by the Parties.
13.5 Assignment: Subject to clause 13.6, a Party must not assign or deal with the whole or any part of its rights or obligations under this Agreement without the prior written consent of the other Party (such consent is not to be unreasonably withheld).
13.6 Assignment of Debt: You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with this Agreement, to a debt collector, debt collection agency, or other third party.
13.7 Counterparts: This Agreement may be executed in any number of counterparts that together will form one instrument.
13.8 Online execution: This Agreement may be executed by means of such third party online document execution service as we nominate subject to such execution being in accordance with the applicable terms and conditions of that document execution service.
13.9 Disputes: A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, this Agreement (including any question regarding its existence, validity or termination) (Dispute) without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute. If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either Party may ask the Law Institute of Victoria to appoint a mediator. The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.
13.10 Entire agreement: Subject to your Consumer Law Rights, this Agreement contains the entire understanding between the Parties and the Parties agree that no representation or statement has been made to, or relied upon by, either of the Parties, except as expressly stipulated in this Agreement, and this Agreement supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.
13.11 Further assurance: You agree to promptly do all things and execute all further instruments necessary to give full force and effect to this Agreement and your obligations under it.
13.12 Force Majeure: Neither Party will be liable for any delay or failure to perform their respective obligations under this Agreement if such delay or failure is caused or contributed to by a Force Majeure Event. This clause will not apply to a Party’s obligation to pay any amount that is due and payable to the other Party under this Agreement.
13.13 Governing law: This Agreement is governed by the laws of Victoria. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Victoria and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
13.14 Notices: Any notice given under this Agreement must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
13.15 Relationship of Parties: This Agreement is not intended to create a partnership, joint venture, employment or agency relationship between the Parties.
13.16 Severance: If a provision of this Agreement is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from this Agreement without affecting the validity or enforceability of the remainder of that provision or the other provisions in this Agreement.
14. Definitions
In this Agreement, unless the context otherwise requires, capitalised terms have the meanings given to them in the Schedule, and:
ACL or Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time.
Agreement means these terms and conditions and any documents attached to, or referred to in, each of them.
Authorised Representative means the individual listed in the Schedule who has the necessary power and authority to act on your behalf under this Agreement.
Business Day means a day on which banks are open for general banking business in Victoria, excluding Saturdays, Sundays and public holidays.
Confidential Information includes information which:
(a) is disclosed to the Receiving Party in connection with this Agreement at any time;
(b) is prepared or produced under or in connection with this Agreement at any time;
(c) relates to the Disclosing Party’s business, assets or affairs; or
(d) relates to the subject matter of, the terms of and/or any transactions contemplated by this Agreement, whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever the Receiving Party receives that information.
Consequential Loss includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise. The Parties acknowledge and agree that your obligation to pay us the Price under this Agreement will not constitute “Consequential Loss” for the purposes of this definition.
Consumer Law Rights has the meaning given in clause 9.1.
Disclosing Party means the party disclosing Confidential Information to the Receiving Party.
End Date means the last date of access to the relevant Software as specified in the Pricing Schedule.
Force Majeure Event means any event or circumstance which is beyond a Party’s reasonable control including but not limited to, acts of God including fire, hurricane, typhoon, earthquake, landslide, tsunami, mudslide or other catastrophic natural disaster, civil riot, civil rebellion, revolution, terrorism, insurrection, militarily usurped power, act of sabotage, act of a public enemy, war (whether declared or not) or other like hostilities, ionising radiation, contamination by radioactivity, nuclear, chemical or biological contamination, any widespread illness, quarantine or government sanctioned ordinance or shutdown, pandemic (including COVID-19 and any variations or mutations to this disease or illness) or epidemic.
Improvements means any development, modification, adaptation or improvement of Our Materials or any New Materials made by or on behalf of either Party (or any of their respective Personnel), or in respect of which Intellectual Property Rights are acquired by, either Party during the Term.
Insolvency Event means any of the following events or any analogous event:
(a) a Party disposes of the whole or any part of the Party’s assets, operations or business other than in the ordinary course of business;
(b) a Party ceases, or threatens to cease, carrying on business;
(c) a Party is unable to pay its debts as the debts fall due;
(d) any step is taken by a mortgagee to take possession or dispose of the whole or any part of the Party’s assets, operations or business;
(e) any step is taken for a party to enter into any arrangement or compromise with, or assignment for the benefit of, a Party’s creditors or any class of a Party’s creditors; or
(f) any step is taken to appoint an administrator, receiver, receiver and manager, trustee, provisional liquidator or liquidator of the whole or any part of a Party’s assets, operations or business.
Intellectual Property means any copyright, registered or unregistered designs, patents or trade marks, domain names, know-how, inventions, processes, trade secrets, circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.
Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property.
Intellectual Property Breach means any breach by you (or any of your Personnel) of any of our Intellectual Property Rights (or any breaches of third-party rights, including any Intellectual Property Rights of third parties), including using or exploiting our Intellectual Property for purposes other than as expressly stated in this Agreement (including, without limitation, using our Intellectual Property for commercial purposes or on-selling our Intellectual Property to third parties).
Laws means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any government or similar authority with the power to bind or impose obligations on the relevant Party in connection with this Agreement or the supply of the Software.
Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to this Agreement or otherwise.
Moral Rights has the meaning given in the Copyright Act 1968 (Cth).
New Materials means all Intellectual Property developed, adapted, modified or created by or on behalf of us or you or any of your or our respective Personnel in connection with this Agreement or the supply of the Software, whether before or after the date of this Agreement, but excludes Our Materials and Your Materials.
Our Materials means all work, models, processes, technologies, strategies, materials, information, and documentation that we may provide to you under this Agreement, and which may contain material which is owned by or licensed to us, and is protected by Australian and international laws.
Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents, but in respect of you, does not include us.
Price means the price set out in the Schedule.
Receiving Party means the party receiving Confidential Information from the Disclosing Party.
Schedule means the schedule to this Agreement.
Software means the Software set out in the Schedule, as adjusted in accordance with this Agreement.
Your Materials means all work, models, processes, technologies, strategies, materials, information, documentation (including Intellectual Property), owned or licensed by you or your Personnel before the Commencement Date and/or developed by or on behalf of you or your Personnel independently of this Agreement.
15. Interpretation
In this Agreement, unless the context otherwise requires:
(a) a reference to this Agreement or any other document includes the document, all schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time;
(b) a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time;
(c) a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity and vice versa;
(d) no clause will be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it;
(e) a reference to a party (including a Party) to a document includes that party’s executors, administrators, successors, permitted assigns and persons substituted by novation from time to time;
(f) a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally;
(g) words like including and for example are not words of limitation; and
(h) a reference to time is to local time in Victoria.