This Agreement is entered into between us and you, together the Parties and each a Party.
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.
2.1 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 or via the platforms or applications which we provide this Agreement to you.
2.3 We will not be responsible for Software unless expressly set out in the inclusions in the Schedule.
2.4 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.
2.5 You are solely responsible for the management and administration of any user accounts on the Software.
2.6 When using the Software, you must not do or attempt to do anything that is unlawful or inappropriate.
2.7 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.
2.8 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
2.9 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.
3. Intellectual Property
3.1 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.
3.2 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.
3.3 This clause 7 will survive termination or expiry of this Agreement.
4. Australian Consumer Law
4.1 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).
4.2 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.
4.3 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.
4.4 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.
4.5 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.
4.6 This clause 9 will survive the termination or expiry of this Agreement.
5. Limitations on liability
5.1 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.