MASTER SUBSCRIPTION AGREEMENT
RECITALS
The Supplier is a technology provider.
The Supplier and the Customer agree to enter into the Agreement for the licence and provision of the Supplier's products and services.
DEFINITIONS
ACICA Arbitration Rules means the rules governing arbitration published by the Australian Centre for International Commercial Arbitration as updated from time to time.
Affiliate of a party means an entity that controls, is controlled by, or is under common control with such party and where "control" for the purposes of this definition, means direct or indirect ownership or control or more than 50% of the voting interest of the subject entity.
Agreement means the agreement between the parties relating to the Supplies, comprising the Orders and this Master Subscription Agreement and any other Supplier document or policy referred to, or incorporated by reference in, any of these documents from time to time.
App means the Supplier's mobile device and desktop software application, in its downloadable form, that connects to and operates with the Platform and that the Supplier makes available for download from the Apple App Store, Google Play or any other platform.
Australian Consumer Law means Schedule 2 to the Competition and Consumer Act 2010 (Cth) and the corresponding provisions of the fair trading legislation.
Beta Services means the Services that may be made available to the Customer to try at its option at no additional charge that are clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.
Business Day means a day which is not a Saturday, Sunday or public holiday in Sydney, New South Wales, Australia.
Confidential Information means information which, by its nature, is confidential, including all information regarding the past, current and future business interests, methodology or affairs of either party and includes the following however they are stored or recorded: (a) business plans, trade secrets, research, development and survey information; (b) contracts or arrangements, whether verbal or written; (c) tender, contractor and employee information; (d) design and engineering information, programs, systems, techniques, source codes, maps and processes; (e) financial and pricing information; (f) all Intellectual Property Rights; and (g) any other information, materials and documents designated as confidential by a party from time to time, or which, by their nature, is understood to be confidential. Confidential Information of the Supplier includes the Supplies, Supplier Con tent, Documentation, and the terms of the Agreement (including pricing). Confidential Information of the Customer includes the Customer Data.
Customer means the party that is shown as the Customer in Order 1.
CPI Change means the difference between the latest published Consumer Price Index All Groups Index number for the weighted average of 8 capital cities published by the Australian Bureau of Statistics or any successor index, and the equivalent number published 12 months earlier, expressed as a percentage of the earlier index number.
Commencement Date means the commencement date of the Initial Service Term, as set out in the Order 1.
Customer Data means: (a) all data, information and content, whether in the form of documents or otherwise, submitted by the Customer, its Affiliates or Users or otherwise provided by the Customer, its Affiliates or Users to the Supplier in connection with the Agreement; and (b) any derivative works of the items in paragraph (a).
Customer Material means: (a) any code, software, documentation or other material provided by the Customer to the Supplier under the Agreement (other than Customer Data); and (b) any derivative work of the items in paragraph (a).
Deliverables means any configuration, code, software, documentation or other material to be provided by the Supplier under any Professional Services that is otherwise not part of the Services..
Device means any mobile device, tablet, camera, computer, server, or other device on or with which the Customer or its Affiliates or any of its Users install any part of the Services or access the Services.
Documentation means the Supplier’s standard documentation describing the Services and user manuals, training materials, operating instructions, and support materials relating to the Services provided by the Supplier under the Agreement (if any), as amended by the Supplier from time to time.
Equipment means the Bodyguard equipment and any other goods (including, where relevant, poles, server box and camera), which to the Customer purchases or leases to enable it to access the Services.
Excluded Incident means the exclusions from the Support Services in this Agreement, including in section 5.5 of the Support Terms (or such successor or replacement section).
Expiry Date means the expiry date of the Initial Service Term, as set out in the Order 1;
Fees means the fees and expenses payable by the Customer to the Supplier set out in an Order or otherwise provided under the Agreement.
Further Service Term means consecutive periods of 1 year after the Initial Service Term, by which the Agreement automatically extends, subject to clause 4.2(d) or any other agreed extension to the term of the Agreement.
Force Majeure Event has the meaning given in clause 22.1.
GST: (a) has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (to the imposition or administration of a goods and services tax in Australia and any regulation made under that Act); and (b) means any other applicable goods or services tax, value added tax, sales tax, transaction tax or similar tax.
Harmful Code means any computer program, trojan, virus or other code which is not intended to serve a legitimate purpose and which is harmful, destructive, or disabling or which assists in or enables theft, alteration, denial of service, unauthorised access to or disclosure, destruction or corruption of information, data or software.
Initial Service Term means the term of the Customer's subscription to the Services as set out in Order 1, subject to earlier termination in accordance with the terms of the Agreement.
Initial Storage Period means the initial storage period set out in the Order.
Insolvency Event means where a party: (a) resolves to be wound up or dissolved; (b) has a winding up application presented against it; (c) has a controller, receiver, receiver/manager or administrator appointed to it, or over all or part of its business or assets; (d) has a liquidator or a provisional liquidator or bankruptcy trustee appointed to it; (e) is insolvent or unable to pay its debts when they fall due; (f) is bankrupt or commits any act of bankruptcy; (g) enters into any arrangement or assignment for the benefit of its creditors; or (h) or anything analogous, or having substantially similar effect, to the occurrence of these events in relation to a party.
Installed Software means the object code of any software that the Supplier agrees to provide under the Agreement to be installed on a Device or infrastructure owned or used by the Customer, its Affiliates or any User, including any App, including any Updates.
Intellectual Property Rights includes all right, title and interest wherever subsisting (now or in the future) throughout the world and whether registered or not, in and to: (a) copyright, neighbouring rights, Moral Rights and the protection of databases, circuit layouts, topographies and designs; (b) methods, inventions, patents, utility models, trade secrets, know-how, confidential information, technical and product information; and (c) trade marks, business and company domain names and get ups This also includes the right to apply for the registration, grant or other issuance of the rights described in paragraphs (a), (b) and (c) above and any other right generally falling within this term.
Master Subscription Agreement means this document titled “Master Subscription Agreement, including its schedules, forming part of the Agreement.
Module means, as the context requires, one or more of the modules or components of the Services to which the Customer subscribes as set out in an Order and provided by the Supplier under the Agreement.
Moral Right has the meaning given in the Copyright Act 1968 (Cth), and any equivalent right in any jurisdiction.
Order 1 means the first Order between the parties and numbered as "Order 1".
Order means an order, or orders that are numbered consecutively, agreed to by the Supplier in writing for the provision of the Services and the Professional Services to the Customer, forming part of the Agreement.
Permitted Use means the permitted use of the Services consistent with the Documentation and, if applicable, description of the Modules as set out in an Order;.
Personal Information has the meaning given in the Privacy Act 1988 (Cth) and any equivalent term in any other applicable jurisdiction.
Personnel means the officers, employees, secondees, agents, contractors and subcontractors of a party and its Affiliates.
Platform means any software as a service the Supplier agrees to provide under the Agreement, including any Updates.
Privacy Laws means all laws applicable to the protection of Personal Information under the Agreement, including where applicable the Privacy Act 1988 (Cth).
Privacy Policy means the Supplier’s privacy policy, available on its website www.prooftec.com/info/privacy-policy, as amended from time to time.
Professional Services means on boarding, implementation, development, integration, report creation, training, on- site support services and other advisory and professional services that the Supplier agrees to provide to the Customer from time to time, and any support, maintenance and applicable repair related services that are not within the Support Services, that the Supplier agrees to provide to the Customer from time to time for the Services. Professional Services do not include the Support Services or any remedies that the Supplier is required by law to provide to the Customer in respect of the Services, including any remedies under the Australian Consumer Law or any similar law.
Professional Services Terms means the terms and conditions for Professional Services set out in clause 8 and any relevant Order.
Reseller or Distributor means a person authorised by the Supplier to sell any of the Services.
Review Date means each anniversary of the Commencement Date, excluding the term of any Trial Period.
Services means any Installed Software and the Platform, including associated storage of the Customer Data within them.
Service Term means the Initial Service Term and any Further Service Term, subject to earlier termination in accordance with the terms of the Agreement.
Supplier means the party that is shown as the Supplier in Order 1 or any of its successors or assigns that the Customer is contracting with for the Supplies.
Supplier Content means all data, information and content that the Supplier incorporates into the Services (excluding Customer Data).
Supplier Rates means the hourly or daily or other rates or fees charged by the Supplier to the Customer for the Professional Services, or any other additional services or supplies performed by the Supplier under the Agreement, as determined by the Supplier or agreed between the parties from time to time. Those rates or fees may be set out in an Order or a notice by the Supplier to the Customer.
Supplies means the Services, Support Services for the Services and Professional Services for the Services, the Supplier’s provision and licence of Documentation, and any other item or service provided by the Supplier under the Agreement, if any.
Support Services means the Supplier’s support and maintenance services as further described in clause 7 and the Support Terms.
Support Terms means the terms and conditions for the Support Services as set out in Schedule 1 as amended by the Supplier on notice from time to time, except that the Supplier will not vary the Support Terms in a manner that materially decreases the overall Support Services.
Site means the site set out in the Order.
Tax means any taxes or assessments of tax of any nature imposed by any government of any country or state, government agency, together with any interest, fine or penalty on such tax, including GST, excluding any taxes on the Supplier’s profit or income.
Third Party Products means any software, documentation, file, content or other material or service that is provided by a third party that is supplied or made available by the Supplier as part of or in connection with the Services and is subject to additional or separate terms and conditions.
Trial Period has the meaning given to that term in clause 4.1.
Updates means new versions or releases of the Services as they are released to the Customer, including fixes, patches, security patches, modifications and enhancements.
User means any individual Personnel authorised by the Customer to use any part of the Services or who uses any part of the Services using the Customer's log in or access credentials.
INTERPRETATION
Unless expressed to the contrary, in the Agreement:
words in the singular include the plural and vice versa;
if a word or phrase is defined its other grammatical forms have corresponding meanings;
‘includes’ means includes without limitation;
'will' means must, unless the context requires otherwise;
‘notice’ means notice in writing;
no rule of construction will apply to a clause to the disadvantage of a party merely because that party put forward the clause or would otherwise benefit from it;
a reference to:
a person includes a partnership, joint venture, unincorporated association, corporation and a government or statutory body or authority;
a document (including a reference to the Agreement) is to that document as amended, novated or replaced;
a person includes the person’s legal personal representatives, successors, assigns and persons substituted by novation;
any legislation includes subordinate legislation under it and includes that legislation and subordinate legislation as modified or replaced; and
any reference to www.prooftec.com includes any other URL used by the Supplier from time to time
AGREEMENT AND ORDERS
Agreement
The Agreement between the Supplier and the Customer comprises the following documents, provided that where there is any inconsistency between these documents, they must be read in the following descending order of precedence):
the Order or Orders;
this Master Subscription Agreement; and
any other Supplier document or policy referred to, or incorporated by reference in, any of these documents from time to time, including the Support Terms.
Execution of the Order 1 by the parties constitutes the parties' agreement to the whole Agreement.
An Order sets out the Modules that the Customer has agreed to purchase from the Supplier that the Customer has agreed to purchase or lease (if any).
The parties may enter into any number of Orders during the term of the Agreement.
The terms and conditions of this Master Subscription Agreement apply whether the Customer purchases the Services directly from the Supplier, or from any Reseller or Distributor.
If the Customer purchases the Services through a Reseller or Distributor, the Services that the Supplier provides are those stated in the Order placed by the Customer with the Supplier, or by the Reseller or Distributor with the Supplier on the Customer's behalf. The Customer acknowledges and agrees that the Resellers or Distributors are not authorised to make any promises or commitments on the Supplier's behalf, other than those that are expressly contained in the Agreement.
TERM, SERVICE TERM AND RENEWALS
Trial Period
If an Order includes a trial period when the Customer signs up for access to a Service (Trial Period), the Customer has no obligation to continue to use the Service after the Trial Period. The Trial Period commences on the date set out in the Order, or if no date is set out, the date the Supplier makes the Platform available for use by the Customer or such other date agreed between the parties in writing (if any). The Trial Period expires at the end of the period set out in the Order as the duration of the Trial Period, and if none is set out, one (1) month after its commencement.
Initial Service Term and Further Service Terms
The Initial Service Term commences on the Commencement Date and expires on the Expiry Date.
Thereafter, the Agreement automatically renews for the first and subsequent Further Service Terms, subject to either party's right to terminate the Agreement in accordance with clause 4.2(d).
The Supplier will give notice to the Customer of the expiry date of the current Service Term not less than 45 days prior to its expiry, together with the commencement date of the next Further Service Term and its duration, unless either party has served notice of termination in accordance with clause 4.2(d) prior to the notice to be given under this clause.
If either party does not wish to renew the Agreement for any Further Service Term, that party may terminate the Agreement by giving notice to the other party not less than 30 days prior to the expiry date of the current Service Term.
SERVICES
Provision and licence of Services
Subject to the Customer paying the Fees, the Supplier will provide the Services to the Customer, and grants the Customer a non-exclusive, non-transferable, non-sub-licensable licence for the Customer and its Affiliates to use the Services and Documentation at the Site for the Permitted Use for the Service Term. The Supplier does not grant any licence to use the source code in any software within the Services or Deliverables.
Supplier obligations
The Supplier will also provide any training, implementation and on boarding services agreed to in an Order. The provision of such services is subject to the Professional Services Terms.
The Supplier will provide the Supplies to the Customer in accordance with laws applicable to the Supplier and its provision of the Supplies to its customers generally, subject to the Customer's use of the Supplies in accordance with the Agreement.
The Supplier may modify the Services and Support Services from time to time, including by adding or deleting features and functions, provided that the Supplier does not materially diminish the overall functionality or scope of the Services or Support Services.
Availability of Platform
The Supplier will use its reasonable endeavours to make the Platform available to the Customer, subject to reasonable scheduled downtime and emergency downtime.
Storage and Transfer of Customer Data
The Supplier will store the Customer Data within the Platform for the Initial Storage Period at no additional cost to the Customer. After the expiry of the Initial Storage Period the Supplier will continue storing the Customer Data subject to the Fees set out in the Order.
If the Customer does not wish the Supplier to continue storing the Customer Data within the Platform, the Customer must give the Supplier at least 14 days’ notice, together with the details of the storage platform to which the Customer wishes the Customer Data to be transferred. Within 14 days after receiving the Customer’s notice, the Supplier will arrange for the Customer Data to be transferred to the Customer’s storage platform subject to the Fees set out in the Order.
If the Customer gives the Supplier notice within 14 days after the expiry or termination of the Service Term and at that time the Supplier stores any Customer Data within the Platform, then the Supplier will arrange for the transfer of the Customer Data then held within the Platform to another storage platform specified by the Customer subject to the Fees set out in the Order. After 30 days after the expiry or termination of the Service Term, the Supplier will have no obligation to maintain or provide the Customer Data to the Customer and may, unless prohibited by law, delete all Customer Data from the Platform or otherwise in its possession or control.
Beta Services
From time to time, the Supplier may make Beta Services available to the Customer at no charge. The Customer may choose to try Beta Services in its sole discretion.
Third Party Products
The Supplier will use its reasonable endeavours to give notice to the Customer if the Supplier provides any other Third Party Products as part of or through the Services. Third Party Products are subject to additional or separate
licence terms and any terms indicated in any applicable readme files, installation details, or specifically set out in the relevant Order (as applicable), and in certain circumstances may be licensed directly to the Customer from the third party supplier. The Customer will comply with such licence terms. Any additional or separately applicable licence terms will, with regard to their respective subject-matter, prevail in the event of a conflict with the Agreement, provided, however, that such additional or separate terms will not impose on the Supplier any obligations or liabilities in addition to those set out in the terms of the Agreement. Subject to clause 14.2, the Supplier provides no warranty, guarantee, condition, or other assurance with respect to the Third Party Products, which will be subject to whatever warranty, if any, each such third party supplier may provide to the Customer.
CUSTOMER OBLIGATIONS
General
To access and use the Services, the Customer will meet the minimum technical requirements set out in the Documentation or Supplier's website or otherwise set out in a notice by the Supplier to the Customer. The Supplier may vary these minimum technical requirements as a result of modifications or enhancements to the Services or changes to third party technology or their support services and security, on no less than 21 days' prior notice, by providing Customer with updated Documentation or otherwise by notice to the Customer.
The Customer acknowledges and agrees that the availability of the Services is dependent on the availability of communication networks used by the Customer to access the Platform, including mobile coverage and access to the internet and may be subject to limitations, delays and other problems inherent in the use of such communications networks. The Supplier is not responsible or liable for any delays, delivery failures, or errors resulting from unavailability or deficiencies in such communications networks used by the Customer.
The Customer is permitted to allow its Personnel to use the Services and Documentation on behalf of the Customer in connection with the Customer's use of the Services.
The Customer is responsible and liable for:
the acts and omissions of any person (including its Personnel) who uses or accesses the Services under the Customer's subscription for any Services and any breaches of the Agreement caused by such persons;
the accuracy and completeness of all User-defined information contained within the database;
the Customer's Devices, hardware, systems, internet and network connection and local network access; and
providing privacy or data protection notices to individuals (including its clients and any third parties) and obtaining all necessary privacy and data protection related consents in relation to the disclosure of Personal Information to the Supplier and to any other third parties to enable the Supplier and those parties to provide the Services and any ancillary services, any disclosure or transfer of Personal Information outside of the jurisdiction of the individual or the Supplier and for the purpose of the Supplier’s communications with the Customer’s clients, whether directly or through any third parties .
The Customer will not and will ensure that any person who accesses or uses the, Services or Documentation (including its Users) does not: permit any person who is not the Customer's Personnel to use or access the Services or Documentation; use the Services or Documentation to provide services to a third party; copy, transmit, distribute, license, sublicense, sell, rent, lease, transfer, provide, assign, reproduce, alter or otherwise commercially exploit any part of the Services or Documentation; adapt or modify the whole or any part of the Services or Documentation in any way whatsoever; interfere with any subscription key mechanism in relation to the Services; reverse engineer, disassemble, decompile, modify, or translate or otherwise use for any purpose, other than the Permitted Use, any part of the Services or otherwise seek to obtain, derive or use for any purpose, other than the Permitted Use, the source code, algorithms, underlying ideas, file formats or non- public APIs to the Services; use or access the Services or Documentation to create software that has functionality similar to or substantially similar to all or part of the Services; remove or obscure any proprietary or other notices contained in any part of the Services or Documentation; combine or incorporate the whole or any part of the Services or Documentation in any other program, product, system or service; and use the Services to store or transmit Harmful Code. Nothing in this clause prohibits activities that cannot be prohibited in law.
The Customer will ensure that the Customer Data and the Supplier’s use of the Customer Data: does not infringe, misappropriate or violate a third party's Intellectual Property Rights, or rights of publicity or privacy; does not infringe, violate or encourage any conduct that would infringe or violate any law or would give rise to criminal or civil liability; is not fraudulent, false, misleading (directly or by omission or failure to update information) or deceptive; is not defamatory, obscene, pornographic, vulgar or offensive; does not promote
discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; is not violent or threatening or will not promote violence or actions that are threatening to any other person; does not promote illegal or harmful activities or substances; or does not cause probity and reputational harm events that injures the goodwill, brand, public image, or reputation of the Supplier.
Access to Customer facilities and systems
The Customer will provide the Supplier with access to the Customer's facilities and systems as reasonably required for the Supplier to provide the Supplies.
The Supplier will comply with the Customer's applicable workplace health and safety policies and security policies when accessing the Customer's facilities or systems.
SUPPORT SERVICES
The Supplier will provide the Customer with Support Services during the Service Term in accordance with the Support Terms. As part of the Support Services, the Supplier will provide the Customer with any Updates to the Services made generally available by the Supplier to all its customers.
Subject to clause 14.2, if the Supplier elects to provide support-related services and supplies for items that are outside the scope of the Support Terms (including Excluded Incidents), the Supplier is entitled to charge, and the Customer will pay to the Supplier, the Fees for such services and supplies in accordance with the Supplier Rates, the Supplier's fees for materials and the Supplier's expenses for travel to and from the Customer's premises and delivery of materials.
Support Services exclude first line support. The Customer will ensure it operates a first line helpdesk for its Users to provide information and assistance on use of the Services and to identify whether any incidents affecting a Users' use of the Services is attributable to the Services or the Customer's network and systems. Only the Customer's administrators are entitled to contact the Supplier’s helpdesk.
PROFESSIONAL SERVICES TERMS
Professional Services
The Customer may request Professional Services. Professional Services are subject to the parties entering into an Order for them, unless the Supplier otherwise agrees in writing to provide them, including as described in clause 7(b).
The Supplier will provide the Professional Services to the Customer in accordance with any Order or as otherwise agreed by the parties. The Supplier is entitled to charge, and the Customer will pay to the Supplier, the Fees for such services and supplies in accordance with the Supplier Rates, the Supplier's Fees for materials and the Supplier's expenses for travel to and from the Customer's premises and delivery of materials. The Supplier will perform the Professional Services with reasonable skill and care.
In consideration of the Customer paying the Fees, the Supplier grants the Customer and its Affiliates a non- exclusive, non-transferable, non-sub-licensable licence to use the Deliverables i at the Site for the Permitted Use for the Service Term. Unless otherwise set out in an Order, the equivalent restrictions in clause 6.1(e) apply to the Deliverables. The Supplier does not grant any licence to use the source code in any software within the Services or Deliverables.
Customer responsibilities
The Supplier’s performance of any Professional Services is subject to the timely performance of the Customer's responsibilities, which are reasonably necessary for the Supplier to perform the Professional Services, and is subject to any assumptions for the Professional Services.
Without limiting any of the Customer's responsibilities set out in an Order for the Professional Services, the Customer will do all of the following in a timely manner as reasonably required for the performance of the Professional Services:
provide all information and data relating to the Customer's business or operations;
ensure the Customer's Personnel are available for, and attend, meetings, and are available for providing, and promptly provide, instructions, approvals, directions and sign-off;
ensure that the Customer provides all data in the format specified by the Supplier for migration to the Services; and
provide suitable access to the Customer's facilities and systems, and provide suitable office facilities.
Changes
If there is a delay or other failure in the performance of the Customer's responsibilities, if any assumptions are not met or if a Force Majeure Event arises, and this affects the timing of the Professional Services, then the Supplier’s time for performance of the Professional Services will be extended accordingly.
If there is a delay or other failure in the performance of the Customer's responsibilities or if any assumptions are not met, and this affects the timing, cost or scope of the Professional Services, then this will be deemed to be a change to the Professional Services. In such circumstances, the Supplier is entitled, acting reasonably, to vary the Fees for the Professional Services, and the performance of the changed Professional Services will be subject to the agreement of both parties in relation to a change request or other document in writing (agreement not to be unreasonably withheld or delayed). If the parties do not agree to that change, the Supplier is not required to perform the change to the Professional Services. However, if the Supplier does perform any of the Professional Services in such an instance, it is entitled to charge, and the Customer will pay, the Fees for the delay and any additional work in accordance with the Supplier Rates, the Supplier's Fees for materials and the Supplier's expenses for travel to and from the Customer's premises and delivery of materials.
EQUIPMENT
Application
This clause 9 applies until such time as the Supplier receives the payment for the Equipment and delivery and installation fees for the Equipment in full.
Right of entry
Personal Property Security Interest
In this clause: PMSI has the meaning given to the term 'purchase money security interest' in the PPSA; PPS Lease has the meaning given to the term in the PPSA; PPSA means the Personal Property Securities Act 2009 (Cth); PPSR means the Personal Property Securities Register established under section 147 of the PPSA; and Security Interest has the meaning given to that term in the PPSA.
The Customer acknowledges and agrees that if the terms of the Agreement create a Security Interest in the Equipment in favour of the Supplier which is capable of registration on the PPSR, the Supplier may make registrations on the PPSR against the Customer in the form of a PPS Lease and a PMSI.
The Customer will take and do any action and will sign any document required by the Supplier to ensure the Security Interest is enforceable, perfected and otherwise effective and has the priority required by the Supplier which, unless the Supplier agrees in writing otherwise, is first priority.
Exclusion of PPSA provisions, exercise of rights and notice
To the extent the law permits: the Supplier need not comply with sections 95, 118, 121(4), 125, 130, 132(3)(d), 132(4) and, for the purposes of section 115(7), 137(3) of the PPSA; sections 142 and 143 of the PPSA are excluded; and the Customer waives the right to receive a verification statement under section 157 of the PPSA.
To the extent the law permits, the Customer waives the right to any time period that must otherwise lapse under any law before a Supplier or receiver exercises a right, power or remedy.
The Customer must at its own expense do any further act and execute any further documents which the Supplier may reasonably request in order to protect the Supplier's title to the Equipment and the Supplier's rights, powers and remedies under the Agreement. The Customer agrees that in the in the event the Customer fails to deliver any documents requested by the Supplier, the Customer hereby appoints the Supplier to be the Customer's lawful attorney for the purposes of executing and registering such documents.
FEES AND PAYMENT TERMS
Fees
The Customer will pay to the Supplier all Fees in accordance with the terms of the relevant Order and other provisions of the Agreement. The Customer must pay the amount of each invoice within 14 days after its issue. The Customer authorises the Supplier to debit the Fees from the Customer's account after the Supplier issues
each invoice. If the Customer provides a credit card account for payments under the Agreement, then the Supplier may charge the Customer a payment surcharge applicable to credit card transactions.
The Fees for Services that the Customer has not already purchased, or is not currently subscribed for, are subject to the Supplier’s then current fees for such Services.
Review and change of Fees
On or after each Review Date, any and all recurring Fees that are set out in an Order (whether Fees payable fora subscription as part of the Services, or Supplier Rates or otherwise) will be reviewed in accordance with the review method set out in the Order 1.
In addition to any increase permitted in clause 10.2(a), the Supplier is entitled to change any Fees from the commencement date of any Further Service Term, provided that the Supplier gives the Customer with no less than 45 days' prior notice.
The Supplier reserves the right to charge the Customer for its reasonable travel, accommodation and subsistence expenses incurred by the Supplier in connection with the Professional Services provided by the Supplier and to charge delivery and collection costs for materials.
Interest and Taxes
If payment of the whole or a part of a Fee is not made by the due date, the Customer will be liable to pay the Supplier interest on demand at 1% per month, compounded monthly, or such maximum interest rate permitted under law.
Unless otherwise set out in the Agreement, any amount payable by reference to the Agreement does not include any Taxes (including GST), which the Supplier will charge the Customer as applicable. The Customer agrees to pay to the Supplier the amount of any Taxes (including GST) payable in connection with the Supplies in addition to any Fees payable under the Agreement.
GST
Without limiting clause 10.3(b), this clause applies if the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (GST Act) applies and unless the context indicates otherwise, any reference to a term in this clause that is defined or used in the GST Act is a reference to that term as defined or used in such Act.
Unless otherwise expressly stated, all amounts referred to in the Agreement, including amounts used to determine a payment to be made by one party to the other (other than an amount referred to in clause 10.4(g), are exclusive of GST (GST Exclusive Consideration).
To the extent that GST is payable in respect of all or any part of a supply made by a party (Supplier) under or in connection with the Agreement, the GST Exclusive Consideration to be provided under the Agreement for that supply is increased by an amount equal to the GST payable by the Supplier (excluding any Excess GST).
The recipient must pay the additional amount payable under clause 10.4(c) to the Supplier at the same time and in the same manner as the GST Exclusive Consideration for the supply is otherwise required to be provided.
The Supplier must issue a tax invoice to the recipient of the taxable supply at or before the time of payment of the additional amount on account of GST under clause 10.4(c) or at such other time as the parties agree.
Whenever an adjustment event occurs in relation to any taxable supply made under or in connection with the Agreement the Supplier must determine the net GST in relation to the supply (taking into account any adjustment and excluding any Excess GST) and if the net GST differs from the amount previously paid under clause 10.4(d), the amount of the difference must be paid by, refunded to or credited to the recipient, as applicable.
If one of the parties to the Agreement is entitled to be reimbursed or indemnified for a loss, cost, expense or outgoing incurred in connection with the Agreement, then the amount of the reimbursement or indemnity payment must first be reduced by an amount equal to any input tax credit to which the party being reimbursed or indemnified is entitled in relation to that loss, cost, expense or outgoing and then, if the amount of the payment is consideration or part consideration for a taxable supply, it must be increased on account of GST in accordance with clause 10.4(c).
CONFIDENTIALITY AND PUBLICITY
Confidentiality obligations
Subject to clause 11.1(b), all the Supplier’s Confidential Information disclosed to the Customer and the Customer's Confidential Information disclosed to the Supplier under or in connection with the Agreement is to be kept confidential and only used for the purposes of or as otherwise permitted by the Agreement and will not be disclosed by a party to any other person, except:
as required by law or the rules of any applicable securities exchange;
with the prior written consent of the party who disclosed the Confidential Information.
Clause 11(a) does not apply if:
the relevant information is in the public domain at the date of the Agreement, or comes into the public domain after that date without a breach of the Agreement or other breach of confidence;
the recipient party already knew or had, on a non-confidential basis, the information before receiving the relevant information; or
the recipient party independently developed or acquired the information, without a breach of the Agreement or other breach of confidence.
Notwithstanding any other provision of the Agreement, the Supplier may disclose that the Customer is a client of the Supplier and the types of the Services or the Professional Services or other supplies that the Supplier performed, or continues to perform, for the Customer, and reproduce the Customer's logo on the Supplier's marketing or other material.
DATA, SECURITY, AND PRIVACY
Customer obligations and acknowledgment
The Customer will only provide the Supplier with access to Customer Data in connection with the Agreement in accordance with the Privacy Laws.
The Customer warrants that it has taken all steps required to enable the Supplier to store, handle and process any Customer Data in the exercise of its rights or performance of its obligations under this Agreement in compliance with all applicable Privacy Laws (including by providing any privacy notice or obtaining all necessary privacy and data protection related consents in relation to the disclosure of Personal Information to the Supplier, any disclosure or transfer of Personal Information outside of the jurisdiction of the individual or the Supplier and for the purpose of the Supplier’s communications with the Customer’s clients (including for marketing purposes)).
The Customer acknowledges and agrees that the Supplier and its sub-processors engaged for storing, handling or processing Customer Data may be located in various jurisdictions throughout the world (including in Asia-Pacific, the European Union and the United States of America) and that the use of the Supplies may involve disclosure or transfer of the Customer Data outside of the jurisdiction of the individual or the Supplier.
The Customer acknowledges and agrees that:
the Supplier is entitled to, and does access, collect, store and use the Customer Data for the following purposes: diagnostic, training or marketing purposes (including by way of case studies); to conduct analytics about how Users interact with the Supplies; to test, enhance and otherwise modify the Supplies; to improve the Supplies or develop other products and services; and to create aggregated or de-identified data; and
the Supplier is entitled to retain such data, and the Intellectual Property Rights and any other property rights in such data or derivative works of such data that are either aggregated or de-identified (Aggregated/De-identified Data) will vest in, and be owned by, the Supplier, and the Supplier may transfer, disclose and exploit such Aggregated/De-identified Data for any purpose, including for improvements in the model output of the Supplier's products and services and for marketing purposes (including by way of case studies).
Supplier obligations
The Supplier will take reasonable steps to maintain administrative, physical and technical safeguards designed to protect of the security, confidentiality and integrity of the Customer Data held within the Platform, as well as access to, and use of, the Services. Those safeguards will include, measures designed to prevent unauthorised access to, or disclosure of, Customer Data (other than by the Customer or Users). Without limiting this obligation, and subject to clause 14.2, the Customer acknowledges that the Supplier cannot guarantee the security of the Services and Customer Data and secure transmission of data to, and from, the Services.
If, as a result of the Agreement, the Supplier is able to access any Customer Data, then the Supplier will, in relation to Personal Information within the Customer Data collected, held, used or disclosed under the Agreement: comply with Privacy Laws applicable to the Supplier; take reasonable steps to ensure that the Personal Information is protected against misuse, interference or loss and from unauthorised access, modification or disclosure; not collect or use Personal Information other than for the purpose of performing its obligations under the Agreement or as otherwise permitted under the Agreement; and provide reasonable cooperation with the Customer in connection with the Customer's compliance with the Privacy Laws.
Other than where the Supplier breaches the Privacy Laws or this clause 12.2, to the full extent permitted by law, and subject to clauses 14.2, 17(d) and 17(e), the Supplier excludes all liability in connection with the Agreement, whether arising in contract, tort (including negligence) or otherwise, for any loss, damage, cost or expense suffered or incurred by the Customer in connection with any loss, misuse, unauthorised modification, illegal access, unauthorised disclosure, security breach, data breach, any other security intrusion, virus, bug, other malicious software, harmful components or tampering in relation to any Personal Information held by the Supplier.
INTELLECTUAL PROPERTY RIGHTS
Supplier and Customer rights
Except as expressly set out in the Agreement, nothing in the Agreement transfers ownership in, or otherwise grants any rights in, any Intellectual Property Rights of a party.
All Intellectual Property Rights and other right, title and interest, in the Services, Documentation, Deliverables, and Aggregated/De-identified Data whether in the original or modified form, are owned by, or licensed from a third party by, the Supplier, and any Intellectual Property Rights and other right, title and interest, arising out of, or connected with, any modification or enhancement to the Services, Documentation, Deliverables or Aggregated/De-identified Data and any feedback and suggestions made by the Customer concerning any of them, will vest in the Supplier. This clause applies to the Services, Documentation and Deliverables as modified or enhanced.
Any Intellectual Property Rights in the Customer Data and any Customer Material as between the Supplier and the Customer remain owned by, or vest in, the Customer.
Mutual assignment
To the extent that, notwithstanding clauses 13.1(b) or 13.1(c), any right, title or interest in any of a party's Intellectual Property Rights (Owning Party) vests in the other party (Assigning Party) or any of its Personnel, the Assigning Party hereby unconditionally and irrevocably assigns and will procure that its Personnel unconditionally assign to the Owning Party all that right, title or interest , free of any encumbrance and security interest. To the extent that any of the Assigning Party or its Personnel are entitled to assert any Moral Rights in the Owning Party's Intellectual Property Rights, the Assigning Party will procure from all authors and holders of those Moral Rights, all necessary consents and waivers in writing authorising the Owning Party and its transferees and licensees to act, or omit to act, in any way that could or would otherwise be an infringement of those Moral Rights.
Licence of Customer Data and Customer Material
The Customer grants to the Supplier a non-exclusive, royalty-free, transferable and sub-licensable (to the Supplier’s Affiliates and their respective Personnel) licence to use, reproduce, modify and develop the Customer Material and the Customer Data (and all Intellectual Property Rights incorporated in such material) for the purpose of exercising its rights and performing its obligations under the Agreement.
WARRANTIES
General
Each party warrants that it has the legal power and authority to enter into the Agreement and that the Agreement will be legally binding and enforceable against it.
Consumer guarantees
Where the Customer is a consumer under Australian Consumer Law or any other similar law, the Supplies come with consumer guarantees or similar rights that cannot be excluded, restricted or modified by law, and nothing in the Agreement excludes, restricts or modifies such consumer guarantees or similar rights.
Disclaimers
Subject to clause 14.2 and except as expressly provided in the Agreement, neither party provides any representation, warranty, condition, guarantee or assurance relating to the performance of its obligations (collectively ’Warranty’) of any kind, whether express or implied and any implied terms are expressly excluded under this Agreement.
Subject to clause 14.2, and without limiting the Supplier's express obligations under the Agreement, the Supplier does not warrant that the Services will be uninterrupted or error-free, nor does it make any Warranty as to the performance of the Services or results that may be obtained from use of the Services. To the maximum extent permitted by law, the Services, Supplier's Content and Beta Services are provided 'as is' and 'as available' and exclusive of any Warranty whatsoever.
DEFENCE AGAINST THIRD PARTY CLAIMS
Supplier obligations
Subject to clause 15.3, the Supplier will defend the Customer and its directors, officers and employees against any third party claim, action or proceeding alleging that the use by the Customer or its Users of the Services, Documentation or Deliverables in accordance with the Agreement infringes any Intellectual Property Rights of any third party (each an 'Infringement Claim'),
The Supplier will have no liability under clause 15.1(a) for any of the following: any Infringement Claim based on use of the Services, Documentation and Deliverables by the Customer or Users contrary to the Agreement; any Infringement Claim based on content or materials provided by, or on behalf of, the Customer or any Users or arising from complying with any instruction or direction given by, or on behalf of, the Customer or any User; any modification of the Services, Documentation and Deliverables that was neither performed by the Supplier nor its Personnel nor authorised by the Supplier; Infringement Claim relating to any Third Party Products, provided that such Infringement Claim does not arise from the Supplier not having the rights to provide or make available the Third Party Products from a person that purports to own or have the right to license, resell or distribute the Third Party Product; and where the infringement is caused by use of the Services, Documentation and other Deliverables with a product or service not provided by the Supplier.
If the Services, Documentation or Deliverables do infringe the Intellectual Property Rights of a third party or if there is a reasonable basis for concluding that they may infringe the Intellectual Property Rights of a third party, the Supplier may, at its own option and expense:
procure for the Customer the right to continue using the Services, Documentation or Deliverables;
replace or modify the Services, Documentation or Deliverables so that they become non-infringing while continuing to provide substantially the same functionality; or
if, despite using its reasonable endeavours, the Supplier is unable to achieve an outcome referred to in clause 15.1(c)(i) or 15.1(c)(ii), terminate the Agreement, including the provision and licence of the Services, Documentation or the Deliverables on 30 days' notice to the Customer. If the Supplier terminates the Agreement, it will refund any pre-paid Fees directly relating to the Services and Professional Services for the period after the date of termination.
Customer obligations
Subject to clause 15.3, the Customer will defend the Supplier, its Affiliates and its directors, officers and employees against any third party claim, action or proceeding alleging that the use by the Supplier, its Affiliates or its Personnel of the Customer Data or Customer Material in accordance with the Agreement infringes any Intellectual Property Rights or other rights of any third party, or that that the development or provision of any Supplies where performed in a manner in compliance with the Customer's instruction infringes any Intellectual Property Rights or other rights of any third party or arising from the Customer's use of the Supplies or Supplier Content in an unlawful manner or in breach of the Agreement . This obligation does not apply if any claim, action or proceeding against the Supplier arises from the Supplier’s breach of the Agreement.
Defence procedures
A party that wishes to rely on clause 15.1 or 15.2 (as the case may be) will: promptly give the obligator notice of the relevant third party claim, action or proceeding; if required by the obligator, give the obligator sole control of the
defence and settlement of the claim, action or proceeding (except that the obligator may not make any admission of liability without the consent of the other party, which must not to be unreasonably withheld or delayed); and give the obligator all reasonable assistance at the obligator’s expense.
Exclusive remedy
Subject to clause 14.2, this clause 15 states the obligator's sole liability to the other party, and the other party’s exclusive remedy against the obligator, for any third party claim, action or proceeding described in clause 15.1 or
15.2 (as the case may be). However, this does not exclude the obligator's liability to the extent that it breaches its obligations under this clause 15.
INDEMNITIES
Supplier indemnities
Subject to clause 16.3, the Supplier will indemnify and will continue to indemnify the Customer and its directors, officers and employees for any liability, loss, damage, cost, expense, claim, action or proceeding arising from the Supplier's breach of clause 13.
Customer Indemnities
Subject to clause 16.3, the Customer will indemnify and will continue to indemnify the Supplier and its directors, officers and employees for any liability, loss, damage, cost, expense, claim, action or proceeding arising from the Customer's breach of all or any of clauses 5.1, 6.1(d), 6.1(e), 6.1(f), 12.1(b) and 13.
Indemnity procedures
If the indemnity set out in clause 16.1 or 16.2 relates to a third party claim, action or proceeding, the indemnified party will: promptly give the indemnifying party notice of the claim, action or proceeding; if required by the indemnifying party, give the indemnifying party sole control of the defence and settlement of the claim, action or proceeding (except that the indemnifying party may not make any admission of liability without the consent of the indemnified party, which must not to be unreasonably withheld or delayed); and give the indemnifying party all reasonable assistance at the indemnifying party's expense.
EXCLUSION AND LIMITATION OF LIABILITY
To the maximum extent permitted by law and subject to clauses 14.2, 17(d) and 17(e), neither party nor its Affiliates have any liability: (i) under, or in connection with, the Agreement (whether in contract, tort (including negligence) or otherwise) for any loss of profits, revenues, anticipated savings, goodwill or data; or (ii) any indirect, consequential, exemplary or punitive loss or damages, except the exclusion in this clause 17(a)(ii) does not exclude liability under any indemnity.
To the maximum extent permitted by law, and subject to clauses 14.2, 17(d) and 17(e), the aggregate liability of a party together with all of its Affiliates under, or in connection with, the Agreement (whether in contract, tort (including negligence) or otherwise) will not exceed the total amount paid by the Customer and its Affiliates under the Agreement for the Supplies in the 12 months preceding the first incident out of which the liability arose.
Clauses 17(a) and 17(b) do not limit each party’s liability under any indemnity under clause 16.
If Australian Consumer Law or any other legislation that applies to the Customer prohibits provisions in a contract excluding or modifying the application or exercise of, or liability under any guarantee, condition, warranty or assurance, then, to the extent that it is fair and reasonable and otherwise permitted by law, the Supplier’s liability for any breach of such guarantee, condition, warranty or assurance will be limited, at its option, to one or more of the following:
if the breach relates to goods, the replacement of the goods or the supply of equivalent goods; the payment of the cost of replacing the goods, or of acquiring equivalent goods; or the repair of such goods or payment of the cost of having the goods repaired; and
if the breach relates to services, the supplying of the services again or the payment of the cost of having the services supplied again,
except that this limitation does not apply to a breach of consumer guarantees relating to clear title, undisclosed securities and undisturbed possession under sections 51 to 53 of the Australian Consumer Law.
Nothing in the Agreement excludes or limits a party's or its Affiliates' liability for fraud. Nothing in the Agreement excludes or limits the Customer's liability to pay Fees, payment surcharges, interest and Taxes under the Agreement.
SUSPENSION
Customer Data and Service Suspension
The Supplier may, at any time remove, disable or suspend the Customer's access to any Customer Data within the Services if the Supplier, acting reasonably, considers any Customer Data to be objectionable for any reason, in breach of the terms of the Agreement, or otherwise harmful until the incident has been resolved. The Supplier will give notice to the Customer of such action, prior to or as soon as reasonably practicable after it has taken such action.
The Supplier may suspend access to the Services for a reasonable period for security reasons, to protect the Services from attack or where it considers that the Services have been used in a manner that may breach applicable law or unless it is trivial or inconsequential, the other terms of the Agreement or which may affect the integrity or use of the Services by the Customer or other customers of the Supplier. The suspension will be for a reasonable period, until the Supplier considers, acting reasonably, that the breach or incident has been resolved. The Supplier will give notice to the Customer of such action, prior to or as soon as reasonably practicable after the Supplier has taken such action.
Suspension for Non-Payment
The Supplier may provide the Customer with notice of non-payment of any amount unpaid by its due date specifying that if payment is not made that the Supplier may suspend access to, and use of, the Services. Unless the full amount has been paid within 14 days or such later date as set out in the notice of non-payment, the Supplier may, by giving a further notice to the Customer, suspend the Customer's access to and use of the Services with immediate effect, until the Customer has remedied the non-payment.
TERMINATION
Termination for Cause
A party (Terminating Party) may terminate the Agreement by giving the other party (Defaulting Party) notice with immediate effect:
if the Defaulting Party commits a material breach of the Agreement that is incapable of remedy; or
if the Defaulting Party commits a material breach of the Agreement that is capable of remedy and fails to remedy the breach within 14 days of the Terminating Party's notice to the Defaulting Party requesting the breach to be remedied; or
if the Defaulting Party becomes subject to an Insolvency Event.
Material breach
For the purposes of clause 19.1, a material breach includes:
the Customer's failure to pay any applicable Fees by the relevant due date in accordance with the Agreement; and
the Customer's breach of each of clauses 5.1, 6.1(e), 6.1(f) or 13.
Nothing in clause 19.2(a) limits any other matter that may constitute a material breach of the Agreement.
Consequences of the expiry or termination
On expiry or termination of the Agreement:
the Customer will cease using or accessing the Supplies;
at the request of the Supplier, the Customer will deliver up, delete or destroy copies of any Installed Software and Documentation; and
clause 5.4(c) will apply.
Expiry or termination does not affect a party's accrued rights, obligations and liabilities.
DISPUTE RESOLUTION
Dispute resolution process
Prior to the commencement of any legal proceedings, any dispute arising in connection with the Agreement will:
first be referred to a director or senior executive of each party to seek a satisfactory resolution to the dispute in good faith; and
if the dispute cannot be resolved by agreement, referred to mediation in accordance with this clause 20.
If such persons described in clause 20(a) are unable to resolve the dispute within 21 days of the dispute being referred to them, the dispute will be submitted to mediation in accordance with, and subject to, the then current mediation rules published by the Institute of Arbitrators and Mediators Australia.
The parties will continue to perform their obligations under the Agreement as far as possible as if no dispute had arisen pending the final settlement of any matter referred to mediation.
The costs of mediation will be shared equally by the parties. Each party will pay its own costs in connection with the dispute.
Nothing in this clause 20 will preclude either party from taking immediate steps to seek an urgent injunction or interlocutory relief or from exercising its rights of termination or suspension.
APP TERMS
Apple App Store
The terms in this clause 21.1 apply to the App that the Customer obtained from the Apple App Store. Capitalised terms in this clause, not defined elsewhere in the Agreement have the meaning given to them in Apple's terms and conditions and the Apple Media Services terms and Conditions, https://www.apple.com/legal/internet-services/itunes/au/terms.html. The Customer's (and its Users' that are End Users of the App under Apple's terms and conditions) use of the Apple App Store, Apple's services and the App is subject to such terms and conditions.
The Supplier and the Customer (for itself and on behalf of any of the Customer's Users that are End Users of the App under Apple's terms and conditions) acknowledge and agree that:
the Agreement is concluded between the Customer and the Supplier only, and not with Apple and that the Supplier, not Apple, is solely responsible for the App and its contents;
the Customer's licence to use the App obtained from the Apple App Store is limited to a non-transferrable licence to use the App on any Apple-branded device that the Customer/End User owns or controls and as permitted by the Usage Rules set forth in the Apple Media Services Terms and Conditions, except that such App may be accessed and used by other accounts associated with the Customer via Family Sharing, volume purchasing or Legacy Contacts;
Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App;
the Supplier, not Apple, is responsible for addressing any claims of the Customer or any third party relating to the App or the Customer's possession and/or use of the App, including:
product liability claims;
any claim that the App fails to conform to any applicable legal or regulatory requirement; and
claims arising under consumer protection, privacy or similar legislation, including in connection with the App's use of the Apple App Store HealthKit and HomeKit frameworks (as relevant);
in the event of any failure of an App to conform to any applicable warranty, the Customer may notify Apple, and Apple will refund the purchase price (if any) of the App to the Customer, if the Supplier is required to offer this right pursuant to Apple's terms and conditions with the Supplier. The Customer acknowledges that, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, damages, costs or expenses attributable to any failure to conform to any warranty will be the Supplier's responsibility in accordance with the Agreement;
in the event of any third party claim that the App or possession and/or use of the App by the Customer infringes that third party's Intellectual Property Rights, the Supplier, not Apple, will be solely responsible for the investigation, defence, settlement and discharge of any such claim; and
Apple, and Apple's subsidiaries, are third party beneficiaries of this clause 21.1 and that upon the Customer's acceptance of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this clause 19 against the Customer as a third party beneficiary.
The Customer (for itself and on behalf of any of the Customer's Users that are End Users of the App under Apple's terms and conditions) represents and warrants that:
it is not located in a region that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” region; and
it is not listed on any U.S. Government list of prohibited or restricted parties.
Google Play
The terms in this clause 21.2 apply to the App that the Customer obtained from Google Play. Capitalised terms in this clause, not defined elsewhere in the Agreement have the meaning given to them in Google Play's terms and conditions and https://play.google.com/intl/en_au/about/play-terms/index.html. The Customer' (and its Users' that are users of the App under Google Play's terms and conditions) use of Google Play, Google Play's services and the App is subject to such terms and conditions.
The Supplier and the Customer (for itself and on behalf of any of the Customer's Users that are users of the App under Google Play's terms and conditions) acknowledge and agree that the Agreement is concluded between the Customer and the Supplier and that Google will not be responsible for and will not have any liability under the Agreement.
GENERAL
Statutory notice
If the Supplier provides an express warranty under the Agreement as described under the Australian Consumer Law, the Supplier provides the Customer with the following notice, which, to the maximum extent permitted by law, is not intended to give the Customer any rights under the Australian Consumer Law that the Customer would not otherwise have, or limit the operation of clause 14:
“Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled to: (1) cancel your service contract with us; and (2) to a refund for the unused portion, or for its reduced value. You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done, you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.”
Force Majeure
Neither party will be responsible for failure or delay of performance of its obligations (other than the Customer's obligation to pay Fees) if caused by: an act of war, hostility, or sabotage; act of God; pandemic or epidemic; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions or directions; strike or lock-out; or other event outside the reasonable control of the obligated party (Force Majeure Event). The party affected by a Force Majeure Event will promptly give notice the other party of such an event and will use its reasonable endeavours to mitigate its effect.
Variations to Agreement
The Supplier may amend the Agreement (including the Privacy Policy incorporated herein) with at least 45 days' prior notice. If the amendment is detrimental to the Customer and is not made for compliance with law, prevention of fraud, for security purposes or for a new module or new functionality of the Services, or to comply with any requirements of a provider of a Third Party Product, the Customer is entitled to give notice to the Supplier in writing within 14 days after the notice of the amendment, if the Customer does not agree with such amendment. If the Customer gives the Supplier such notice, the Supplies will continue to be governed by the terms and conditions of the Agreement prior to amendment for the remainder of the current Service Term. If the Agreement is extended or renewed for a renewal term, the amended terms of the Agreement will then apply.
Export and import law compliance
Supplies provided by the Supplier under the Agreement are under the jurisdiction of Australia and any local country from which the Supplies are exported or imported. The Customer is responsible for ensuring compliance, and will ensure its use and that of any of its Users complies, with import and export laws, applicable to any of the Supplier, its Affiliates, the Customer, the Customer's Affiliates, its Users and the Supplies.
Communication
Any communication or notice given pursuant to the Agreement will sufficiently given if it is in writing and delivered, or sent by hand, courier, prepaid post, or email to the other party, in accordance with any of contact details provided by
that party (and as updated by a party from time to time by notice in writing). In addition they will be sufficiently given to the Customer if it is given by SMS, any messaging through any of the Supplier's Services or otherwise in writing through any form of electronic media and given to the Supplier if they are emailed to the Supplier at its helpdesk service email address.
Waiver
No right under the Agreement will be deemed to be waived, except by notice in writing signed by both parties.
Delay
No forbearance, delay or indulgence by a party in enforcing the provisions of the Agreement will prejudice or restrict the rights of that party, nor will any waiver of those rights operate as a waiver of any subsequent breach.
Severability
Should any part of the Agreement be or become invalid, that part will be severed from the Agreement. Such invalidity will not affect the validity of the remaining provisions of the Agreement.
Benefit
The Supplier holds the benefit of the indemnities in clause 16.2 for itself and on trust for its Affiliates, directors, officers and employees and the Supplier hold the benefit of the exclusions and limitations of liability in clause 17 for itself and on trust for its Affiliates. The Customer holds the benefit of the indemnities in clause 16.1 for itself and on trust for its Affiliates, directors, officers and employees and the Customer holds the benefit of the exclusions and limitations of liability in clause 17 for itself and on trust for its Affiliates. Each party is entitled to vary, terminate, waive or otherwise deal with any of its rights under the Agreement without the agreement of any of its associated beneficiaries.
Assignment and novation
The Customer will not assign its rights or transfer its rights and obligations under the Agreement without the Supplier's prior written consent. The Supplier may assign its rights to payment to any third party. The Supplier may assign its rights or novate its rights and obligations under the Agreement, to an Affiliate or a purchaser of the assets or business, or any part of the assets or business to which the Agreement relates, and the Customer will enter into any additional document required to give effect to such assignment, or novation.
Indemnities
Each indemnity in the Agreement is a continuing obligation, separate and independent from the party's other obligations and survives the expiry or termination of the Agreement.
It is not necessary for a party to incur expense or make a payment before enforcing any indemnity conferred by the Agreement.
Joint and individual liability and benefits
Except as otherwise set out in the Agreement, any covenant, agreement, representation or warranty under the Agreement by two or more persons binds them jointly and each of them individually, and any benefit in favour of two or more persons is for the benefit of them jointly and each of them individually.
Survival of provisions
The following provisions, and any other provision expressed or implied to survive termination or expiry, survive termination or expiry of the Agreement: clause 5.4(a) (Customer Data), clause 9 (Fees and Payment Terms), clause 11 (Confidentiality), clause 12 (Data, Security and Privacy), clause 13 (Intellectual Property Rights), clause 16 (Indemnities), clause 17 (Exclusion and Limitation of Liability), clause 19.3 (Consequences of Termination) and clause 20 (Dispute Resolution).
Entire understanding
The Agreement states all the express terms of the agreement between the parties in respect of its subject matter and supersedes all previous written agreements.
Jurisdiction
The Agreement is governed by and is to be construed in accordance with the laws of New South Wales, Australia.
Subject to clause 22.15(c), each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of New South Wales, Australia and any courts which have jurisdiction to hear appeals from any of those courts and waives any right to object to any proceedings being brought in those courts.
If the Customer is not domiciled in Australia, then any dispute, controversy or claim arising out of, relating to or in connection with the Agreement, including any question regarding its existence, validity or termination will be resolved by arbitration in accordance with the ACICA Arbitration Rules. The seat of arbitration shall be Sydney, Australia. The language of the arbitration will be English. The number of arbitrators will be one. Nothing in this clause prevents either party from instituting proceedings to seek urgent injunctive, interlocutory or declaratory relief.
Counterparts
The Agreement, including any Order, may be executed in any number of counterparts. Each counterpart is deemed to be an original and all counterparts taken together constitute one document. The parties consent to electronic execution of the Agreement by any means.
Schedule 1 SUPPORT TERMS
GENERAL
These Support Terms set out a description of the Support Services that the Supplier agrees to provide:
when the Customer purchases the Services directly from the Supplier; and
where the Customer purchases the Services through a Reseller or Distributor, subject to the additional provisions and variations in this Schedule 2 that apply
DEFINITIONS AND INTERPRETATION
Unless otherwise provided in these Support Terms, defined terms have the meaning given to them in the clauses of the Master Subscription Agreement. In addition to those terms defined in clauses of the Master Subscription Agreement, the following words have the following meaning:
Gold Support means the Supplier's gold level support services as set out in section 4 of this Schedule.
Incident means: (a) the Services do not perform substantially in accordance with the Documentation as a result of a problem or error in the Installed Software; or (b) the Platform is unavailable due a problem or error in the Platform; with both paragraphs (a) and (b) excluding an Excluded Incident and being subject to any other exclusions in these Support Terms and other clauses in the Agreement.
Request means a general question relating to development, feature issues or documentation of the Services.
Standard Support means the Supplier's standard level support services as set out in section 3 of this Schedule.
Standard Support Hours means 09:00 to 17:00, Monday to Friday (inclusive), Sydney time, Australia, excluding any public holiday in Sydney, Australia.
Support Level means the level of the Support Services (Standard Support or Gold Support) that the Customer has subscribed to under an Order.
Targeted Response Time means the time period, in which the assigned support resource (or support system) will endeavour to provide the Customer with an initial technical response as a result of an Incident reported by the Customer.
References to Business Day and hours on a Business Day in these Support Terms means a day during Standard Support Hours and an hour during Standard Support Hours, respectively.
STANDARD SUPPORT
Description of Standard Support
The Standard Support consists of assistance to be provided by the Supplier to the Customer via the internet with respect to use of the Services and the Supplier will endeavour to resolve the Incidents (by workaround, resolution or otherwise)
The Supplier will endeavour to provide the Standard Support within The Targeted Response Time set out in section 3.2, provided that in the case of Severity 1 or Severity 2 incidents the Supplier is able to assess the Incident remotely, and the Supplier does not need to attend the Customer's premises to assess the Incident. The Standard Support is available and provided during the Standard Support Hours.
Classification of Incidents and Targeted Response Time Goals
The classification of the severity of the impact of particular Incidents, and the corresponding Targeted Response Times, under the Standard Support are as follows, provided the Supplier is able to assess the incident remotely:
Severity
Impact
Targeted Response Time
1.
Operation of the Platform is subject to an unplanned outage.
4 hours on a Business Day
2.
The operation of the Platform or the Installed Software is below their optimum level;
An Incident affects an essential function of the Platform or the Installed Software; or
1 Business Day
An Incident is blocking critical systems tests or Deliverables.
3.
General product questions relating to development, feature issues or documentation.
2 Business Days
GOLD SUPPORT
Description of Gold Support
The Gold Support consists of assistance provided by the Supplier to the Customer via the internet with respect to use of the Services and the Supplier will endeavour to resolve the Incidents (by workaround, resolution or otherwise).
The Supplier will endeavour to provide the Standard Support within The Targeted Response Time set out in section 4.3, provided that in the case of Severity 1 or Severity 2 Incidents the Supplier is able to assess the Incident remotely and it does not need to attend the Customer's premises to assess the Incident. The Gold Support is available and provided during Standard Support Hours and 24/7/365 for Severity 1 Incidents.
Upgrading to, and downgrading from, Gold Support
The Customer may upgrade from the Standard Support to the Gold Support at any time, provided that Customer pays the Fees for the Gold Support specified in an Order, or where not specified in the Order, the Supplier's then current Fees for providing the Gold Support. However, the Customer may only downgrade from the Gold Support to the Standard Support on the commencement date of the next Further Service Term. To downgrade from the Gold Support to the Standard Support, the Customer must give the Supplier a notice at least 30 days prior to the commencement of the relevant Further Service Term. On such downgrade, the Customer will pay the Supplier’s then current Fees for the Standard Support.
Classification of Incidents and Targeted Response Time
The classification of the severity of the impact of particular Incidents and the corresponding Targeted Response Times, under the Gold Support are as follows, provided the Supplier is able to assess the Incident remotely:
Severity
Impact
Response Time Goal
1.
Operation of the Platform is subject to an unplanned outage.
2 hours
2.
The operation of the Platform or the Installed Software is below their optimum level;
An Incident affects an essential function of the Platform or the Installed Software; or
An Incident is blocking critical systems tests or Deliverables.
Same Business Day
3.
General product questions relating to development, feature issues or documentation.
1 Business Day
CUSTOMER OBLIGATIONS
Support Contact
All communications relating to Support Services will be made with no more than two (2) designated contact persons of the Customer who will act as a point of contact between Customer and the Supplier. Each such contact must possess or, at the Customer’s expense, acquire the necessary expertise and training to assist in the diagnosis and resolution of the Incidents under direction of the Supplier.
Pre-Call Procedures
Prior to requesting the Support Services from the Supplier, the Customer will comply with the troubleshooting procedures for the Services. If such efforts are unsuccessful in resolving the Incident, the Customer will then promptly notify the Supplier of the Incident. The Customer is required to satisfy the following requirements when receiving the Support Services:
the situation giving rise to the Incident is reproducible;
the Customer’s contact will have the technical knowledge regarding the Services and any other software or hardware systems involved, and in the facts and circumstances surrounding the Incident;
the Platform and the App, including all software and hardware, is available to the Customer’s contact without limit during any communication with the Supplier’s Support Services personnel;;
if requested by the Supplier, the Customer will make available to the Supplier a technical representative during Standard Support Hours to assist in diagnosing and resolving the Incidents; and
the Customer will provide information and data requested by the Supplier to enable it to investigate and endeavour to resolve the Incident.
The Supplier is entitled to suspend performance of the Support Services for any Incident to the extent that it is not reasonably practical to perform the Support Services as a result of the Customer's non-compliance with all or any of these requirements.
Remote Connection
If appropriate, the Customer will cooperate with the Supplier to allow and enable the Supplier to perform Support Services via remote connection to the Customer's systems using standard, commercially available remote-control software. The Customer will be solely responsible for instituting and maintaining proper security safeguards to protect the Customer’s systems and data within the Customer's systems whilst the Supplier is connected to such systems.
Training
The Customer acknowledges and agrees that any Updates provided by Supplier pursuant to the Agreement may require additional training of the Customer’s Personnel, and in which case the Customer is required to order such training under an Order for the Professional Services for additional Fees at the Supplier Rates.
Australian Consumer Law
Where the Customer is a consumer under the Australian Consumer Law or any other similar law, the goods and / or services the subject of these Support Terms come with consumer guarantees or similar rights that cannot be excluded, restricted or modified by law. For the avoidance of doubt:
nothing in these Support Terms excludes, restricts or modifies any consumer guarantees or similar rights under the Australian Consumer Law or any other similar law which cannot be excluded, restricted or modified by law; and
the Supplier will comply with its obligations under the Australian Consumer Law notwithstanding any provision of these Support Terms or the Agreement.
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