Software Licence Services Agreement
The Licenced Software and Software Support Services are provided on the terms and conditions set out below.
1. Definitions and Interpretation
In this agreement, unless the context clearly indicates otherwise:
Address for Notices means the address of each party specified in the Details or any new address notified in writing by a party to the other party as its new Address for Notices;
Agreement means this agreement, comprising the terms and conditions set out in this document and the schedules (as varied by the parties from time to time);
Archive Licence means the licence granted by the Licensor to the Tenant upon termination of this agreement, in respect of the Licensed Software;
Archive Licence Fee means the fees payable to the Licensor to access products stored on the Licensed Software upon termination of this agreement, as set out in Item 6 of the Details;
Business Day means any day that is not a Saturday, Sunday, gazetted public holiday or bank holiday in New South Wales;
Claim means, in relation to a person, a claim, demand, remedy, suit, injury, damage, loss, cost, liability, action, proceeding, right of action, claim for compensation or reimbursement or liability incurred by or to be made or recovered by or against the person, however arising and whether ascertained or unascertained, or immediate, future or contingent;
Commencement Date means the date specified in Item 3 of the Details;
Confidential Information means, the terms of this agreement and any information in any form which:
(a) relates to the design, specification or content of the Licensed Software;
(b) is, by its nature, confidential or non-public;
(c) is marked or designated or confirmed by a party as confidential or proprietary at the time of its disclosure; or
(d) a party knows or ought to know is confidential,
(e) but excludes information that is:
(i) in or enters the public domain through no fault of either party;
(ii) was made available to a party by a person (other than the other party) who, as far as that recipient party knows, has or then had the unrestricted legal right to do so; or
(iii) was developed by a party without that party relying on, referring to, or incorporating any of the other party’s Confidential Information;
Corporations Act means the Corporations Act 2001 (Cth);
Defect means a fault, error, failure, degradation, deficiency or malfunction that causes the relevant Product not to meet the requirements under this agreement;
Derivative Works has the meaning given to that term in clause 10.1(b);
Designated Operating Environment means the operating system required to operate the Licensed Software, being the latest two versions of:
(a) Google Chrome;
(b) Mozilla Firefox;
(e) Chrome for Android; or
(f) Microsoft Edge.
Disclosing Party has the meaning given to that term in clause 13.1(a);
Fees means the:
(a) Licence Fee; and
(b) Optional Services Fee (if applicable),
and as increased from time to time in accordance with clause 9;
Fee Increase has the meaning given to that term in clause 9.1;
Fee Increase Notice has the meaning given to that term in clause 9.2;
GST means any form of goods and services tax payable under the GST Law;
GST Law means the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
Insolvency Event in relation to an entity, means:
(a) a receiver, receiver and manager, administrator, trustee or similar official being appointed over any of the assets or undertaking of the entity;
(b) the entity suspending payment of its debts generally;
(c) the entity being or becoming unable to pay its debts when they are due or is unable to pay its debts within the meaning of the Corporations Act;
(d) the entity entering into or resolving to enter into any arrangement, understanding or compromise with, or assignment for the benefit of, its creditors or any class of them;
(e) an application or order being made for the winding up or dissolution of, or the appointment of a provisional liquidator to, the entity or a resolution is passed or steps are taken to pass a resolution for the winding up or dissolution of the entity otherwise than for the purpose of an amalgamation or reconstruction which has the prior consent of all of the members of the entity; or
(f) an administrator being appointed in accordance with the Corporations Act; and
in relation to an individual, means the individual being or becoming insolvent or committing an act of bankruptcy as those terms are used in the Bankruptcy Act 1966 (Cth);
Intellectual Property Rights means all rights conferred by statute, common law or equity in or in relation to copyright, trade marks, service marks, designs, patents, circuit layouts, source code, computer programs, know-how, trade secrets, inventions and Confidential Information, and all and any other results of intellectual activity in any field whether or not registrable, registered or patentable. These rights include rights that may exist in applications to register these rights and all renewals and extensions of these rights;
Licence means the licence granted by the Licensor to the Tenant in respect of the Licensed Software under this agreement;
Licence Fee means the fees payable to the Licensor for licensing the Licensed Software and performing the Software Support Services set out in Item 5 of the Details;
Licensed Software means the software described in Item 2 of the Details;
Material means any document or other thing in which Intellectual Property Rights exist, including the Products;
Minimum Term means the period specified in Item 4 of the Details;
Month means a calendar month starting on the Commencement Date and ending on the corresponding day of the next named month, and where the Term is beyond 1 month, this calendar date carries over for each subsequent month. Where there is no corresponding day in the next named month, the calendar month will be taken to end at the end of the next named month.
New Release, in relation to the Licensed Software, means software (including the latest current version) which has been produced primarily to extend, alter or improve the Licensed Software, as the case may be, by providing additional functionality or performance enhancement (whether or not Defects in the Licensed Software are also corrected) while still retaining the original designated purpose of the Licensed Software;
Notice means a notice, demand, approval, consent, request or other communication in relation to this agreement made in accordance with clause 23;
Notice of Dispute has the meaning given to that term in clause 19.2;
Optional Services means any services in connection with:
(a) subsequent training of the Tenant or any of its personnel in connection with any of the Products;
(b) customisation, modification or enhancement of any of the Products including Templates;
(c) migration of any of the Tenant’s Data;
(d) provision of consulting services to the Tenant;
(e) project management for the Tenant; or
(f) other services as requested by the Tenant and agreed to be provided by the Licensor;
Optional Services Fee means the fees payable to the Licensor for the Optional Services as set out in Item 9 of the Details, or as otherwise agreed by the parties in writing from time to time;
Personnel means any officers, employees, agents, representatives and subcontractors of the Tenant or the Licensor (as applicable);
Personal Information means personal information or sensitive information as defined in the Privacy Act 1988 (Cth);
Privacy Law means the Privacy Act 1988 (Cth), the Australian Privacy Principles contained in Schedule 3 to the Privacy Act 1988 (Cth), any approved privacy codes defined in that act (as apply to the parties to this agreement), and any other applicable law or codes relating to the protection of Personal Information;
Products means the Licensed Software, Templates, the Reports and/or the User Documentation;
Purpose means the purpose for which the Tenant may use the Licensed Software, being:
(a) as a collaborative project management and document management software platform;
(b) to upload Tenant Data to run analysis on the Tenant Data and generate and distribute Reports; and
(c) to use Reports generated:
(i) for continuous review and amendment of data;
(ii) to provide feedback to users;
(iii) to measure data quality; and
(iv) other internal management purposes;
Receiving Party has the meaning given to that term in clause 13.1(a);
Reports means the output reports which are generated by the Licensed Software and based on analysis of the Tenant Data;
Services means the:
(a) Software Support Services; and
(b) Optional Services (if applicable);
Software Support Services means the support services specified in the Details;
Technical Information means all scientific and technical know-how and information (whether in unrecorded or recorded form and whether consisting of, or comprised in, documents, software, equipment and other materials) relating to the Licensed Software, which is disclosed or made available to the Tenant directly or indirectly by the Licensor for the purposes of this agreement and which describes the operation and functionality of the Licensed Software;
Template means template notices and communications for the contracting process;
Tenant Data means data owned or supplied by the Tenant to which the Licensor is provided access pursuant to this agreement, or data which may otherwise be generated, compiled, arranged or developed using the Licensed Software by either party to this agreement, and includes all information inputted by the Tenant into the Licensed Software to enable the Licensed Software to generate the Reports;
Term means the period specified in clause 2;
Territory means the territory in which the Tenant operates as specified in Item 7 of the Details;
Update means software which has been produced primarily to overcome Defects in, or to improve the operation of, the relevant part of the Licensed Software whether or not that Licensed Software has also been extended, altered or improved by providing additional functionality or performance enhancement; and
User Documentation means all printed and digital materials including any user manuals, operating manuals, help files, user reference documentation, Technical Information and materials which assist or supplement the use and understanding of the Products.
In this agreement, unless the subject or context otherwise requires:
(a) words importing the singular include the plural and vice versa;
(b) words importing one gender include the other genders and references to persons include corporations and vice versa;
(c) a reference to any party or other person includes that person’s successors and permitted assigns;
(d) a reference to a recital, clause or schedule is a reference to a recital, clause or schedule of this agreement;
(e) a reference to writing includes all means of reproducing words in a tangible and permanently visible form;
(f) a reference to a person includes a natural person, company, corporation, partnership, trust, estate, joint venture, sole proprietorship, government (including branches or subdivisions thereof), governmental or municipal agency, association, co-operative and any other entity or person whatsoever;
(g) monetary amounts are expressed in Australian dollars;
(h) including and includes are not words of limitation;
(i) a reference to any law, legislation or legislative provision includes any statutory modification, amendment or re-enactment, and any subordinate legislation or regulations issued under that legislation or legislative provision;
(j) where a party comprises two or more persons any Agreement or obligation to be performed or observed by that party binds those persons jointly and each of them severally, and a reference to that party is deemed to include a reference to any one or more of those persons; and
(k) the headings in this agreement are not to affect its interpretation.
(a) Subject to clause 2.2, this agreement commences on the Commencement Date and will continue for either:
(i) the Minimum Term; or
(ii) so many additional months as the Tenant has purchased under this agreement,
as applicable, unless this agreement is validly terminated in accordance with clause 20.
(b) After the Minimum Term or so many additional months as the Tenant has purchased under this agreement, this agreement will continue until it is validly terminated in accordance with clause 20.
2.2 Free Trial Agreements
Notwithstanding anything else in this agreement, in the event that the Licence is granted to the Tenant as part of a free trial of the Licensed Software, this agreement will automatically terminate on the date that is thirty (30) calendar days from the Commencement Date, unless the parties enter into a paying agreement.
In consideration of and subject to the Tenant paying the Licence Fee to the Licensor, the Licensor grants to the the Tenant a non-exclusive, non-transferable licence to use the Licensed Software for the Purpose in accordance with the terms and conditions of this agreement for the Term and in the Territory.
(a) In consideration of and subject to the Tenant paying the Licence Fee to the Licensor, the Licensor grants to the the Tenant a non-exclusive, non-transferable licence to use the Licensed Software for the Purpose in accordance with the terms and conditions of this agreement for the Term and in the Territory.
(b) The Tenant may not sublicense access to or use of the Licensed Software, except where in accordance with the following:
(i) the Tenant may sublicense access to and use of the Licensed Software for the Purpose and to Invitees only;
(ii) such Invitees may use the Licensed Software only where in accordance with this agreement and particularly, clause 22; and
(iii) the Tenant is responsible for ensuring and must procure that any Invitees (and their Personnel) comply with the terms of this agreement in their use of the Licensed Software.
4. Archive Licence
Upon termination of this agreement and payment of the Archive Licence Fee to the Licensor, the Tenant may purchase an Archive Licence, whereby the Tenant may access the documentation stored on the Licensed Software.
5. Restrictions on Licence
(a) The Tenant may only use the Licensed Software for the Purpose.
(b) Other than as permitted by law or provided for in this agreement, the Tenant must not:
(i) copy, alter, modify, adapt or reproduce the Licensed Software;
(ii) merge any part of the Licensed Software with any other software;
(iii) reverse assemble or reverse compile or directly or indirectly allow or cause a third party to reverse assemble or reverse compile the whole or any part of the Products;
(iv) itself, nor may it permit others to sell, rent, lease, sub-license, lend, assign, time-share, distribute or otherwise make the Products available to any unauthorised third party;
(v) redistribute the Products to unauthorised third parties, in whole or in part, including but not limited to, extensions or components, without the prior written approval of the Licensor;
(vi) make any attempt to circumvent the technological measures that control access to or use of the Products;
(vii) redistribute any Licensed Software registration number/license authorisation files, developer license files or access codes to unauthorised third parties without the prior approval of the Licensor;
(viii) use the Products to transfer or exchange any material where such transfer or exchange is prohibited by law;
(ix) remove, alter, obscure or deface any:
(A) patent, copyright, trademark, or proprietary rights notices of the Licensor or its licensors;
(B) trade mark, service mark, get up, logo or branding, proprietary or restricted use legend; or
(C) disclaimer, warning, instruction or advisory notice,
which are contained in or affixed to the Licensed Software, User Documentation or any other Materials provided under this agreement; or
(x) do anything that would prejudice the Licensor’s right, title or interest in the Licensed Software.
5.2 Authorised Users
(a) must ensure that users keep the Licensed Software security and access credentials confidential and secure; and
(b) must not disclose those credentials to any third party.
6. Supply of the Licensed Software and Services
6.1 User Documentation
(a) At the time of the grant of access to the Licensed Software, the Licensor will provide the Tenant with access to the User Documentation as available on the Licensor’s website.
(b) The Licensor may from time to time give the Tenant access to copies of any amended, revised or supplementary User Documentation during the Term.
(c) The Tenant acknowledges that the User Documentation contains important information regarding the Licensed Software and the Reports and agree to comply with the rules for use as set out in the User Documentation.
The Tenant acknowledges and agrees that its use of the Licensed Software is not a substitute for any data retention obligations it may have under any other laws.
6.3 Availability of Licensed Software and Services
(a) The Tenant acknowledges that the Licensed Software and Services may be supplied over communications links and other networks and that the Licensor relies on the availability of those links and networks.
(b) the Licensor will use commercially reasonable steps to make sure that those links and networks are available, but makes no warranty that the Licensed Software or Services will be continually available and excludes all liability for loss or damage if the Licensed Software or Services cannot be provided because of the unavailability of the links or networks.
(c) In no event will the Licensor be liable to the Tenant for loss of data or the inability to retrieve data, resulting from or incidental to the use of the Licensed Software or Services, and the Licensor does not accept responsibility for any interference or damage to the Tenant’s computer systems or data which arises in connection with the provision of the Licensed Software or the Services.
6.4 Maintenance of Licensed Software and Services
(a) The Tenant acknowledges that the Licensor may be required to perform maintenance operations, which may affect the continuous operation or functioning of the Licensed Software or Services.
(b) The Licensor will attempt to provide the Tenant with notice of the maintenance downtime, except when circumstances beyond the control of the Licensor prevent it from doing so.
7. Updates and New Releases
(a) During the Term, the Licensor may make available and manage Updates and/or New Releases for the Licensed Software for the Tenant.
(b) During the Term, the Tenant must accept and use any Update or New Release that the Licensor makes available, unless otherwise agreed.
(c) The Tenant is required to ensure the Licensed Software is used with a Designated Operating Environment.
(d) If the Tenant decides not to use the Update, New Release or supported web browser then the Tenant acknowledges and agrees that:
(i) subsequent Updates or New Releases may not operate with the Licensed Software; and
(ii) the Licensor may cease to provide Software Support Services for that release of the Supported Software from the release date of that Update or New Release, and thereafter:
(A) the Licensed Software may have its usefulness reduced over time;
(B) the Licensor may not be able to remedy any Defects in the Licensed Software.
(e) This agreement will continue to apply to the Licensed Software containing any installed Update or New Release which will be deemed to be the Licensed Software for the purpose of this agreement.
8. Fees and Payment
(a) The Tenant must pay the Licence Fees and, if relevant, the Optional Service Fees to the Licensor.
(b) The Licensor will invoice the Tenant for the Fees relating to the Minimum Term in advance of the Commencement Date and the Tenant must pay such Fees invoiced by the Licensor before access to the Licensed Software is provided.
(c) In the event that this Agreement continues beyond the Minimum Term, the Licensor will, in advance of any additional month(s), invoice the Tenant the applicable Fees for those additional month(s) and the Tenant must pay those Fees before continued access to the Licensed Software during those month(s) is provided.
(d) Additional payments under clause 8(c) may be arranged to be automatically cleared through a credit card, however in the event that payment is not to be automatically cleared, payment may be arranged separately between the parties through a separate written agreement.
(e) Payment will not be due until the Tenant receives a correctly rendered invoice. An invoice is correctly rendered if:
(i) the specified amount is correctly calculated and due for payment;
(ii) the invoice is set out in a manner that enables the Tenant to ascertain the goods or services to which the invoice relates and the amount payable in respect of those goods or services;
(iii) the invoice is accompanied (where necessary or where reasonably requested by the Tenant) by verifying documentation; and
(iv) the invoice is addressed to the correct address provided by the Tenant to the Licensor.
(f) If the Tenant disputes the amount of any invoice, the Tenant must inform the Licensor within ten (10) Business Days of its receipt and provide reasons for the dispute. If it is subsequently agreed by the parties or determined under the dispute resolution process in this agreement that an amount ought to have been paid at the time it was invoiced, then the Tenant must pay that amount within thirty (30) Business Days.
9. Fee Increases
9.1 Fee Increase
The Tenant acknowledges and agrees that the Licensor may increase the Licence Fee, or the Optional Services Fee from time to time in accordance with this clause 9 during the Term (Fee Increase).
9.2 Fee Increase Notice
(a) The Licensor will notify the Tenant of a Fee Increase in writing at least twenty (20) Business Days prior to implementing such an increase (Fee Increase Notice).
(b) The Tenant has fifteen (15) calendar days from the date of the receipt of the Fee Increase Notice to respond to the Fee Increase Notice and:
(i) if the Tenant does not accept to the Fee Increase, it must provide written notice to the Licensor that it does not accept the Fee Increase; and
(ii) failure of the Tenant to respond to the Fee Increase Notice within the fifteen (15) calendar day period is deemed to constitute acceptance of the Fee Increase.
9.3 Meetings between authorised representatives
(a) If the Licensor receives written notice from the Tenant in accordance with clause 9.2(b)(i), the parties must each cause an authorised representative to attend a meeting to discuss and produce agreement upon an alternative to the increase specified in the Fee Increase Notice, which meeting may be held by contemporaneous linking by telephone or live audio visual transmission (or similar).
(b) If, within ten (10) Business Days of the meeting referred to in clause 9.3(a) (or such further period as agreed in writing by the parties), the parties do not agree to the variation to the Fee Increase Notice, either party may terminate this agreement with immediate effect.
10. Tenant Data
10.1 Licence of Tenant Data
(a) During the Term, the Licensor may collect, de-identify and aggregate the Tenant Data collected by or stored in the Licensed Software or input into the Designated Operating Environment.
(b) The Tenant grants to the Licensor an irrevocable, perpetual, transferrable, worldwide, non-exclusive license to use, reproduce and modify the Tenant Data for the purposes of preparing the Reports, data, information and other derivative works (Derivative Works) for industry benchmarking, data compilation and research purposes. The Licensor shall be entitled to provide such Derivative Works to third parties provided that:
(i) the data is de-identified in accordance with best industry practice standards and the data cannot be re-identified;
(ii) none of the Tenant’s Confidential Information is disclosed in such Derivative Works; and
(iii) the Tenant is not identified in or linked to the Derivative Works.
10.2 Granting access to Tenant Data
The Tenant will grant access to the Tenant Data to the Licensor.
10.3 Attributes of the Tenant Data
The Tenant agrees and acknowledges that:
(a) it has sole responsibility for the form, completeness, accuracy, quality, integrity, timeliness and legal compliance of all the Tenant Data; and
(b) the ability of the Licensed Software to properly perform the Purpose is subject to the form, completeness, accuracy, quality, integrity, timeliness and legal compliance of the Tenant Data.
10.4 The Tenant’s warranties
The Tenant warrants that:
(a) it either owns or has obtained the required licences or consents to use the Tenant Data in accordance with this agreement including by:
(i) providing the Tenant Data to the Licensor; and
(ii) allowing the Licensor to:
(A) access, use and reproduce the Tenant Data; and
(B) create data, information or reports as a derivative of the Tenant Data; and
(b) the Tenant Data complies with all relevant laws, including any relevant Privacy Law.
11. Intellectual Property Rights
(a) The Tenant acknowledges and agrees that:
(i) the Intellectual Property Rights and other proprietary rights in the Licensed Software, and any modifications, updates or new releases of the Licensed Software, and the source code of the Licensed Software are owned exclusively by the Licensor;
(ii) the Tenant has no right, title or interest in the Licensed Software other than the rights as licensee under this agreement; and
(iii) there is no transfer of title or ownership to the Tenant of the Licensed Software, or any modifications, updates or new releases of the Licensed Software or the source code of the Licensed Software.
(b) If the Tenant learns that a third party is infringing the Intellectual Property Rights in the Licensed Software, it will promptly notify the Licensor in writing.
(c) This clause 11 will survive the termination or expiration of this agreement.
(a) Each party agrees not to disclose or cause or permit to be disclosed the Confidential Information of the other party during the term of this agreement or thereafter, except as specified in this agreement.
(b) Notwithstanding clause 12(a), each party is entitled to disclose the other party’s Confidential Information as follows:
(i) to its professional advisers, but only to the extent required for the purposes of obtaining necessary professional advice from such advisers in relation to this agreement and provided that such Confidential Information is disclosed subject to confidentiality;
(ii) as required by law;
(iii) to any other person with the prior written consent of the other party, which consent may be withheld at the absolute discretion of the other party and if granted will be subject to such conditions as required by the other party.
(c) Upon the earlier of a party’s request, or upon termination of this agreement, the other party must immediately:
(i) destroy; or
the Confidential Information or any other document that contains or refers to the Confidential Information of the other party, and must provide the other party with a letter certifying that all the Confidential Information has been returned or destroyed.
13.1 Personal Information
(a) Where a party discloses (Disclosing Party) any Personal Information to the other party (Receiving Party) under this agreement, the Receiving Party:
(i) must comply with the Privacy Law. In the case that the Receiving Party is not bound by the Privacy Law, the Receiving party must treat such Personal Information in the same manner as if the Privacy Law was applied to the Receiving Party;
(ii) must use the Personal Information only for the purposes of fulfilling its obligations under this agreement;
(iii) acknowledges that if the Receiving Party breaches the Privacy Law, the Disclosing Party may be held to be in breach of the Privacy Law and accordingly the warrants to the Disclosing Party that it, or its agents will not act in any way that contravenes the provisions of the Privacy Law; and
(iv) warrants that it will inform the Disclosing Party within five (5) Business Days of becoming aware of any privacy complaints or events which may cause the Privacy Law to be breached and to assist the Disclosing Party in investigating any complaints or potential breaches, including providing access to relevant information.
(b) The Receiving Party indemnifies the Disclosing Party, and the Disclosing Party excludes all liability in respect of any loss, claim, liability or expense (whether in contract, tort (including negligence), strict liability or otherwise) incurred by the Disclosing Party resulting from a breach by the Receiving Party or its agents of the Privacy Law including a breach of warranty under clause 13.1(a).
13.2 Eligible Data Breach
(a) Each party warrants that it has in place:
(i) a system to detect and report when an event has occurred that may give rise to reasonable grounds to suspect an Eligible Data Breach has occurred; and
(ii) a system to investigate and assess a suspected Eligible Data Breach within 30 days of becoming aware of a suspected breach, including a documented procedure for making an evaluation of each investigation.
(b) In the event of a suspected Eligible Data Breach the breached party will promptly notify and cooperate with the other party to minimise loss of goodwill, including liaising on client communications.
(c) The breached party indemnifies the other for any loss of data resulting from an Eligible Data Breach where the Office of the Australian Information Commissioner (OAIC) determines the breached party did not comply with the Privacy Act 1988 (Cth), or, if no determination is formally made by the OAIC, a senior barrister provides a written opinion to that effect.
(d) For the purposes of this clause 13.2, Eligible Data Breach has the meaning set out in section 26WE of the Privacy Act 1998 (Cth).
14. Licensed Software Warranties
14.1 Licensor Warranties
The Licensor warrants to the Tenant that:
(a) it is entitled to grant the Licence in this agreement and that the use of the Licensed Software as contemplated by this agreement will not infringe any copyright or other proprietary or intellectual property rights of any natural or legal person;
(b) no person has made any claim or demand or issued any proceedings in respect of the Licensed Software and the Licensor does not expect any person to make any claim or demand or issue any proceedings in respect of the Licensed Software; and
(c) it has not and will not assign, license, deal with or encumber in any way, any of the rights (except as provided under this agreement), or engage in any other activity which would interfere with the rights granted to the Tenant under this agreement.
14.2 Tenant Warranties
(a) The Tenant warrants that in using the Licensed Software, the Tenant will:
(i) act at all times to protect the value in the Licensed Software and ensure that the Intellectual Property Rights and other proprietary rights in the Licensed Software are not infringed in any way;
(ii) comply with the directions of the Licensor in relation to the use of the Licensed Software; and
(iii) immediately cease to use the Licensed Software in every manner whatsoever upon expiration or termination of this agreement or upon an earlier written request by the Licensor which is not inconsistent with this agreement.
(b) The Tenant warrants that it has not relied on any representation made by the Licensor other than those representations stated expressly in this agreement, the Schedules and any annexures to this agreement.
To the fullest extent permitted by law, the Licensor expressly excludes any warranty that:
(a) the Licensed Software and the Reports will be error free;
(b) the Licensed Software will operate without interruption;
(c) the Licensor will correct all errors or Defects in the Licensed Software or the Reports;
(d) the Licensed Software will be compatible with any hardware, software or data not supplied by the Licensor; or
(e) any Licensed Software or User Documentation will meet the Tenant’s requirements.
15.1 Liabilities excluded by the Licensor
The Licensor excludes all liability for loss or damage in relation to:
(a) the accuracy, completeness or quality of the Reports; and
(b) any decision made by the Tenant or any third party using the information supplied in the Reports.
15.2 Consequential loss
Neither party will be liable or responsible to the other party for any loss of profit, revenue or business, indirect, consequential, special or incidental loss or damage suffered or incurred by the other party arising out of or in connection with this agreement, whether in contract, tort, equity or otherwise. This exclusion applies even if those damages or losses may reasonably be supposed to have been in contemplation of both parties as a probable result of any breach at the time they entered into this agreement.
15.3 Implied terms
(a) The Parties acknowledge that under the Australian Consumer Law (ACL), consumers have certain rights which cannot be excluded, including guarantees as to the acceptable quality and fitness for purpose of goods and services. Nothing in this agreement will be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the ACL) and which by law cannot be excluded, restricted or modified.
(b) To the extent the law permits it to, the Licensor limits its liability to, at the election of the Licensor in its sole discretion, the supply of the Services or the Licensed Software again or the payment of the cost of having the Services or the Licensed Software supplied again.
(a) Subject to this clause and clause 15.3(a), the Tenant indemnifies and will keep indemnified the Licensor and its Personnel against any liability arising out of or in connection with:
(i) any breach by the Tenant or its Personnel of any warranty;
(ii) any negligent, reckless or intentional act or omission or wilful misconduct of the Tenant or its Personnel;
(A) damage to or loss or destruction of any property; or
(B) personal injury, illness or death to any person,
arising out of or in connection with the Tenant’s obligations under this agreement;
(iv) any breach of law by the Tenant or its Personnel; and
(v) any Claim, arising out of or in connection with the use by the Tenant or the Licensor, or any of their Personnel, of the Licensed Software or Services, regarding the infringement or alleged infringement of Intellectual Property Rights of any person.
(b) The Tenant’s liability under clause 16(a) will be reduced proportionally to the extent that the liability is caused or contributed to by the Licensor.
(c) Each indemnity in this agreement is a continuing obligation separate and independent from the Tenant’s other obligations and survives termination of this agreement.
(d) It is not necessary for the Licensor to incur expense or make payment before enforcing a right of indemnity conferred by this agreement.
17. Software Support Services
17.1 Provision of Software Support Services
The Licensor will provide the Software Support Services in respect of the Licensed Software, to the Tenant.
17.2 Optional Services
The Tenant may request that the Licensor provides the Optional Services. The Licensor is not required to provide the Optional Services. If the Licensor agrees with the Tenant to provide any Optional Services, these Optional Services shall be charged at the Licensor’s applicable Optional Services Fees from time to time.
18. Assignment, Novation and Subcontracting
(a) The Licence is personal to the Tenant who does not have the right to assign in whole or in part its rights or obligations under this agreement without the prior written consent of the Licensor.
(b) The Licensor may assign or novate its interests or obligations in or under this agreement by Notice in writing to the Tenant.
(a) The Tenant may not subcontract its obligations under this agreement without the prior written consent of the Licensor.
(b) If the Licensor consents to use of any subcontractor, the Tenant acknowledges that the Tenant remains primarily liable to the Licensor under this agreement.
The Tenant must not create or allow to come into existence a security over the Tenant’s interest in this agreement except with the Licensor’s prior written approval.
19. Dispute resolution
If any dispute arises in relation to this agreement, including in relation to its interpretation or any aspect of its performance, no party may commence any court or arbitration proceedings, including disputes which arise under this clause 19, unless and until the parties have complied with the procedures set out in this clause 19, except where a party seeks urgent interlocutory relief.
19.2 Notice of dispute
If any dispute arises in relation to this agreement, including in relation to its interpretation or any aspect of its performance, a party may give written Notice of dispute (Notice of Dispute) to the other parties which:
(a) states that a dispute has arisen;
(b) specifies the nature of the dispute; and
(c) requests that a meeting of the authorised representative of each party be held within ten (10) Business Days.
19.3 Meetings between authorised representatives
If a party receives a Notice of Dispute from any other party in accordance with clause 19.2, that party must cause an authorised representative to attend at the meeting referred to in the Notice of Dispute, which meeting may be held by contemporaneous linking by telephone or live audio visual transmission (or similar).
19.4 Dispute resolution and mediation
If, within ten (10) Business Days of the meeting referred to in clause 19.3 (or such further period as agreed in writing by them), the parties do not agree as to the:
(a) dispute resolution technique and procedures to be adopted;
(b) timetable for all steps in those procedures; and
(c) selection and compensation of the independent person required for such technique,
the parties must mediate the dispute. The mediation must be conducted in Sydney (or as agreed in writing between the parties) and in accordance with the Institute of Arbitrators and Mediators of Australia Mediation Rules (current as at the date of the dispute), except where they conflict with this clause 19, in which case this clause 19 will prevail.
19.5 Appointment of Mediator
If the parties have not agreed on the mediator and the mediator’s remuneration within five (5) Business Days after the end of the period set out in clause 19.4, either party may request the Chairman of the Resolution Institute or the Chairman’s nominee to:
(a) appoint a person as mediator (Mediator); and
(b) determine the remuneration of the Mediator.
The Mediator will set a timetable for the mediation of the dispute which the parties must comply with.
19.6 Commencement of proceedings
If, after following the procedures set out in clauses 19.1 to 19.5 above, the parties are unable to resolve a dispute in relation to this agreement, any party may commence court proceedings to resolve the dispute.
20.1 Termination without cause after the Minimum Term
(a) Either party may terminate this agreement after the Minimum Term without showing cause by providing no less than three (3) months’ prior written Notice.
(b) During the period of Notice set out in clause 20.1(a), each party must continue to comply with all of its obligations under this agreement.
20.2 Breach Notice
If the Tenant is in breach of this agreement and that breach is capable of remedy, then the Licensor may issue the Tenant with a Notice specifying:
(i) details of a breach of the agreement; and
(ii) the requirements for the Tenant to remedy that breach within thirty (30) calendar days of the date of the Notice, or such other reasonable time as the Licensor may determine.
20.3 Termination for cause
The Licensor may terminate this agreement immediately by written Notice to the Tenant:
(a) if the Tenant is in breach of this agreement and:
(i) the Tenant has failed to remedy the breach in accordance with the terms of the relevant breach Notice; or
(ii) the breach is not capable of remedy,
(b) if the Tenant assigns or novates this agreement other than in accordance with the terms of this agreement; or
(c) the Tenant has failed to pay the Licensor in accordance with this agreement, provided that the Licensor has issued the Tenant with a Notice which:
(i) details the amount due and payable; and
(ii) requires the Tenant to make payment within fourteen (14) calendar days from the date of the Notice; or
on any other grounds specified in this agreement as giving rise to a right of termination.
20.4 Termination for insolvency
Either party may terminate this agreement immediately by giving written Notice to the other party if an Insolvency Event occurs in relation to that other party.
20.5 Licensor’s rights on termination
On termination of this agreement for any reason the Licensor may:
(a) retain any money paid; and
(b) deactivate the Tenant’s ability to access or use the Licensed Software.
20.6 Obligations of Tenant on termination
On termination of this agreement for any reason:
(a) the Licence granted under this agreement immediately ceases and the Tenant must immediately cease using the Licensed Software in any manner whatsoever; and
(b) the Tenant must account to the Licensor and transfer to it any and all rights which the Tenant may have to the Licensed Software.
20.7 Return of Tenant Data
If the Tenant requests, and subject to the Tenant having discharged all of its obligations under this agreement, the Licensor shall, within one (1) month after termination or expiry of this agreement, provide the Tenant with a file containing the Tenant Data that the Licensor may have in its possession on termination of this agreement (excluding metadata).
20.8 No refund
Termination of this agreement for any reason will not entitle the Tenant to any refund for Fees paid nor affect the Tenant’s liability for any other fees or interest that are payable to the Licensor under this agreement or any other agreement prior to the date of termination.
20.9 Preservation of other rights
Nothing in this clause shall prejudice either party’s right to recover damages at law or exercise any other right or remedy.
Words used in this clause that are defined in the GST Law have the meaning given in that legislation.
21.2 Consideration is GST-exclusive
Unless otherwise specified, all amounts payable under this agreement are exclusive of GST and must be calculated without regard to GST.
21.3 GST payable on taxable supply
(a) If a supply made under this agreement is a taxable supply, the recipient of that taxable supply (Recipient) must, in addition to any other consideration, pay to the party making the taxable supply (Supplier) the amount of GST in respect of the supply.
(b) The Recipient will only be required to pay an amount of GST to the Supplier if and when the Supplier provides a valid tax invoice to the Recipient in respect of the taxable supply.
(c) If there is an adjustment to a taxable supply made under this agreement then the Supplier must provide an adjustment note to the Recipient.
(d) The amount of a party’s entitlement under this agreement to recovery or compensation for any of its costs, expenses or liabilities is reduced by the input tax credits to which that party is entitled in respect of those costs, expenses or liabilities.
22. Obligations of Invitee
(a) Any Invitee who is given access to the Software by the Tenant is subject to clauses 3 to 6, 10 to 18, and 20 of this Agreement, as though they were the Tenant referenced in that clause.
(b) An Invitee who is given access to the Software by the Tenant must acknowledge that they are bound by this Agreement.
23.1 Form of notice
(a) Any Notice will:
(i) be in writing in English;
(ii) be marked for the attention of the recipient party; and
(b) be given at the recipient’s Address for Notice by being:
(i) hand delivered;
(ii) sent by email; or
(iii) sent by prepaid mail within Australia
23.2 Giving of notice
(a) A Notice is validly given if:
(i) hand delivered, on the date of delivery;
(ii) sent by email, on the date shown by a printed “read receipt” generated by the sender’s computer; or
(iii) sent by prepaid mail within Australia, on the third day after posting.
(b) A Notice takes effect from the time it is given unless a later time is specified in it.
24.1 Governing law
This agreement is governed by and construed in accordance with the laws in the State of New South Wales and the parties irrevocably submit to the non-exclusive jurisdiction of the courts in that State and any court competent to hear appeals from those courts.
24.2 Licensor’s Rights
Any express statement of a right of the Licensor under this agreement is without prejudice to any other right of the Licensor expressly stated in this agreement or existing at law.
24.3 No merger and survival
A party’s right or obligation which is of a continuing nature or which is not fully satisfied and discharged on completion of any transaction contemplated by this agreement:
(a) does not merge on completion of that transaction;
(b) continues in favour of the party to which it is owed; and
(c) remains in full effect.
(a) No right under this agreement will be deemed to be waived except by Notice in writing signed by each party.
(b) A waiver made by the Licensor pursuant to sub-clause 24.4(a) will not prejudice its rights in respect of any subsequent breach of the Agreement by the Tenant.
24.5 Provisions severable
If any provision of this agreement is invalid, illegal or unenforceable in any respect the validity, legality and enforceability of the remaining provision will not be affected and such invalid, illegal or unenforceable provision is to be severed from this agreement.
No part of this agreement may be amended or modified unless reduced to writing making specific reference to this agreement and signed by the parties or their authorised representatives.
24.7 Entire agreement
This agreement sets out the entire agreement and understanding between the parties with respect to the subject matter of this agreement and supersedes all prior agreements, understandings and representations.
24.8 Relationship of parties
The relationship between the parties is that of principal and independent contractor. A party is not an agent, representative or partner of any other party by virtue of this agreement and neither party may represent itself as an agent, representative or partner of the other party in any circumstances.
Schedule 1 – Service Levels and Software Support Services
1. General Software Support Services
During the Term:
(a) The Licensor may provide to the Tenant corrections of substantial Defects in the Licensed Software. The Licensor may provide periodic Updates of the Licensed Software that may incorporate:
(i) corrections of any substantial Defects;
(ii) fixes of any minor bugs; and
(iii) at the sole discretion of the Licensor, enhancements to the Licensed Software.
(b) The Licensor will provide support, including remote access, during the support hours specified in clause 2 of this Schedule 1, to assist the Tenant in identifying any issues contained within the Licensed Software.
(c) All support requests will be co-ordinated with head office.
2. Service Response Times
The following table shows the Service Response times that are available to the Tenant subject to the service level paid for by the Tenant. All escalation times correspond with standard business hours during the Support Hours.
|Standard timeframe for response to support request
3. Support Hours
(a) Under the Licence Fee, the Licensor will provide access to Software Support Services during the following hours on Business Days (Support Hours):
|09:00 – 17:00 Australian Eastern Standard Time
(b) Any Software Support Services provided at the request of the Tenant outside the Support Hours may require payment of an additional charge payable to the Licensor and its prevailing applicable rates for extended support services from time to time.
4. On-site Support
(a) The Licensor will use its best endeavours to resolve any Critical Priority or Major Priority that are not resolved within one week of the time that the Tenant provides Notice thereof to the Licensor. There is otherwise no obligation by the Licensor to provide on-site support unless the Tenant specifically requests it and the Tenant agrees to pay the associated costs for same.
(b) Upon receipt of a written request from the Tenant, the Licensor will provide the Tenant on-site Software Support Services at a mutually agreed time and in such event where the Tenant requests on-site support in which case the Tenant agrees to pay the Licensor all reasonable costs associated with the provision of on-site support, including charges for the Licensor’s reasonable personnel, travel, lodging and miscellaneous expenses related to such on-site support.
5. Service Levels
The support levels described below and the applicable provisions are to be followed by the Licensor and Tenant personnel for the support of the Licensed Software. The provisions described below must be applied for any problem or issue escalated through the defined support levels. The activities identified are the minimum required, and may be supplemented by further actions during the course of the problem investigation in order to expedite a resolution.
(d) First-level Support: The Licensor will provide basic help desk services and this will typically include initial call handling, call logging, assignment of call priority (Critical, Major, Minor and Limited) and queue placement and escalation to second-level support as required. This level will also include initial problem diagnostic services for identifying problems and generic application faults, analysis and if possible problem resolution.
(e) Second-level Support: The Licensor will provide second-level support. Second-level Support will provide more detailed problem diagnostic services as well as any problem duplication for identifying complex problems and Licensed Software Defects that cannot be resolved by the first-level support. Second-level support includes the application of any Updates that the Tenant support is able to implement. Second-level support will also provide interface and escalation to third-level support as required.
(f) Third-level Support: The Licensor will engage a support specialist or third party, for product design problem analysis, and to formally escalate problems. Third-level Support will includes provision of reasonable levels of technical assistance to the Second-Level Support organisations and timely delivery of Updates, patches or hot fixes and associated User Documentation.
6. Service Request Process
(a) Following identification by the Licensor of a problem that cannot be resolved by the Second-level Support as described above, the Licensor will record details of the problem (including diagnostic information) in accordance with a list of reasonably required information agreed to between the Licensor and the Tenant, and forward this information to a support specialist or third party. This information will be logged by the Licensor in a “problem log” (Service Request).
(b) The Tenant will be given a Service Request number and will be provided with regular status and progress updates of Tenant-escalated problems. A Tenant representative will also be entitled to attend (in person or phone conference) the regular Licensor problem status and review meetings for Tenant Service Requests.
7. Service Request Classification
The Licensor defines four classifications of Service Requests. In order to classify a request, the Tenant’s technical contact will confirm with the Licensor the impact of the problem and recommend an appropriate classification. Where the Licensor and the Tenant disagree on the classification of a particular problem, the Tenant and the Licensor’s primary technical contacts will undertake to work on the problem based on the Tenant classification recommendation. In the case of a classification disagreement, review of the classification will occur as a follow-up activity, prior to the final closure of the Service Request.
(a) Critical Priority: Service Requests that have been verified by the Licensor as problems affecting critical business functions, which cause major functionality to affect service for the Tenant. There is no acceptable workaround.
(b) Major Priority: Service Requests that have been verified by the Licensor as problems affecting data corruption or prevents volumes of transactions from being processed or otherwise causes a major disruption to business operations, which cause major functionality to affect service for the Tenant. There is an acceptable workaround that allows the Tenant to restore service.
(c) Minor Priority: Service Requests that have been verified by the Licensor as causing particular features or functionality to be inoperative, but do not affect service for the Tenant. There may or may not be an acceptable Workaround.
(d) Routine: Service Requests that are verified by the Licensor as being cosmetic, minor or enhancements which will be considered for inclusion in future new releases or Updates.
8. Service Request Response Objectives
(a) The Licensor’s technical support will use its best endeavours to work on Critical Priority problems immediately to provide a resolution. The Tenant Technical Contact must be available so that the Licensor’s technical support can obtain information required to continue resolving the incident. If the primary technical contact is unavailable, the Licensor’s technical support will attempt to reach the secondary technical contact. If neither technical contact is reachable, a Critical Priority incident report may be classified as a Major Priority until technical contacts are available. The Licensor’s technical support will work with the designated technical contact until the Tenant has an acceptable workaround.
(b) The response time refers to the time that elapses from the time at which the Tenant logs a Service Request to the time at which the Licensor acknowledges and responds to the Service Request.
(c) All response and escalation times correspond with standard business hours.
(d) The Licensor may, if it is reasonable to do so and the Tenant does not require earlier rectification, elect to remedy Minor Priority or routine defects in the next:
(i) New Release, or Update; or
(ii) Patch of the applicable Licensed Software which may be supplied and installed at no additional cost to the Tenant.
(e) The Tenant may contact the Licensor at any interval for any problem to solicit update information. The time between the Licensor making the initial response to the Tenant and providing unsolicited updates, by email to the request for information or assistance is as follows:
(i) Critical: One (1) communication every Business Day; and
(ii) Major: One (1) communication every 3 Business Days.
(f) For issues classified as “Critical”, the Licensor will use all commercially reasonable efforts and resources at its disposal to ensure that the Licensed Software is restored to an operation status (workaround or fix), as soon as possible.
9. Access requirements
The Tenant agrees to provide the Licensor with reasonable access to its information technology systems and its personnel to enable the Licensor to perform its obligations in accordance with this agreement. Service Requests may be downgraded in priority if the Tenant does not provide the Licensor with remote access in a timely manner.