Terms and Conditions

InfoPoint
Terms of Use and Access for Invitees

In order to access and use the Systems Software Pty Ltd (Licensor) Licensed Software, you (Customer) must acknowledge and agree to be bound by, and comply with, both the following terms in respect of the Licensed Software and also the Licensor’s privacy policy which can be accessed here: https://infopoint.com.au/privacy-policy.

1. Licence

In consideration of the undertakings given in these Terms of Use, the Licensor grants you a non-exclusive, non-transferable licence to use the Licensed Software for the Purpose in accordance with these Terms of Use for the Term and in the Territory.

2. Restrictions on Licence

2.1 General

(a) The Customer may only use the Licensed Software as permitted by these Terms of Use.

(b) Other than as permitted by law or provided for in these Terms of Use, the Customer 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

which are contained in or affixed to the Licensed Software, User Documentation or any other Materials provided under these Terms of Use ; or

(x) do anything that would prejudice the Licensor’s right, title or interest in the Licensed Software.

2.2 Authorised Users

The Customer:

(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.

3. Supply of the Licensed Software and Services

3.1 User Documentation

(a) At the time of the grant of access to the Licensed Software, the Licensor will provide the Customer with access to the User Documentation as available on the Licensor’s website.

(b) The Licensor may from time to time give the Customer access to copies of any amended, revised or supplementary User Documentation during the Term.

(c) The Customer 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.

3.2 Back-up

The Customer 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.

3.3 Availability of Licensed Software and Services

(a) The Customer 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 Customer 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 Customer’s computer systems or data which arises in connection with the provision of the Licensed Software or the Services.

3.4 Maintenance of Licensed Software and Services

(a) The Customer 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 Customer with notice of the maintenance downtime, except when circumstances beyond the control of the Licensor prevent it from doing so.

4. Customer Data

4.1 Licence of Customer Data

(a) During the Term, the Licensor may collect, de-identify and aggregate the Customer Data collected by or stored in the Licensed Software or input into the Designated Operating Environment.

(b) The Customer grants to the Licensor an irrevocable, perpetual, transferrable, worldwide, non-exclusive license to use, reproduce and modify the Customer 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 Customer’s Confidential Information is disclosed in such Derivative Works; and

(iii) the Customer is not identified in or linked to the Derivative Works.

4.2 Granting access to Customer Data

The Customer will grant access to the Customer Data to the Licensor.

4.3 Attributes of the Customer Data

The Customer agrees and acknowledges that:

(a) it has sole responsibility for the form, completeness, accuracy, quality, integrity, timeliness and legal compliance of all the Customer 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 Customer Data.

4.4 The Customer’s warranties

The Customer warrants that:

(a) it either owns or has obtained the required licences or consents to use the Customer Data in accordance with these Terms of Use including by:

(i) providing the Customer Data to the Licensor; and

(ii) allowing the Licensor to:

(A) access, use and reproduce the Customer Data; and

(B) create data, information or reports as a derivative of the Customer Data; and

(b) the Customer Data complies with all relevant laws, including any relevant Privacy Law.

5. Intellectual Property Rights

(a) The Customer 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 Customer has no right, title or interest in the Licensed Software other than the rights as licensee under these Terms of Use; and

(iii) there is no transfer of title or ownership to the Customer 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 Customer learns that a third party is infringing the Intellectual Property Rights in the Licensed Software, it will promptly notify the Licensor in writing.

6. Confidentiality

(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 these Terms of Use or thereafter, except as specified in these Terms of Use.

(b) Notwithstanding clause 6(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 these Terms of Use and provided that such Confidential Information is disclosed subject to confidentiality;

(ii) as required by law; and

(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.

(i) destroy; or

(ii) return,

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.

7. Privacy

7.1 Personal Information

(a) Where a party discloses (Disclosing Party) any Personal Information to the other party (Receiving Party) under these Terms of Use, 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 these Terms of Use;

(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 7.1(a).

7.2 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 7.2, Eligible Data Breach has the meaning set out in section 26WE of the Privacy Act 1998 (Cth).

8. Licensed Software Warranties

8.1 Licensor Warranties

The Licensor warrants to the Customer that:

(a) it is entitled to grant the Licence in these Terms of Use and that the use of the Licensed Software as contemplated by these Terms of Use 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 these Terms of Use), or engage in any other activity which would interfere with the rights granted to the Customer under these Terms of Use.

8.2 Customer Warranties

(a) The Customer warrants that in using the Licensed Software, the Customer 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 these Terms of Use or upon an earlier written request by the Licensor which is not inconsistent with these Terms of Use.

(b) The Customer warrants that it has not relied on any representation made by the Licensor other than those representations stated expressly in these Terms of Use, the Schedules and any annexures to these Terms of Use.

8.3 User Warranties

Each person granted authorisation to use Licensed Software in clause 2.2 warrants that, in using the Licensed Software:

(a) they have obtained the necessary authorisations and consents from the Customer to access and use the Licensed Software;

(b) they either own or have obtained the required authorisations, licences or consents to use the Customer Data in accordance with these Terms of Use including by:

(i) providing the Customer Data to the Licensor; and

(ii) allowing the Licensor to:

(A) access, use and reproduce the Customer Data; and

(B) create data, information or reports as a derivative of the Customer Data;

(i) accurate, complete and up-to-date; and

(ii) complies with all relevant laws, including any relevant Privacy Law;

(d) they will 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;

(e) they will comply with the directions of the Licensor in relation to the use of the Licensed Software; and

(f) they will immediately cease to use the Licensed Software in every manner whatsoever upon expiration or termination of these Terms of Use or upon an earlier written request by the Licensor which is not inconsistent with these Terms of Use.

8.4 Exclusions

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;

(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 Customer’s requirements.

9. Liability

9.1 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 Customer or any third party using the information supplied in the Reports.

9.2 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 these Terms of Use, 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 these Terms of Use.

9.3 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 these Terms of Use 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.

10. Indemnity

(a) Subject to this clause and clause 9.3(a), the Customer 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 Customer or its Personnel of any warranty;

(ii) any negligent, reckless or intentional act or omission or wilful misconduct of the Customer or its Personnel;

(iii) the:

(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 Customer’s obligations under these Terms of Use;

(iv)any breach of law by the Customer or its Personnel; and

(v) any Claim, arising out of or in connection with the use by the Customer 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 Customer’s liability under clause 10(a) will be reduced proportionally to the extent that the liability is caused or contributed to by the Licensor.

(c) Each indemnity in these Terms of Use is a continuing obligation separate and independent from the Customer’s other obligations and survives termination of these Terms of Use.

(d) It is not necessary for the Licensor to incur expense or make payment before enforcing a right of indemnity conferred by these Terms of Use.

11. Assignment, Novation and Subcontracting

11.1 Assignment

(a) The Licence is personal to the Customer who does not have the right to assign in whole or in part its rights or obligations under these Terms of Use without the prior written consent of the Licensor.

(b) The Licensor may assign or novate its interests or obligations in or under these Terms of Use by Notice in writing to the Customer.

11.2 Subcontracting

(a) The Customer may not subcontract its obligations under these Terms of Use without the prior written consent of the Licensor.

(b) If the Licensor consents to use of any subcontractor, the Customer acknowledges that the Customer remains primarily liable to the Licensor under these Terms of Use.

11.3 Security

The Customer must not create or allow to come into existence a security over the Customer’s interest in these Terms of Use except with the Licensor’s prior written approval.

12. Termination

12.1 Termination by the Licensor

The Licensor may immediately terminate these Terms of Use if the Customer is in breach of these Terms of Use or for any other reasonable requirement.

12.2 Return of Customer Data

If the Customer requests, and subject to the Customer having discharged all of its obligations under these Terms of Use, the Licensor shall, within one (1) month after termination or expiry of these Terms of Use, provide the Customer with a file containing the Customer Data that the Licensor may have in its possession on termination of these Terms of Use (excluding metadata).

12.3 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.

13. GENERAL

13.1 Governing law

These Terms of Use are 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.

13.2 Licensor’s Rights

Any express statement of a right of the Licensor under these Terms of Use is without prejudice to any other right of the Licensor expressly stated in these Terms of Use or existing at law.

13.3 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 these Terms of Use:

(a) does not merge on completion of that transaction;

(b) continues in favour of the party to which it is owed; and

13.4 Waiver

(a) No right under these Terms of Use 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 15.4(a) will not prejudice its rights in respect of any subsequent breach of these Terms of Use by the Customer.

13.5 Provisions severable

If any provision of these Terms of Use 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 these Terms of Use.

13.6 Variation

No part of these Terms of Use may be amended or modified unless reduced to writing making specific reference to these Terms of Use and signed by the parties or their authorised representatives.

14. Definitions and Interpretation

14.1 Definitions

In these Terms of Use, unless the context clearly indicates otherwise:

Address for Notices means each party’s registered company address, or any new address notified in writing by a party to the other party as its new Address for Notices;

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;

Confidential Information means, the terms of these Terms of Use 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;

(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);

Customer Data means data owned or supplied by the Customer to which the Licensor is provided access pursuant to these Terms of Use, or data which may otherwise be generated, compiled, arranged or developed using the Licensed Software by either party to these Terms of Use, and includes all information inputted by the Customer into the Licensed Software to enable the Licensed Software to generate the Reports;

Defect means a fault, error, failure, degradation, deficiency or malfunction that causes the relevant Product not to meet the requirements under these Terms of Use;

Derivative Works has the meaning given to that term in clause 4.1(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;

(d) Opera;

(e) Chrome for Android; or

(f) Microsoft Edge.

Disclosing Party has the meaning given to that term in clause 7.1(a);

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 Customer in respect of the Licensed Software under these Terms of Use;

Licensed Software means the cloud-based service provided by the Licensor, access to which allows the Customer to use and access the functionality of the cloud-based service, including store Customer Data and data provided by others in relation to the Purpose, run analysis on the Customer Data and data provided by others in relation to the Purpose, produce Templates and documentation and generate Reports;

Material means any document or other thing in which Intellectual Property Rights exist, including the Products;

Notice means a notice, demand, approval, consent, request or other communication in relation to these Terms of Use;

Notice of Dispute has the meaning given to that term in clause 12.2;

Personnel means any officers, employees, agents, representatives and subcontractors of the Customer 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 these Terms of Use), 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 Customer may use the Licensed Software, being:

(a) as a collaborative project management and document management software platform;

(a) to upload Customer Data to run analysis on the Customer Data and generate and distribute Reports; and

(b) 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 7.1(a);

Reports means the output reports which are generated by the Licensed Software and based on analysis of the Customer Data;

Services means the services provided by the Licensor to the Customer from time to time under these Terms of Use;

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 Customer directly or indirectly by the Licensor for the purposes of these Terms of Use and which describes the operation and functionality of the Licensed Software;

Template means template notices and communications for the contracting process;

Term means the period commencing on the date of first access or use of the Licensed Software by the Customer or their Personnel and continuing until termination of these Terms of Use;

Territory means Australia;

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.

14.2 Interpretation

In these Terms of Use, 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;

(d) a reference to a recital, clause or schedule is a reference to a recital, clause or schedule of these Terms of Use;

(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;

(k) the headings in these Terms of Use are not to affect its interpretation.

InfoPoint Terms of Use and Access for Invitees