2. Restrictions on Licence
(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,
(x) do anything that would prejudice the Licensor’s right, title or interest in the Licensed Software.
2.2 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.
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.
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:
(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;
(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.
(b) Notwithstanding clause 6(a), each party is entitled to disclose the other party’s Confidential Information as follows:
(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
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.
7.1 Personal Information
(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;
(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:
(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
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
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;
(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;
(c) to the best of their knowledge, all information provided by the user, including any Customer Data, is:
(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
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 Customer’s requirements.
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
9.3 Implied terms
(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 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;
(A) damage to or loss or destruction of any property; or
(B) personal injury, illness or death to any person,
(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.
11. Assignment, Novation and Subcontracting
12.1 Termination by the Licensor
12.2 Return of Customer Data
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.
13.1 Governing law
13.2 Licensor’s Rights
13.3 No merger and survival
(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.
13.5 Provisions severable
14. Definitions and Interpretation
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;
(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);
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;
(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;
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 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);
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;
Template means template notices and communications for the contracting process;
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.
(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;
(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;