(a)
LUPARG Pty Ltd ACN 625 479 530 trading as
ContinuSys (we/us/our) provides the ContinuSys Solution.
(b)
We have agreed to grant you Access to the
ContinuSys Solution and to provide you with the Services on the terms set out
in this Agreement.
This Agreement commences on
the Acceptance Date and continues until terminated in accordance with clause 11.
3.1
Acceptance
(a)
The terms of this Agreement are accepted by you
where you:
(i)
create a ContinuSys Account;
(ii)
create an account through any of the
Applications that we provide that enable you to Access all or part of the
ContinuSys Solution;
(iii)
gain Access to the ContinuSys Solution after
being given a copy of this Agreement; or
(iv)
otherwise indicate to us, whether directly or
indirectly, that you accept this Agreement.
(b)
Any person that accepts this Agreement on your
behalf, represents and warrants to us that:
(i)
they are duly authorised to accept this
Agreement and to bind you to this Agreement; and
(ii)
to the extent they purport to accept this
Agreement on your behalf and are not duly authorised to do so, that person will
be liable in their personal capacity and will indemnify us against any loss,
damage, expense or cost suffered as a result of such purported acceptance.
4.1
Licence
(a)
Subject to 4.1(b), we grant you and your Authorised
Users with Access to the ContinuSys Solution on a worldwide, revocable,
non-exclusive, non-sublicensable and non-transferable basis during the Term (Licence).
(b)
The Licence is provided on the following
conditions:
(i)
you must, and must also procure that your
Authorised Users:
(A)
only Use the ContinuSys Solution in accordance
with the terms of this Agreement;
(B)
only use the ContinuSys Solution in the manner
it was expressly intended;
(C)
comply with all reasonable and lawful directions
that we may give from time to time with respect to your Use of the ContinuSys
Solution;
(D)
only Use the ContinuSys Solution for your own
internal business purposes;
(E)
protect all our Intellectual Property Rights in
the ContinuSys Solution, the Features and the User Documentation from
unauthorised access, use or damage;
(F)
maintain the security of:
(1)
all the ContinuSys Solution login credentials;
and
(2)
all Data that is within the ContinuSys Solution;
and
(G)
cooperate with us in remediation of any security
breach, unauthorised use or misuse of the ContinuSys Solution and promptly
report all such matters that you become aware of to us; and
(ii)
you must, and must also procure that your
Authorised Users do not:
(A)
become involved in any business activity that is
unlawful or that we reasonably consider would be likely to adversely impact
upon our reputation;
(B)
Upload any Harmful Code to the ContinuSys
Solution nor transmit any Harmful Code within it;
(C)
allow or engage any third party to conduct
development work on the ContinuSys Solution or any Features without first
obtaining our written consent;
(D)
interfere or disrupt the operation of the
ContinuSys Solution nor attempt to do so;
(E)
grant Access to the ContinuSys Solution to
anyone other than Authorised Users, unless we provide you with our express
written consent; and
(F)
subject to any right under, sections 47B(3),
47C, 47D, 47E or 47F of the Copyright Act, either directly or indirectly,
modify, attempt to decompile, cross compile, disassemble, reverse engineer, or
use any other means to discover the source code, object code or underlying
structure, ideas, know-how or algorithms relevant to the ContinuSys Solution or
the Services.
4.2
Services
(a)
We will provide the Services to you in a
professional manner with due care, skill and diligence.
(b)
You may at any time request we provide
additional services. Any fees associated with the provision of additional or
bespoke services will be advised to you following our receipt of your written
request. For the avoidance of doubt, we are under no obligation to provide any
such services and may agree or refuse to do so at our sole discretion.
4.3
Features
(a)
We will provide you with a list of available
Features and an indication of the cost of activating them (if any). If you
purchase or install a Feature you are granted a licence to it on the terms
contained in sub-clause 4.1.
(b)
From time to time there may be Features that we
require you to obtain in order to access the full functionality of the
ContinuSys Solution.
4.4
Updates
(a)
We may unilaterally, from time to time:
(i)
update the ContinuSys Solution or a part of it;
and
(ii)
make modifications to the Services, the
ContinuSys Solution and the Features (provided such variations do not limit
your rights or enjoyment),
we will provide
Notice of any material changes made, prior to the changes taking effect.
(b)
We will provide you with Notice of New Services
created by changes set out in subclause (a). Once the New Services are available,
they will be governed by the terms of this Agreement.
(c)
As a consequence of clause 4.4(a) we may need to make reasonable
amendments to the provisions of this Agreement. We reserve the right to
unilaterally make such changes, along with other minor alterations that do not
adversely affect your rights and obligations under this Agreement. Any change
made pursuant to this clause will apply immediately upon Notice of the
variation being provided to you.
4.5
Receipt of raw data
(a)
The ContinuSys Solution includes a range of
Default Connectors that will enable the movement of raw data from various
external data sources into the ContinuSys Solution.
(b)
Where you require raw data movement to the
ContinuSys Solution from sources that are not compatible with the Default
Connectors, you may request that we provide you with assistance to move such
raw data. Where it is reasonable and practicable for us to do so, we will
provide such assistance. If there are any additional fees associated with us
providing assistance, we will notify you prior to providing such assistance.
4.6
Training and User Documentation
(a)
If you or your Authorised Users require training
in the operation and Use of the ContinuSys Solution, you may request that we
provide you with such training. Training will be provided at our sole discretion
and we will notify you of any costs associated with providing any training
services.
(b)
Where we have provided User Documentation to
assist you regarding your Use of the ContinuSys Solution, you agree that you
will comply with the practical and technical information as set out in the User
Documentation.
4.7
Support Service
levels
(a)
We will use our best endeavours to provide
Support Services to you within 10 Business Days of a request being made.
Support Services provided under this Agreement do not include any dealing with
or responding to issues related to your Systems.
(b)
You may at any time request that we provide
additional maintenance and software support services (Additional Support
Services). The fees for Additional Support Services will be provided by us
upon receipt of a written request from you and will be provided pursuant to our
then current service level agreement.
(c)
For the avoidance of doubt, we are under no
obligation to provide Additional Support Services.
4.8
Back-ups
(a)
It is your responsibility to retain copies of
and backup all Data that you upload into the ContinuSys Solution.
(b)
You may request that we provide backup services
in addition to the Services that we provide under this Agreement. Any such
backup services will be the subject of a separate agreement between us.
4.9
Development
(a)
You may at any time request that we develop New
Services, third party integrations or tailored variations to the ContinuSys
Solution (Development Request).
(b)
We may in our sole discretion agree to a
Development Request. Where we agree to the Development Request, we will provide
a scope of work and an indication of fees before commencing.
(c)
You acknowledge that any work that we undertake
pursuant to a Development Request will be an additional cost and will be
governed by a separate agreement.
5.
Client Responsibilities
5.1
Co-operation
You must provide us with all
information and co-operation reasonably necessary to enable us to perform our obligations
under this Agreement.
5.2
Account establishment
(a)
You are responsible for ensuring that you and
any of your Authorised Users have appropriate in-platform authorisations and
that all user accounts are properly created (Account Establishment).
(b)
You acknowledge and agree that the Services
provided by us require proper Account Establishment. If
this does not occur:
(i)
the Services may not be able to be provided, or
if they are provided the Service deliverables may be adversely affected;
(ii)
your Authorised Users may be required to
re-establish their accounts before Services are provided; and
(iii)
we will not be liable to you for any Loss
suffered due to the Services not being provided or the Service deliverables
being adversely affected.
5.3
Customisation
(a)
We may provide Authorised Users with the
capability to make personalisation’s to their instance of the ContinuSys
Solution which may impact upon the Services.
(b)
Where we have provided Authorised Users with the
capacity to personalise their instance of the ContinuSys Solution, you
acknowledge that you are solely responsible for implementing your own controls
and record keeping relating to the changes Authorised Users have made to the
ContinuSys Solution and the Services.
5.4
Your Data
(a)
You grant us a licence to use any Data that you
provide for any purpose related to our obligations under this Agreement.
(b)
Title to the Data you have provided to us remains
with you, and we do not obtain ownership of any Intellectual Property Rights in
it. However, you grant to us a perpetual, non-revocable, royalty free license
to use any Data that you have provided for the purposes of us fulfilling our
obligations under this Agreement, improving and updating our Services, internal
research and analytical purposes, as well as any other legitimate business
purpose. For the avoidance of doubt, this licence is intended to survive the
termination of this Agreement.
(c)
Subject to the other provisions of this clause 5.4, the Data that you have provided that is
within the ContinuSys Solution will only be accessible by you and your
Authorised Users.
5.5
Systems
You are
responsible for obtaining and maintaining all your Systems.
5.6
Experienced Users
You must:
(a)
ensure enough Experienced
Users have been appointed so that an Experienced User will be available for
us to contact at all reasonable times;
(b)
provide your Experienced Users with authority to
follow our instructions relating to the delivery of Support Services;
(c)
require your Experienced Users to:
(i)
use all reasonable endeavours to troubleshoot
and solve problems with the ContinuSys Solution before requesting we provide
Support Services; and
(ii)
provide us with cooperation and information that
we reasonably require to provide Support Services; and
(d)
ensure that only Experience Users contact us
regarding issues with the ContinuSys Solution.
5.7
Your warranties
You represent,
warrant and undertake that:
(a)
you own or have an unrestricted right to use all
Data that you provide to us, including the right to grant us the licence to it
under clause 5.4;
(b)
all Data that you provide to us and Upload to
the ContinuSys Solution is compliant with applicable privacy and data
protection laws;
(c)
you have the capacity and authority to enter
into and to perform this Agreement; and
(d)
this Agreement is accepted by a duly authorised
legal representative of yours and legally binds you.
5.8
Your acknowledgements
You acknowledge and agree that:
(a)
computer and telecommunications services are not
fault free and occasional periods of downtime may occur;
(b)
we may publish your branding and testimonials on
any of our promotional material for the purpose of representing that you are a
client of ours, provided we comply with our confidentiality obligations
contained in clause 9; and
(c)
we may suspend your access to the ContinuSys
Solution or any part of it, including that of any Authorised User, without any
liability or notice to you immediately where:
(i)
a Claim arises alleging that the continued
provision of the ContinuSys Solution or any part of it infringes the rights of
any person which puts us at risk of exposure to Loss;
(ii)
we consider your or an Authorised User has or is
likely to breach a provision of this Agreement; or
(iii)
any Fees that are due and payable to us in
accordance with the terms of this Agreement have not been paid as and when they
fall due.
6.1
General
We will:
(a)
comply with the Privacy Act 1988 (Cth)
and any other applicable privacy Laws in relation to your Data;
(b)
provide you and your Authorised Users with
reasonable notice of scheduled maintenance to the ContinuSys Solution that may
impact their Use of the ContinuSys Solution;
(c)
only access your Systems for purposes approved
in advance by you; and
(d)
ensure that the ContinuSys Solution, the
Services and the Features will be provided in accordance with:
(i)
this Agreement; and
(ii)
applicable Laws.
6.2
Data
When processing any Data that you
provide, we must:
(a)
treat your Data as Confidential Information;
(b)
implement and maintain appropriate and industry
best practice technical and organisational measures to protect the Data from
any misuse, loss, interference unauthorised access, modification or disclosure;
(c)
if any Data you provide is lost, destroyed,
corrupted or altered in connection with the provision of the Services, provide
reasonable assistance to you with restoring that Data;
(d)
notify you as soon as reasonably possible if we
become aware of any suspected or actual misuse or loss of, interference with or
unauthorised access to, modification of or disclosure of your Data (a Data
Breach) or if we are required by Law to disclose any of your Data for any
reason;
(e)
reasonably assist you with respect to remedying
or addressing a Data Breach;
(f)
inform and co-operate with you in the event of
any risk regarding the security of your Data; and
(g)
ensure that our Personnel who have access to
your Data comply and agree to comply with this clause 6.2 to the same extent as us.
7.
Intellectual property rights
7.1
General
(a)
Each of us retains all right, title and interest
in and to its pre-existing Intellectual Property Rights.
(b)
We own all Intellectual Property Rights in the
ContinuSys Solution, the Services and the Features (except to the extent that
we use any Features under licence) and nothing in this Agreement affects the
Moral Rights in them.
(c)
For the avoidance of doubt nothing in this
Agreement prohibits us from using our Intellectual Property Rights to provide
the ContinuSys Solution, our Services and the Features to third parties, even
if they are the same or substantially the same as those provided to you.
7.2
Improvements
You acknowledge and agree that all Intellectual Property Rights in
the variations, additions and alterations (Improvements) to the ContinuSys Solution, its Features and the Services are owned by
us, even where suggested or created by you or by any of your Representatives.
8.
Fees, Charges and Payments
8.1
Fees
(a)
In consideration of us granting you a Licence to
Access the ContinuSys Solution and delivering the Services, you must pay to us
the Fees.
(b)
At the time of creating your ContinuSys Account, we may require you to
nominate a payment method that is acceptable to our then current payment
processor, for example, we may request:
(i)
a visa, mastercard or american express credit card;
(ii)
a bank account we can direct debit from;
(iii)
a paypal account we can charge; or
(iv)
any other payment method we publish as acceptable from time to time
(altogether Billing Information).
(c)
Your Billing Information will be provided to and retained by the relevant
third party payment processor that we are using from time to time.
(d)
Any Fees that are due and owing to us will be charged automatically
using the Billing Information linked to your ContinuSys Account.
(e)
You acknowledge and agree that we may reasonably
vary the Fees from time to time by providing you with written Notice of the
intended Fee revision. Where we vary the Fees, we
will provide you with at least thirty (30) days’ Notice of the variation before
it takes effect.
8.2
Expenses
Any costs and reasonable out-of-pocket
expenses which are necessary to provide Access to the Software or to deliver
the Services (Expenses) will be paid or reimbursed (as the case may be)
by you where we have received prior written approval from you. We will upon
request submit evidence verifying the Expenses that have been incurred.
8.3
Declined Payment
If you fail to
make payment of all amounts rightfully due and owing to us in accordance with
this Agreement within the time required, we may:
(a)
immediately suspend both your and your Authorised
Users’ Access to the ContinuSys Solution;
(b)
charge interest on the overdue amount at the
Default Rate as from the first day that payment is overdue; and
(c)
charge you for all costs and expenses that we
incur in recovering outstanding Fees from you, including legal fees (on a
solicitor and own client basis) and court costs, or Expenses due to be
reimbursed, which you must pay upon demand.
9.
Authorised Representatives
9.1
Appointment
(a)
You must appoint an Authorised Representative
for the Term.
(b)
The Authorised Representative will be
responsible for the oversight of this Agreement (Representative’s Purpose).
(c)
You must ensure your Authorised Representative
co-operates in a timely manner with any request we make in respect of anything
related to this Agreement.
9.2
Authority
You:
(a)
warrant and agree that the Authorised
Representative has full authority to act on your behalf in any way relating to
the Representative’s Purpose;
(b)
acknowledge and agree that we may rely on any
written representation, direction or communication made by the Authorised
Representative that relates to the Representative’s Purpose, as if the
Authorised Representative were you; and
(c)
must release and hold us harmless from relying
upon or following any such direction or representation.
10.
Confidentiality and
restrictions
10.1
Recipient must keep Confidential Information confidential
Each
party must:
(a)
keep confidential all Confidential Information;
(b)
only use Confidential Information for the
purpose of providing or receiving (as the case may be) the Services; and
(c)
procure that its Personnel comply with
sub-clauses (a) and (b).
10.2
Disclosure exceptions
The obligations in clause 10.1 do not apply:
(a)
to the extent necessary to enable a party to
make any disclosure required by Law;
(b)
to the extent that we are disclosing
Confidential Information within our corporate group. However, any recipient
entity within our corporate group must comply with the same confidentiality
obligations in respect of such information as contained in this Agreement;
(c)
to the extent that we are required to use any
Confidential Information in the pursuance of our legitimate business purposes,
including evaluating or engaging in any business transaction (for example a
sale, merger, restructure or acquisition);
(d)
to the extent necessary to enable a party to
perform its obligations under this Agreement;
(e)
where disclosure is required:
(i)
to the extent necessary to take professional
(legal or financial) advice; and
(ii)
for any quality assurance or insurance purposes, provided the party receiving the information owes an obligation of confidence at least as strict as the Recipient owes to the Discloser.
(f)
to any disclosure agreed in writing between the
parties; or
(g)
in respect of any portion of the Confidential
Information which has entered the public domain other than as a result of a
breach of this Agreement.
10.3
Restrictions
The parties to one another to not during this Agreement or for a period of 12
months after it is terminated or expires:
(a)
solicit, canvass, induce or encourage any person
who was at any time during the term of this Agreement an employee, a director,
contractor or agent of the other party to leave the other party’s engagement,
employment or agency; or
(b)
do anything that would or would be likely to interfere
with the relationship between the other party’s clients, customers,
contractors, employees, partners or suppliers.
10.4
Acknowledgement of injunctive relief
Each party acknowledges that a breach
of this clause 10 may cause the
other party irreparable damage for which monetary compensation may not be an
adequate remedy. Accordingly, in addition to other remedies that may be
available, each party may seek and obtain injunctive relief against such a
breach or threatened breach.
11.1
Termination by Notice
(a)
Either party may terminate this Agreement by
providing thirty (30) days’ Notice of its intention to terminate to the other
party.
(b)
If a party provides Notice in accordance with
clause 11.1(a), the Agreement
will terminate upon the expiry of the then current billing period.
11.2
Termination for breach
Either party
may, without prejudice to its other rights or remedies, terminate this
Agreement with immediate effect by written notice to the other party, in the
event of:
(a)
any material breach of the Agreement by the
other party which is not remedied within 30 days after the service on the party
in default of a written Notice specifying the nature of the breach and
requiring that the same be remedied; or
(b)
the other party becoming Insolvent.
11.3
Effect of Agreement
ending
Upon
termination or expiry of this Agreement:
(a)
you must pay all outstanding Fees, Expenses and
other charges due to us under this Agreement up to the date of termination;
(b)
each party must, subject to clause 10.2, destroy the other party’s Confidential
Information received under this Agreement and certify such destruction in
writing. However, for the avoidance of doubt, this does not include any Data
that we are entitled or required to retain pursuant to the terms of this
Agreement; and
(c)
any accrued rights or liabilities of either
party or any provision of this Agreement which is expressly or by implication
intended to come into or continue in force on or after such termination will
not be affected.
12.
Indemnity and
liability
12.1
Your indemnity
You agree to
indemnify us and to keep us indemnified against any Loss that may be incurred
by us arising from or in connection with (directly or indirectly):
(a)
any breach or default by you or your Authorised
Users of this Agreement (including any breach of warranty);
(b)
a negligent act or omission by you or your
Authorised Users;
(c)
your or your Authorised Users’ breach of a third
party contract or infringement of a third party’s rights;
(d)
your failure or the failure of any of your
Authorised Users to comply with any Law;
(e)
our reliance upon or following any direction
from, or representation made by, your Authorised Representative; or
(f)
any Claim made against us by any third party because
of an act or omission by you or resulting in any way from the uploading of your
Data to the ContinuSys Solution, or the obtaining of Data by the ContinuSys
Solution at your direction.
12.2
Our indemnity
(a)
Subject to sub clause 12.2(b) we will indemnify you with respect to
any Loss suffered because of any Claim made against you by a third party
alleging that the ContinuSys Solution or the Services infringe the Intellectual
Property Rights of that third party.
(b)
We will not be liable to you under sub clause 12.2(a) if:
(i)
you do not notify us of the other person’s Claim
within 10 Business Days after becoming aware of it;
(ii)
our ability to defend the Claim has been
prejudiced by your non-compliance with any of your obligations under this
Agreement;
(iii)
you do not give us reasonable assistance (based
on the circumstances) in defending the Claim; or
(iv)
you do not permit us to have control of the
defence of the Claim and all related settlement negotiations.
12.3
Exclusion of consequential
loss
To the maximum
extent permitted by Law, we will not be liable for any Consequential Loss
arising in connection with this Agreement, the delivery of our Services or the
use of the ContinuSys Solution even if we were appraised of the likelihood of
such loss or damage occurring.
12.4
Limit of liability
(a)
Except as expressly provided by this Agreement,
the ContinuSys Solution is provided on an “as is” basis without any
representation, warranty or guarantee as to quality, condition or fitness for
purpose and we do not warrant that the ContinuSys Solution will be free of
defect, uninterrupted, accurate, complete, current, stable, bug free, error
free or available at any time in respect of its operation.
(b)
Except in relation to liability for an
infringement of confidentiality or Intellectual Property Rights, our liability
in damages in respect of any act or omission of us in connection with our
obligations under this Agreement will not exceed the net payment received by us
from you in the immediately preceding 12 months from when the cause of action
arose.
(c)
Our liability for any Loss caused by our
negligence will be reduced proportionately to the extent that your acts or
omissions have contributed to such Loss or damage.
(d)
We have no responsibility or liability
whatsoever where you have suffered Loss as result of:
(i)
any Data being lost, destroyed or damaged by the
ContinuSys Solution or the Host;
(ii)
your reliance on any Data as accurate and
correct; or
(iii)
a failure in the ContinuSys Solution or in the
delivery of our Services caused as a result of any third-party hardware or
software issue.
12.5
Exclusion of other Terms
(a)
Subject to clause 12.5(b), to the maximum extent permitted by
Law, any statutory condition, guarantee or warranty which would otherwise apply
to or be implied in this Agreement is hereby excluded.
(b)
Liability for breach of a guarantee conferred by
the Australian Consumer Law (other than those conferred by ss 51 to 53 of the
Australian Consumer Law) is limited (at our election) to us providing the Services
again or the payment of the cost of having the Services supplied again.
Any notices given under or in connection
with this Agreement:
(a)
must be in legible writing and in English;
(b)
must be either:
(i)
addressed to a party’s contact address as specified in this Agreement or as otherwise notified by a party to
the other party from time to time; or
(ii)
in our case, sent to you or your Authorised
Representative by internal mail or notification within the ContinuSys Solution;
(c)
must be:
(i)
delivered to that party’s address;
(ii)
sent by trackable post to that party’s address;
(iii)
issued via the ContinuSys Solution to the
Authorised Representative; or
(iv)
sent by email to that party’s email address;
(d)
will be deemed to be received by the addressee:
(i)
if delivered by hand, at the time of delivery;
(ii)
if sent by post, on the day of delivery;
(iii)
if sent via the ContinuSys Solution, at the time
the message was sent; or
(iv)
if sent by email, at the time that would be the
time of receipt under the Electronic Transactions Act 1999 (Cth).
(a)
If a dispute arises out of or relates to this
Agreement (Dispute), except to the extent it relates to your obligation
to make payment to us of any Fees or Expenses, a party to the Agreement may not
commence any court or arbitration proceedings relating to the Dispute unless it
has complied with this clause, except where the party seeks urgent
interlocutory relief.
(b)
A party claiming that a Dispute has arisen must
give a Notice (Dispute Notice) to the other party or parties to this
Agreement specifying the nature of the Dispute. The parties must then negotiate
in good faith to resolve the Dispute expeditiously using informal dispute
resolution techniques such as mediation, expert evaluation or determination or
similar techniques agreed to by them.
(c)
If the parties do not resolve the Dispute within
fourteen (14) days of receipt of the Dispute Notice (or such further period as
agreed in writing by them) any party to the Dispute may refer the Dispute to
mediation by a mediator nominated by the President or the nominee of the
President for the time being of the Queensland Law Society Incorporated.
(d)
Each party must bear its own costs in connection
with resolving the Dispute and the Parties must bear equally the costs of any
mediator engaged.
(e)
Any information or documents disclosed by a
party under this clause must be kept confidential and may not be used except to
attempt to resolve the dispute.
15.1
Essential terms
Clauses 4.1, 5, 7, 8, 10 and 12are essential terms of this Agreement.
15.2
Amendments
Unless
otherwise provided in this Agreement, this Agreement may only be varied by a
further written agreement accepted by or on behalf of each of the parties.
15.3
Force majeure
Neither party will be liable for any
delay or failure to perform its obligations pursuant to this Agreement, except
for an obligation to make a payment, if such delay is due to Force Majeure. If
a delay or failure of a party to perform its obligations is caused or
anticipated due to Force Majeure, the performance of that party’s obligations
will be suspended. If a delay or failure by a party to perform its obligations
due to Force Majeure exceeds thirty (30) days, either party may immediately
terminate this Agreement on providing Notice to the other party.
15.4
Assignment
(a)
We may, upon Notice in writing to you, assign or
otherwise transfer the benefit of all or any part of this Agreement to any
other person or entity.
(b)
Neither any rights, benefits or liabilities
relating to this Agreement may be assigned by you without our prior consent,
which will not be unreasonably withheld.
15.5
Consents
Unless this
Agreement expressly states otherwise, a party may in its absolute discretion,
give conditionally or unconditionally or withhold, any consent under this
Agreement. To be effective any consent under this Agreement must be in
writing.
15.6
Costs
Each
party will pay their respective costs and expenses of in connection with the
negotiation, preparation, execution, and performance of this Agreement.
15.7
Entire Agreement
This Agreement
contains the entire agreement between the parties about its subject matter.
Any previous understanding, agreement, representation or warranty relating to
that subject matter is replaced by this Agreement and has no further effect.
You warrant that you have not relied on any representation made by us which has
not been stated expressly in this Agreement.
15.8
Further acts
Each party must
promptly do all further acts and execute and deliver all further documents
required by law or reasonably requested by another party to give effect to this
Agreement.
15.9
Jurisdiction
This Agreement is governed by
the law in force in the State of Queensland Australia and each party submits to
the non-exclusive jurisdiction of the courts of Queensland and the courts
competent to determine appeals from those courts, in relation to any
proceedings that may be brought at any time relating to this Agreement.
15.10
No Merger
No right or obligation of any
party will merge on completion of any transaction contemplated by this
Agreement.
15.11
Severability
Any provision of this
Agreement that is illegal, void or unenforceable will be severed without
prejudice to the balance of the provisions of this Agreement which shall remain
in force.
15.12
Waiver
(a)
Failure to exercise or enforce or a delay in
exercising or enforcing or the partial exercise or enforcement of any right,
power or remedy provided by law or under this Agreement by any party will not
in any way preclude, or operate as a waiver of, any exercise or enforcement, or
further exercise or enforcement of that or any other right, power or remedy
provided by law or under this Agreement.
(b)
Any waiver or consent given by any party under
this Agreement will only be effective and binding on that party if it is given
or confirmed in writing by that party and no waiver of a breach of any term of
this Agreement will operate as a waiver of another breach of that term or of a
breach of any other term of this Agreement.
16.
Definitions and Interpretation
16.1
Definitions
In this Agreement:
Acceptance Date
means the date that acceptance occurs under clause 3.1.
Access means to
make a fully functioning version available for Use.
Account Establishment has the meaning given in sub clause 5.2(a).
Account Data
means information and material captured as part of Account Establishment on
each of your Authorised Users.
Activity Data
means all data that relates to Authorised Users including restriction and
access rights, user details (personal information) and communication data.
Agreement means
this document and includes any annexures, schedules and appendixes to it.
Applications mean
the individual software applications that are offered as part of the ContinuSys
Solution, which include C-IBMS, GAT, C-PEOPLE , C-ASSET, C-FINANCE, C-TIME,
C-WORK, C-EFSS, C-BACK, C-GRC, C-BCM, C-AUDIT, C-ASK, C-BPM, C-DASH, C-LOYAL,
C-MAKE and any other additional application that we make available from time to
time.
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010
(Cth).
Authorised Users
means any user of the ContinuSys Solution that you have provided with authority
to Use the ContinuSys Solution in accordance with this Agreement.
Authorised Representative means the person that you nominate to us that has the authority
referred to in clause 9.2 or,
if no person has been nominated, the individual that accepts and agrees to be
bound by the terms of this Agreement.
Business Day
means a day on which banks are open for business excluding Saturdays, Sundays
and public holidays in Australia.
Claim includes a
demand, claim, action, dispute or proceeding made or brought by or against the
person, however arising and whether present, unascertained, immediate, future
or contingent.
Consequential Loss
means indirect economic loss, loss of income or profit, loss or damages
resulting from wasted management time, damage to goodwill or business
reputation, loss of contract, loss of data, liability under other agreements or
to third parties, loss of opportunity or any other special, indirect, remote or
punitive loss or damage.
ContinuSys Account means the user account that you create in order to enable you to
access the ContinuSys Solution.
ContinuSys Solution means the software solution that we provide including our
cloud-based platform and each of the Applications that interact with our
platform.
Customer Data means
all data that relates to your existing or prospective customers.
Confidential Information means information that is by its nature confidential and is
designated by a party as confidential or a party knows or ought to know is
confidential, other than information which is or becomes public knowledge
otherwise than by breach of this Agreement or any other confidentiality
obligation.
Corporations Act means
the Corporations Act 2001 (Cth).
Copyright Act means
the Copyright Act 1968 (Cth).
Data means Account
Data, Customer Data, Activity Data, Input Data and Derived Data
collectively, jointly or singularly as the context requires.
Data Breach has
the meaning set out in 6.2
Defect means an
error in the ContinuSys Solution or a Feature due to a fundamental issue with
the underlying code.
Default Connectors mean data connectors native to the ContinuSys Solution that enables
raw data movement from data sources outside the ContinuSys Solution into the
ContinuSys Solution. ContinuSys Solution Services means the services and functions delivered to you or accessible by
you through the ContinuSys Solution.
Derived Data
means new data that is generated by the ContinuSys Solution.
Development has
the meaning given in sub-clause 4.9.
Experienced User
means an Authorised User that is:
(a)
knowledgeable about your Systems; and
(b)
familiar with and competent in the Use of the
ContinuSys Solution.
Features mean
software add-ins and 3rd party integrations (API’s), as offered by
us from time to time, that are additional to the Services and the ContinuSys
Solution.
Fees mean the
fees payable to us for our provision of Access and our rendering of Services,
which as at the Agreement Date are published on our Website or otherwise
notified to you directly.
Force Majeure means
any cause beyond the reasonable control of a party and which that party is
unable to overcome by the exercise of reasonable diligence and at a reasonable
cost, including an act of God, fire, earthquake, storm or flood, pandemic,
epidemic, order of government or regulatory authority, and the failure of
third-party equipment, software, technology or other services necessary for the
performance of a party’s obligations under this Agreement.
GST means a goods
and services tax, or a similar value added tax, levied or imposed under the GST
Law.
GST Law has the
meaning given to it in the A New Tax System (Goods and Development
Services Tax) Act 1999 (Cth).
Harmful Code
means computer program virus, drop dead device, trojan horse, time bomb, back
door device or other code that is harmful, destructive or disabling or which
assists in or enables unauthorised access to, or use or modification of any of
your or our Systems.
Host means Amazon
Web Services, or any other cloud server host that we engage from time to time
to store your Data and enable your Authorised Users to Access the ContinuSys
Solution.
Insolvent means
if a person is insolvent or an insolvent under administration, or has a
controller appointed (each as defined in the Corporations Act), are in
receivership, in receivership and management, in liquidation, in provisional
liquidation, under administration, wound up, subject to any arrangement,
assignment or composition, protected from creditors under any statute,
dissolved (other than to carry out a reconstruction whilst solvent) or
otherwise unable to pay debts when they fall due.
Intellectual Property Rights means all intellectual property rights, including the following
rights:
(a)
copyright, patents, rights in circuit layouts,
trademarks, designs, trade secrets, know how, and any right to have
confidential information kept confidential;
(b)
any application or right to apply for
registration of any of the rights referred to in paragraph (a); and
(c)
all rights or a similar nature to any of the
rights in paragraphs (a) and (b) which may subsist, whether or not such rights are registered or capable of being registered.
Improvement has
the meaning given in sub clause 7.2.
Input Data means
data that you or your Authorised Users input into the ContinuSys Solution.
Law includes any
requirement of any statute, rule, regulation, proclamation, ordinance or
by-law, present or future, and whether state, federal or otherwise.
Loss includes any
damage, loss, cost, liability or expense of any kind and however arising
(including as a result of any Claim) including penalties, fines and interest
whether prospective or contingent and any amounts that for the time being are
not ascertained or ascertainable.
Moral Right means
moral rights as defined in the Copyright Act 1968 (Cth).
New Services
means services offered by us in addition to the Services described in this
Agreement (including services which extend, alter, improve or add functionality
to the Services).
Notice means a
notice given under or in connection with this Agreement that adheres to the
requirements in clause 13.
Personnel means
employees and contractors.
Licence has the
meaning given by clause 4.1.
Representative of
a person means an officer, employee, contractor, professional adviser or agent
of that person.
Services mean the
ContinuSys Solution Services and Support Services that we provide,
individually, jointly or collectively as the context requires.
Support Services
mean services rectifying Defects in the operation and function of the
ContinuSys Solution.
System means all
computer firmware, middleware, protocols and other computer programs and all
computer hardware, peripheral equipment, networks, communications systems and
other equipment of whatever nature, used in your receipt of the Services and
Access to the ContinuSys Solution.
Term means the
period of time from the Acceptance Date continuing until the Agreement is
terminated in accordance with clause 11.
Upload means to
input, upload or import.
Use means to
load, execute, display and perform.
User Documentation means any material we have made available to you containing
technical or practical information regarding Use by you and your Authorised
Users of the ContinuSys Solution.
Website means the
website through which the ContinuSys Solution is available, being www.continusys.com or as
updated from time to time.
16.2
Interpretation
In interpreting this Agreement,
unless the context provides otherwise:
(a)
the singular includes the plural and vice versa,
and a gender includes other genders;
(b)
another grammatical form of a defined word or
expression has a corresponding meaning;
(c)
a reference to a rule, paragraph or schedule is
to a rule or paragraph of, or schedule to, this Agreement and a document or
instrument includes the document or instrument as novated, altered,
supplemented or replaced from time to time;
(d)
a reference to dollar or $, is to Australian
currency;
(e)
a reference to time is to time in Brisbane
Queensland, Australia;
(f)
a reference to a person includes a natural
person, partnership, body corporate, association, and any Government agency;
(g)
a reference to a party means a party to this
Agreement and includes the party’s executors, administrators, successors,
substitutes (including by novation) and assigns;
(h)
a reference to a group of persons is to any 2 or
more of them taken together and to each of them individually;
(i)
a reference to the whole is to each part of it;
(j)
a reference to a statute, regulation, code or
provision of a statute, regulation or code includes any modification or
re-enactment of it, a legislative provision substituted for it and a regulation
or statutory instrument issued under it;
(k)
“including” and similar expressions are not
words of limitation;
(l)
costs and expenses include legal costs and
expenses on a full indemnity basis;
(m)
conduct includes an omission, statement or
undertaking, whether or not in writing;
(n)
“property” or “asset” includes all
property and assets of any nature, including a business, and all rights,
revenues and benefits;
(o)
a rule of construction does not apply to the
disadvantage of a party because the party was responsible for the preparation
of this document or any part of it;
(p)
if a day on or by which an obligation must be
performed or an event must occur is not a Business Day, the obligation must be
performed or the event must occur on or by the next Business Day;
(q)
where time is to be calculated by reference to a
day or event, that day or the day of that event is excluded;
(r)
a word or expression defined in the Corporations
Act has the meaning given to it in the Corporations Act; and
(s)
headings and table of contents are for ease of
reference only and do not affect interpretation.
