The key expressions used in this Agreement are ‘Services’ and ‘Software Platform’. The Services include access to the Software Platform (i.e. the App and the Web Console).
1.1 These General Terms, together with the terms and conditions of the Order Form, form the Agreement.
1.2 These General Terms apply in each case to the acquisition of the Services by the Customer from IIT, in the event that:
(a) Customer agrees to a Minimum User Commitment in an Order Form;
(b) Customer agrees to month-to-month billing in an Order Form; or
(c) Customer orders the Services under a Free Trial.
1.3 The Dictionary in Schedule A sets out the definitions and rules of interpretation in this Agreement.
2.1 In consideration of the payment by Customer of the Fees, and subject to the terms and conditions of this Agreement:
(a) IIT shall provide the Services to Customer; and
(b) as part of the Services, IIT shall grant Customer a non-exclusive, worldwide licence during the Term for the Customer and its Users to use the App and the Web Console as intended by this Agreement.
2.2 The Software Platform and must only be used by Customer and its Users in accordance with this Agreement (including, without limitation, the Acceptable Usage Policy).
2.3 Except as expressly permitted in this Agreement, Customer shall not copy, alter, modify or reproduce the whole or any part of the Software Platform.
2.4 To avoid doubt, nothing in this Agreement constitutes an obligation upon IIT to provide any hardware (or Software other than the Software Platform) to Customer, and IIT is not the manufacturer, supplier or distributor of any hardware.
3. Fees, Charges and Taxes
3.1 In consideration for the provision of the Services, Customer shall pay the Fees as identified in the Order Form.
3.2 Where Customer has agreed in an Order Form:
(a) to a Minimum User Commitment, Customer shall pay IIT the Fees described in the Order Form on a monthly in arrears basis; and
(b) to be charged on a month-to-month basis, Customer shall pay IIT the Fees described in the Order Form on a monthly in advance basis.
3.3 Where the Customer is taking a Minimum User Commitment, IIT shall provide to Customer a properly rendered Tax Invoice setting out the Fees properly due to IIT on a monthly basis, and Customer must pay each Tax Invoice within 14 days from the date Customer receives the Tax Invoice.
3.4 The Fees are exclusive of taxes, duties and charges imposed in connection with the Services unless indicated otherwise, and for which the Customer shall be liable.
3.5 In addition to paying the Fees and any other amount payable under or in connection with this Agreement, Customer will:
(a) pay to IIT an amount equal to any GST payable for any supply by IIT in respect of which the Fees or other amount are payable under this Agreement; and
(b) make such payment on the same date that the Fees or other amounts to which it relates are due
(c) pay any costs incurred by IIT for interstate or international travel and accommodation as disbursements in addition to the Fees, provided that such expenses have received Customer’s prior written approval..
3.6 If Customer fails to pay any Tax Invoice by the due date for payment (except if the Tax Invoice is in dispute under clause 3.6), then without prejudice to any of IIT’s other legal rights, Customer must also pay IIT Interest on the outstanding amount. Interest will be charged at a rate of 3% per annum above the national CPI (pro rata based on the number of overdue days).
(a) there is a change in the timing or complexity of a requirement of Customer (and such change is agreed to by IIT); or
(b) other work is required by Customer (excluding the Customer Works);
and such circumstances are not the result of a breach of this Agreement or negligence by IIT, then IIT shall be entitled to make and Customer shall pay additional charges on the basis of its advised Fees for the relevant services supplied.
3.8 The Customer must not withhold payment under this Agreement to make any deduction from it for any reason including because the Customer claims to have a set off, counterclaim, or other right against IIT or any other person.
4. Customer's Obligations
4.1 Customer shall provide to IIT in a timely fashion:
(a) all data, information, logos, designs, graphics, audio/video and any other materials (together, ‘Customer Material’) it wishes to be incorporated into the Software Platform for its own use, and grant IIT a non-exclusive, non-transferable licence to use the Customer Material to the extent required for IIT to perform its obligations under this Agreement; and
(b) such other information, facilities, services and access to personnel as IIT reasonably requires to perform its obligations under this Agreement.
4.2 Customer undertakes to ensure that all Customer Material provided to IIT for the inclusion in the Software Platform:
(a) will not infringe the Intellectual Property Rights, privacy rights or other rights of any person; and
(b) is not obscene, offensive, defamatory or otherwise illegal or fraudulent.
4.3 Customer is responsible for obtaining all necessary permissions, authorisations, licences and consents in relation to the use and incorporation of Customer Material comprising materials of third parties into the Software Platform and in relation to the use by Users of the Software Platform.
4.4 Customer shall not Modify (whether by itself or through a third party) the Software Platform or merge all or any part of the Software Platform with any other software without IIT's written permission.
4.5 IIT shall not be responsible for any actual or alleged deficiency in the Software Platform which is attributable to a failure by Customer to comply with its obligations under this Agreement.
5. Implementation and Training Services
5.1 IIT shall provide the Implementation Services and Training Services(if any) set out and agreed in the Order Form.
6. Service Levels and Maintenance and Support
6.1 IIT shall:
(a) use all reasonable endeavours to ensure the Software Platform meets the Service Levels described in the Order Form ; and
(b) update the Software Platform in accordance with its general update plan and as it otherwise determines in its discretion, with bug fixes and new releases of the Software Platform created by IIT during the Term (not being a Modification made at the request of and for Customer).
7.2 Subject to clause 7.1, IIT offers the Customer (as agent for Acurus Pty Ltd) to provides maintenance and support helpdesk or other support services in respect of the Software Platform. If a maintenance and support helpdesk service is required by Customer, this may be obtained from IIT in accordance with the term and conditions that govern that third party service.
6.2 The Software Platform as Modified or altered remain the property of IIT in all respects, whether or not modified in accordance with this Agreement.
6.3 IIT gives no warranty that the Software Platform will be available continuously or be free of any fault or error.
7. Copying and Security
7.1 Customer shall use reasonable endeavours to make sure that the App (including any copies) is protected at all times from misuse, damage, destruction or any form of unauthorised use.
7.2 Customer shall not reverse assemble or reverse compile the whole or any part of the App or the Software Platform generally in whole or in part, or directly or indirectly allow or cause any person to do the same.
7.3 If requested by IIT, Customer shall issue a notice in a form approved by IIT to all employees and other authorised users of the Services under its direction or control, advising such persons of Customer's obligations under this clause and also advising of the possible civil and criminal consequences of a breach of this clause.
8. Intellectual Property Rights and Non-Competition
8.1 Subject to clause 9.2, IIT warrants that it owns or is the authorised licensee of all pre-existing Intellectual Property Rights in the Software Platform and has the necessary authority, consents and licences to grant the rights to Customer under this Agreement.
8.2 Customer warrants that it owns or is the authorised licensee of all of the Intellectual Property Rights in the Customer Material.
8.3 Nothing in this Agreement is intended to grant any Intellectual Property Rights in or relating to:
(a) any element of the Software Platform to Customer, and all Intellectual Property Rights in the Software Platform remain with IIT and/or its relevant licensor at all times; and
(b) the Customer Material to IIT, and all Intellectual Property Rights in the Customer Material remains with the Customer and/or its relevant licensor at all times.
8.4 If proceedings are brought or threatened by a third party against the customer alleging the use of its Software Platform constitute an infringement of the Intellectual Property Rights of that third party, IIT may at its option and expense conduct the defence of such proceedings. The Customer must provide all necessary co-operation, information and assistance to IIT in the conduct of the defence of such proceedings.
8.5 Without limiting any other provision of this Agreement, Customer agrees that it must not, and will procure that its Personnel will not, whether during or after the Term directly or indirectly, whether solely or jointly with any other person and whether as principal, agent, officer, employee, consultant or otherwise create, develop, procure, or be knowingly involved with the creation, development or procurement of any software application that performs the same or substantially the same function as or is likely to compete with the Software Platform.
9. Implied Terms
9.1 Subject to clause 9.2, any condition or warranty which would otherwise be implied by law and incorporated into this Agreement is expressly excluded.
9.2 Where legislation implies in this Agreement any condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of or liability under such condition or warranty, the condition or warranty shall be deemed to be included in this Agreement. However to the extent permitted by law, the liability of a party for any breach of such condition or warranty shall be limited, at the option of that party, to one or more of the following:
(a) if the breach relates to goods:
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of such goods;
(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(iv) the payment of the cost of having the goods repaired; and
(b) if the breach relates to services:
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again.
IIT will maintain during the Term both public liability insurance and professional indemnity insurance policies insuring IIT against claims made against it up to $10,000,000 for each policy.
11.1 Each party agrees to keep confidential, and not to use or disclose, any of the other party’s Confidential Information except as otherwise permitted by this Agreement.
11.2 IIT is permitted to disclose Confidential Information to a third party if IIT complies with each of the following conditions:
(a) the disclosure is only made to the extent necessary for IIT to perform this Agreement;
(b) IIT obtains Customer’s prior written consent, which consent shall not unreasonably be withheld; and
(c) before the disclosure, IIT ensures that the third party agrees to comply with the confidentiality obligations under this Agreement and IIT must then ensure that the third party complies with those obligations.
11.3 For the purpose of IIT marketing and promoting the Services, IIT may disclose the fact that it has licensed the Software Platform to Customer.
11.4 The obligations of confidentiality under this clause 12 do not apply to Confidential Information that is:
(a) publicly available or known other than via a breach of the parties’ obligations under this Agreement; or
(b) required to be disclosed by Law or the rules of any stock exchange on which the securities of the party intending to make the disclosure (Discloser) are listed, if the Discloser:
(i) notifies the party to which the Confidential Information belongs to (Owner) as soon as practicable after it becomes aware that it may be required to disclose the Confidential Information; and
(ii) agrees with the Owner in good faith the form, content, timing and manner of disclosure to ensure that it is kept to the minimum level of Confidential Information required to satisfy the Law or rules.
12. Liability and indemnities
12.1 Subject to the remaining provisions of this clause, Customer shall indemnify and hold harmless IIT and its Personnel ("those indemnified") from and against any loss (including reasonable legal costs and expenses) or liability reasonably incurred or suffered by any of those indemnified arising from any proceedings against those indemnified to the extent that such loss or liability was caused by:
(a) a breach by Customer of its obligations or warranties under this Agreement; or
(b) any wilful, unlawful or negligent act or omission of Customer.
12.2 Subject to the remaining provisions of this clause, IIT shall indemnify and hold harmless Customer and its Personnel ("those indemnified") from and against any loss (including reasonable legal costs and expenses) or liability reasonably incurred or suffered by any of those indemnified arising from any proceedings against those indemnified to the extent that such loss or liability was caused by:
(a) a breach by IIT of its obligations or warranties under this Agreement;
(b) any wilful, unlawful or negligent act or omission of IIT; and
(c) proceedings which determine that Customer's use or possession of the Software Platform and constitutes an infringement in Australia of any Intellectual Property Rights of a third party.
12.3 A party (first party) shall not be required to indemnify another party (second party) unless the second party:
(a) notifies the first party in writing as soon as practicable of any infringement, suspected infringement or alleged infringement;
(b) gives the first party the option to conduct the defence of such a claim at the first party’s sole cost and expense, including negotiations for settlement or compromise prior to the institution of legal proceedings; and
(c) provides the first party with reasonable assistance at the first party’s sole cost and expense in conducting the defence of such a claim.
12.4 IIT shall not indemnify Customer to the extent that an infringement, suspected infringement or alleged infringement arises from:
(a) use of the Software Platform in combination by any means and in any form with other goods/equipment not specifically approved by IIT;
(b) use of the Software Platform in a manner or for a purpose not reasonably contemplated or not authorised by IIT; or
(c) Modification of the Software Platform by third parties or without the prior written consent of IIT; and
(d) In the case of indemnity by IIT, Customer refuses to permit IIT to modify or substitute the infringing part of the Software Platform at its own expense in order to avoid continuing infringement.
12.5 The maximum liability of IIT under this Agreement for any and all breaches of this Agreement will be capped at and will not exceed the total amounts paid and payable by Customer to IIT pursuant to this Agreement.
12.6 Subject to clause , the maximum liability of Customer under this Agreement for any and all breaches of this Agreement will be capped at and will not exceed the total amounts payable by Customer to IIT pursuant to this Agreement for the minimum number of licences multiplied by the Fees multiplied by the remaining number of whole months from the date of the breach until the expiration of the Initial Term. However, the liability of the Customer under this Agreement for breaches of the Agreement will not be capped for breach of confidentiality or privacy, or breach of IIT’s Intellectual Property Rights.
12.7 Neither party will be liable to the other party under this Agreement for any consequential loss, including indirect or consequential loss or damage, loss of opportunity or goodwill, loss of revenues, loss of profits, loss of anticipated savings or business, loss or corruption of data and any costs or expenses incurred in connection with the foregoing..
13. Term and Termination
13.1 This Agreement commences on the Commencement Date and continues for the Term.
13.2 Unless otherwise terminated in accordance with this clause 14, the Term automatically renews at the end of the first Term for a further period equal to the Term, and will continue to do so for successive periods (“successive Terms”), provided that neither party is in breach of this Agreement.
13.3 Either party may terminate this Agreement immediately by notice in writing if the other party:
(a) is in breach of any term of this Agreement and:
(i) the breach is not capable of being remedied; or
(ii) the breach is not remedied within 14 Business Days of notification of the breach by the first-mentioned party;
(b) becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency, administration or otherwise dissolved;
(c) ceases or threatens to cease conducting its business in the normal manner; or
(d) is fraudulent in connection with this Agreement.
13.4 If notice is given to Customer pursuant to clause 13.3:
(a) IIT may, in addition to terminating the Agreement:
(i) disallow access to or use of the Services;
(ii) retain any money paid to it for work performed in accordance with this Agreement; and
(b) all of the Fees for Services for the remainder of the Term become immediately due and payable.
13.5 If notice is given to IIT pursuant to clause 13.3, IIT is liable for and indemnifies Customer against any loss or damage suffered by Customer as a result of termination.
13.6 On termination of this Agreement, each party must promptly return any of the other party’s Confidential Information in its, or its Personnel’s, possession or control.
13.7 Termination of this Agreement does not affect the rights or remedies of either party accrued on or before the date of termination.
13.8 Clauses 14, 15, 16, 13.4, 13.5, 17, 22 and 25, and any other clauses which should by their nature survive termination of this Agreement, so survive termination.
14. Force Majeure
14.1 Neither Party shall be liable for any delay or failure to perform its obligations pursuant to this Agreement if such delay is due to Force Majeure.
14.2 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 until the Force Majeure has ended.
14.3 If a delay or failure by a Party to perform its obligations due to Force Majeure exceeds 60 days, either Party may terminate the Agreement on providing 7 days’ notice in writing to the other Party.
14.4 If this Agreement is terminated pursuant to clause 14.3, IIT must refund all amounts previously paid by Customer pursuant to this Agreement for goods or services not provided by IIT to Customer.
15. Entire Agreement
This Agreement constitutes the entire agreement between the Parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing.
16. Assignment and Novation
16.1 The benefit of this Agreement shall not be assigned by either party without the other party's prior written consent.
16.2 A party may consent to the assignment or novation of this Agreement subject to such conditions as it chooses to impose or may refuse to provide consent.
17.1 No right under this Agreement shall be deemed to be waived except by notice in writing signed by each Party.
17.2 Waiver made by a party pursuant by clause 19.1 will not prejudice its rights in respect of any subsequent breach of the Agreement by the other party.
17.3 Subject to clause 19.1, any failure by a party to enforce any clause of this Agreement, or any forbearance, delay or indulgence granted by a party to the other, will not be construed as a waiver of that party's rights under this Agreement.
18. Dispute Resolution
18.1 Without limiting each party’s right to seek urgent injunctive relief, before commencing any proceedings in any court, the procedure set out in this clause must be followed in relation to the resolution of a dispute concerning the interpretation of a term this Agreement or of the Parties' rights or obligations pursuant to this Agreement ("Dispute").
20.2 Upon any Dispute arising:
(a) a party may give written notice to the other Party that a Dispute exists ("Dispute Notice") with full particulars of the matters in Dispute;
(b) within 5 Business Days of receipt of a Dispute Notice, the recipient must hold discussions in good faith in an attempt to resolve the Dispute; and
(c) if the Dispute is not resolved within 20 Business Days of the commencement of the meeting referred to in the previous sub-clause, either party may refer the matter to mediation in accordance with, and subject to the Institute of Arbitrator and Mediators Australia (IAMA) Mediation Rules.
22. Severability and Survival
If any provision of this Agreement is held invalid, unenforceable or illegal for any reason, the Agreement shall remain otherwise in full force apart from such provision which shall be deemed deleted.
Subject to any provision to the contrary, this Agreement shall endure to the benefit of and be binding upon the Parties and their successors, trustees, permitted assigns or receivers, but shall not endure to the benefit of any other persons.
19. Governing Law
This Agreement is governed in all respects by the laws of New South Wales, Australia. The parties irrevocably submit to the exclusive jurisdiction of the courts of New South Wales, Australia and to the Federal Court of Australia sitting in New South Wales.
20.1 Notices under this Agreement may be delivered by hand, by mail or by facsimile to the addresses specified in the Schedule.
20.2 Notice will be deemed given:
(a) in the case of hand delivery, at the time of delivery;
(b) in the case of posting, three (3) days after despatch;
(c) n the case of facsimile, upon receipt of transmission if received on a Business Day or otherwise at the commencement of the first Business Day following transmission.
This Agreement may be executed in counterparts by the respective Parties, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement, provided that this Agreement shall be of no force and effect until the counterparts are exchanged.
(a) “Activate User” has the meaning given in the Order Form;
(b) "App" has the meaning given in the Order Form;
(c) “Business Day” means a day that is not a Saturday, Sunday or public holiday in Victoria;
(d) "Commencement Date" means the date set out in the Order Form;
(e) "Confidential Information" means any information of a Party which by its very nature is confidential (whether recorded or not and if recorded whether by writing or any other means).
(f) "Customer Material" has the meaning given in clause 4.1.
(g) “Free Trial” means, where the Customer has never used the App before, and IIT makes the App available to Customer on a trial basis free of charge until the earlier of: (i) the end of the free trial period for which Customer registered to use the App, and (ii) the start date of a subscription under an Order Form.
(h) “Force Majeure Event” means any event due to circumstances beyond IIT’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems, service disruptions involving hardware, software or power systems not within IIT’s possession or reasonable control, and denial of service attacks.
(i) “Order Form” means the document setting out the commercial terms for the Services.
(j) "GST" means a tax payable under the GST Act;
(k) "GST Act" means A New Tax System (Goods and Services Tax) Act 1999;
(l) "Intellectual Property Rights" means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trade marks, designs, patents, circuit layouts, business and domain names, inventions, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields;
(m) “Interest” means interest to be paid at the rate prescribed from time to time under section 2 of the Penalty Interest Rates Act 1983 (Vic) calculated at the date of payment;
(n) “Law” means any applicable legal or regulatory requirement;
(o) “Minimum Commitment” has the meaning given in the Order Form.
(p) "Modify" means to modify, enhance, add to, alter and amend the Software Platform and "Modification" has a corresponding meaning. For the avoidance of doubt, a Modification does not include Updates;
(q) "Party" means IIT or Customer as the context requires;
(r) "Personnel" means in relation to a Party, the officers, employees and sub-contractors (including labour-hire companies that enter into contractual agreements with a Party) only of that Party;
(s) “Privacy Act” means the Privacy Act 1988 (Cth);
(t) "Schedule" means a schedule to this Agreement;
(u) Scheduled Downtime’ means such necessary planned maintenance periods or outages (such as Updates or other infrastructure upgrades) during which the Software Platform are not able to be used by the Customer, as notified in advance by IIT (with such periods, where practicable, to be scheduled at low traffic times, and be less than 12 hours in aggregate per year).
(v) "Services" has the meaning given in the Order Form;
(w) Service Availability’ means the actual time that the Software Platform is available to the Customer, excluding Scheduled Downtime and failures or outages caused by the Customer’s act or omission, by Force Majeure Events or by infrastructure or data not under the control of IIT.
(x) "Software Platform" has the meaning given in the Order Form;
(y) "Subscription Fees" means the amounts specified in the Order Form;
(z) "Subscription Services" has the meaning given in the Order Form;
(aa) “Tax Invoice” has the meaning given to it in the GST Act;
(bb) "Term" means the period set out the Order Form;
(qq) ‘Web Console’ has the meaning given in the Order Form.
21.2 In this Agreement, unless the contrary intention appears:
(a) headings are for ease of reference only and do not affect the meaning of this Agreement;
(b) the singular includes the plural and vice versa;
(c) other grammatical forms of defined words or expressions have corresponding meanings;
(d) a reference to a clause or a paragraph is a reference to a clause or paragraph in this Agreement;
(e) a reference to a document, deed or agreement, including this Agreement includes a reference to that document, deed or agreement as novated, altered or relaced from time to time;
(f) a reference to a person includes any type of entity or body of persons, whether or not it is incorporated or has a separate legal entity, and any executor, administrator or successor in law of the person;
(g) monetary references are to Australian currency;
(h) a term or expression starting with a capital which is defined in these definitions has the meaning given to it in these definitions; and
(i) words defined in the GST Act have the same meaning in this Agreement, unless the context makes it clear that a different meaning is intended.
- Schedule A -
IIT Acceptable Use Policy
Customer must not do, or attempt to do, any of the following, and must procure that its Users do the same, in respect of the Software Platform: