AxIT Ongoing Service Terms & Conditions
Service Terms and Conditions
In these Strength By Numbers Service Terms and Conditions (“Service Terms”):
Agreement means the agreement between the parties made up of:
(a) the Customer Agreement (including the Customer Terms); and
(b) these Service Terms.
Agreement Commencement Date means the date listed in item 3 of the Customer Terms.
Agreement Expiry Date means the date the Agreement ends or is terminated in accordance with clauses 2.1 and/or 23;
Agreement Term means the Initial Term plus any Further Term or where not specified, means the period between the Agreement Commencement Date and the Agreement Expiry Date;
Approved Purpose means the ordinary use of the Technology by the Customer for its business and commercial purposes;
Australian Consumer Law means the Competition and Consumer Act (2010) Cth Schedule 2;
Business Day means a day that is not a Saturday, Sunday or public holiday in Melbourne, Victoria;
Change of Control means, in relation to an entity, any significant change in the legal or beneficial ownership and, where relevant, of more than fifty percent (50%) of the voting shares of the entity;
Claim means any claim, demand, remedy, suit, action, proceeding, right of action, claim for compensation or claim for abatement of any monetary obligation, whether arising under contract (including this Agreement), in tort (including negligence), at common law, in equity, under statute, under an indemnity or otherwise;
Confidential Information means all confidential, non-public or proprietary information exchanged between the parties before, on or after the Agreement Commencement Date relating to the business, technology or other affairs of each party or which comes into a party’s possession pursuant to, or as a result of, any negotiations or discussions in connection with this Agreement including the existence, nature and terms of this Agreement, whether disclosed verbally, in writing, in electronic form or by any other means;
Controller has the meaning given by the Corporations Act;
Consequential Loss means the following, however arising and even if it is reasonably contemplated by the parties at the Agreement Commencement Date as a likely result of breach of the Agreement:
(a) incidental, special, remote or unforeseeable loss or damage;
(b) loss of, damage to, breach of, or corruption of data;
(c) breach of security;
(d) loss of revenue, profit, income, bargain, opportunity, use, production, business, contract, goodwill, reputation anticipated savings, loss caused by business interruption, or the cost of obtaining new financing or maintaining existing financing, but excluding loss of any amounts that would, but for the act or omission of a party, have otherwise been payable under this Agreement;
(e) costs or expenses incurred to prevent or reduce loss or damage which otherwise may be incurred or suffered by a third party; or
(f) loss or damage of the nature set out above in clauses (a) to (e) (inclusive) that is incurred or suffered by or to a third party;
Corporations Act means the Corporations Act 2001 (Cth);
Customer means the party identified in the Customer Terms as the Customer, and includes its Representatives and related bodies corporate;
Customer Agreement means the document that the parties sign for the Customer to order Services from the Supplier, including the Customer Terms.
Customer Terms means the part of the Customer Agreement identified as such, containing the details of the Agreement such as (but not limited to) the descriptions of the Services and Deliverables, Fees and the Agreement Term.
Customer Data means:
(a) any measurements recorded by the Customer using equipment provided by the Supplier under this Agreement;
(b) any information, text, drawings or other materials which are embodied in any electronic or tangible medium and which are supplied by the Customer to the Supplier or which the Supplier is required to generate, collect, process, store or transmit under this Agreement;
(c) Personal Information (whether relating to the Customer, Customer’s staff or representatives or Customer’s End-Users);
(d) Confidential Information belonging to the Customer,
but excludes (to the extent that it doesn't fall within the above categories in (a) - (d) inclusive):
Customer Material means all Material owned by the Customer or licensed to the Customer by a third party which is provided by or on behalf of the Customer to the Supplier for the purposes of this Agreement and includes:
(a) any modifications or revisions to or enhancements of the Customer Material made after the Agreement Commencement Date;
(b) any Material derived from the Customer Material after the Agreement Commencement Date,
Data Breach means any actual or suspected:
(a) impairment, compromise or damage to the confidentiality, reliability, integrity or assurance of the Customer Data;
(b) flaw or vulnerability of any kind in the security controls or other measures used to protect the Customer Data; or
(c) misuse or loss of, interference with or unauthorised access to, modification of or disclosure of Customer Data;
Defect or Defective means, in relation to a Deliverable, if a Deliverable fails to substantially conform or perform in accordance with the requirements particularised in the Customer Terms (if any);
Deliverable means an item required to be provided to the Customer, or a task to be completed for the Customer, by the Supplier under this Agreement, including those set out in of the Customer Terms;
Developed Material means all Material in any form (whether visible or not) brought or required to be brought into existence by the Customer, Supplier or both pursuant to these Service Terms or the Customer Terms, other than Third Party IP;
End User means the Customer and its customers, wherever located;
Equipment means the equipment specified in item 7 of the Customer Terms;;
Fees means the fees payable by the Customer for the Services, as specified in item 10 of the Customer Terms;
Force Majeure means anything outside the reasonable control of a party regardless of whether it is reasonably contemplated by the parties at the Agreement Commencement Date as a likely result of breach of the Agreement;
Further Term means the period specified in item 6 of the Customer Terms.
GST has the meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
Infringement Claim is:
(a) any Claim which would, if true, involve a breach of a warranty under clause 14.4;
(b) where the Supplier is the indemnifying party, any actual, threatened or potential Claim by a third party that the supply or other use of the Services, Deliverables or Supplier Material infringes any Third Party IP; or
(c) where the Customer is the indemnifying party, any actual, threatened or potential Claim by a third party that the provision of Customer Material or its use in accordance with this Agreement infringes any Third Party IP;
Initial Term means the period specified in item 5 of the Customer Terms.
Insolvency Event means, in relation to a party, any one or more of the following:
(a) it is (or states that it is) insolvent under administration or insolvent (each as defined in section 9 of the Corporations Act);
(b) it has had a Controller appointed, or is in liquidation, in provisional liquidation, under administration, or wound up or has had a receiver or receiver and manager appointed to any part of its property;
(c) it is subject to any compromise, arrangement, assignment, moratorium or composition, protected from creditors under any statute or dissolved (in each case other than to carry out a reconstruction or amalgamation while solvent on terms approved by the other parties, such approval not to be unreasonably withheld);
(d) an application or order has been made (and in the case of an application, it is not stayed, withdrawn or dismissed within 30 days), resolution passed, proposal put forward, or any other action taken, in each case in connection with that party, which is preparatory to or could result in any of paragraphs (a), (b) or (c) above;
(e) it is taken (under section 459F(1) of the Corporations Act) to have failed to comply with a statutory demand;
(f) it is the subject of an event described in sections 459C(2) or 585 of the Corporations Act (or it makes a statement from which another party to this Agreement reasonably deduces it is so subject);
(g) it ceases or threatens to cease to carry on all or a material part of its business;
(h) it suspends payments of its debts or is otherwise unable to pay its debts as and when they become due and payable; or
(i) something having a substantially similar effect to one or more of the preceding paragraphs happens in connection with that party under the laws of any jurisdiction,
(j) unless such event or circumstance occurs as part of a solvent reconstruction, amalgamation, scheme, compromise, arrangement, merger or consolidation approved by the other parties to this Agreement;
Installation Services means the installation services to be provided by the Supplier to the Customer with respect to the Services, as more particularly described in item 12 of the Customer Terms;
Insurance Policies means the insurance policies listed in item 16 of the Customer Terms;
Intellectual Property Rights includes all industrial and intellectual property rights, and includes any patents, registered designs, copyright (including future copyright), trade or service marks (whether registered or unregistered), trade secrets, know-how, rights in relation to circuit layouts, or other proprietary right, and applications for, and rights to apply for, registration of any of the foregoing;
Liability Cap Amount means the amount specified in item 17 of the Customer Terms;
Loss means loss, damage, liability, charge, expense, outgoing, payment or cost of any nature or kind, including all legal and other professional costs;
Major Update means an Update that will or is likely to materially affect the Customer's ability to access and use the Technology as contemplated by these Service Terms and/or the Customer Terms;
Material means material in whatever form, including without limitation documents, specifications, playlists (as defined on the Website or in other materials made available by the Supplier to the Customer), training or testing regimes, reports, products, equipment, information, data, graphic layouts, images and software;
Moral Rights has the meaning given by the Copyright Act 1968 (Cth);
Payment Method means the method used for payment of the Fee by the Customer to the Supplier, as set out in these Service Terms and/or in item 11 of the Customer Terms;
Personal Information means data by which a person may be personally identified, including a person's name, postal address, email address, telephone number and any other such information a party collects, including that which is defined as personal or personally identifiable information under applicable Privacy laws;
PPSA means the Personal Property Securities Act 2009 (Cth) as amended from time to time.
Privacy laws means all domestic and international privacy data protection and anti-spam laws, rules, regulations, best practices and regulatory guidance relating to privacy, data security, cybersecurity, anti-spam and the collection, storage, use and disclosure of Personal Information, as applicable to either party;
Representative means, in respect of a party, any person acting for or on behalf of the party and includes any director, officer, employee, agent, contractor or sub-contractor of the party;
Services means services and any Deliverables to be provided by the Supplier to the Customer under these Service Terms and/or the Customer Terms;
Software means the computer program described in item 9 of the Customer Terms;
Software Services means provision of:
(a) the Technology, including updates to software and hardware carried out at the Supplier’s discretion from time to time; and
(b) the User Documentation,
(c) as more particularly described in item 9 of the Customer Terms;
Specifications means the requirements for the Services and/or Deliverables, as outlined in item 14 of the Customer Terms;
Service Terms means the SBN Service Terms and Conditions, as amended from time to time.
Supplier means the party identified in this Agreement as the Supplier and its Representatives and Related Bodies Corporate;
Supplier Material means any Material (including know-how, technique, methodologies, concepts and ideas) owned by the Supplier or licensed to the Supplier by a third party before the Agreement Commencement Date or developed by the Supplier or licensed to the Supplier outside the scope of this Agreement and provided to the Customer in connection with the Services and any Developed Material, and includes:
(a) the Technology;
(b) any modifications or revisions to or enhancements of the Supplier Material made after the Agreement Commencement Date;
(c) any Material derived from the Supplier Material after the Agreement Commencement Date,
Supplier Policies means all of the Supplier's written policies, guidelines, procedures and standards and third party policies with which the Supplier must comply, as may be specified by the Supplier to the Customer from time to time;
Support and Maintenance Services means the support and maintenance services to be provided by the Supplier with respect to the Software Services under this Agreement, as more particularly described in item 13 of the Customer Terms;
Taxes means taxes, levies, imposts, charges and duties (including, stamp and transaction duties) imposed by any government agency, together with any related interest, penalties, fines and expenses in connection with them except if imposed on, or calculated having regard to, the overall net income of the Customer or the Supplier, but excluding GST;
(a) the Software;
(b) the Equipment;
(c) any and all computer software applications or other applications made available or accessible through provision of the Services;
(d) the system, platform, network and data centre infrastructure and hardware used or operated by or on behalf of the Supplier in order to provide the Services;
(e) any Supplier Material provided or made available to the Customer or End-Users in connection with the Services;
(f) Third Party IP, to the extent such material is licensed to the Supplier and provided or made available to the Customer or End-Users in connection with the Services;
(g) any Updates to the materials set out above in clauses (c) to (g) (inclusive);
Third Party IP means Intellectual Property Rights in Material owned by a third party;
Training Services means the training services to be provided by the Supplier to the Customer with respect to the Software Services, as more particularly described in item 12 of the Customer Terms;
Update means, in relation to the Technology, software which has been provided or produced to alter, improve or add to the functionality of the Technology or to overcome defects in the Technology;
User Documentation means in relation to a Service, all documentation, technical manuals, operator and user manuals, flow diagrams, file descriptions and other written information describing or explaining how to use or receive the Service;
Website means the internet website (or one of a group of websites) through which End Users may access some aspects of, or information about, the Software Services, as specified in item 18 of the Customer Terms.
In these Service Terms:
(a) if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(b) words such as including or for example do not limit the meaning of the words preceding them;
(c) a reference to a document or instrument, including this Agreement, includes all of its clauses, paragraphs, recitals, parts, schedules and annexures;
(d) a party includes the party’s successors and permitted transferees and assigns and if a party is an individual, includes executors and personal legal representatives;
(e) an obligation or liability assumed by, or a right conferred on, two or more parties binds or benefits them all jointly and severally;
(f) no provision of this Agreement will be construed to the disadvantage of a party merely because that party was responsible for preparing this Agreement or including the provision in this Agreement;
(g) all monetary amounts are expressed in Australian Dollars ($AUD); and
(h) parties must perform their obligations on the dates and times fixed by reference to Melbourne, Victoria.
To the extent of any inconsistency between the Customer Terms and these Service Terms, the Customer Terms will prevail.
2.1 Agreement Term
This Agreement commences on the Agreement Commencement Date and continues in accordance with clause 2.2 unless terminated.
2.2 Further Terms
This Agreement will automatically renew for a Further Term, commencing on the expiry of the Initial Term or the expiry of a Further Term (as applicable), unless a party notifies the other party that it does not agree to a Further Term at least 30 days prior to the end of the Initial Term or Further Term, as applicable.
3.1 Provision within approved countries
The Customer acknowledges that the Services and Deliverables are strictly provided for use within approved countries and must not be used in any country outside of those approved in any capacity.
3.2 Not for medical use
The Customer acknowledges that the Services and Deliverables are not to be used except for the measurement of normal athletic performance of well individuals and must never be used for medical purposes (including diagnosis or treatment of medical issues).
3.3 Supplier obligations
The Supplier must:
(a) perform the Services with due care and skill and in a timely and professional manner;
(b) comply with all laws and maintain any licenses or authorisations required for the purposes of providing the Services;
(c) use reasonable endeavours to ensure no viruses or similar programming effects are coded or introduced into the Technology as a direct result of the provision of the Services; and
(d) to the extent possible, control, co-ordinate, supervise, direct and complete all activities necessary to provide the Deliverables and complete the Services.
3.4 Customer obligations
The Customer must:
(a) ensure that End-Users understand that the Services and Deliverables are not to be used except for the measurement of normal athletic performance of well individuals and must never be used for medical purposes (including diagnosis or treatment of medical issues);
(b) ensure that End-Users understand and agree to the Customer’s and Supplier’s use and disclosure of the End-User’s Personal Information to the extent contemplated in this Agreement;
(c) provide all necessary information, documentation and assistance required by the Supplier to provide the Services;
(d) maintain, and ensure End-Users maintain, the secrecy and confidentiality of all identification and log-in information required by the Customer and/or End-Users to access and use the Services;
(e) maintain any licences or authorisations required for the purposes of receiving the Services; and
(f) co-operate, and ensure its Representatives co-operate, with the Supplier as the Supplier reasonably requires.
4.1 Access and use
(a) Subject to the Customer's payment of the Fee and compliance with the terms and conditions of these Service Terms and the Customer Terms, the Supplier grants the Customer a non-exclusive, non-transferrable, non-sublicensable (except as contemplated in clause 14.1(b)), non-assignable, revocable and Australia-wide licence for the Agreement Term to use and access the Software Services by and for itself and its End Users and strictly for the Approved Purpose.
(b) The parties agree and acknowledge that the Technology:
(i) will be installed and maintained by the Supplier under the terms of this Agreement;
(ii) may be accessible only to users who comply with reasonable security and connection requirements; and
(iii) is not available locally from the Customer's systems.
4.2 Supplier obligations
In addition to any other obligations outlined in these Service Terms or the Customer Terms, the Supplier will:
(a) use its reasonable endeavors to ensure the Software Services comply with the Specifications; and
(b) provide the Customer with the details necessary to receive the Software Services in accordance with any timetable outlined in this Agreement (including the Customer Terms).
4.3 Customer obligations
In addition to any other obligations outlined in these Service Terms or the Customer Terms, in accessing and using the Software Services:
(a) the Customer must:
(i) comply with all laws;
(ii) ensure all Customer Data required to use the Software Services is in the form required by the Supplier;
(iii) protect the Technology from unauthorised access, use or damage;
(b) the Customer must not:
(i) use the Software Services in any way which could damage the reputation of the Supplier or the goodwill or other rights associated with the Technology;
(ii) use the Software Services to engage in any conduct that is unlawful, immoral, threatening, abusive or in any way deemed to be unreasonable by the Supplier; and
(iii) make any commitments, warranties, guarantees or other promises to any third party on behalf of the Supplier.
(a) The Supplier reserves the right, but is not required, to provide Updates.
(b) If the Supplier exercises its right under clause 4.4(a) and the Update is a Major Update, the Supplier will provide the Customer with reasonable notice before providing the Major Update (Major Update Notice). The Major Update Notice must identify the nature of the Major Update and its anticipated effect on the Customer's ability to access and use the Technology. For the avoidance of doubt:
(i) a Major Update Notice shall be deemed as satisfied upon providing notice of such by e-mail to the Customer’s Representative; and
(ii) the Supplier is not required to provide the Customer with notice of an Update that is not a Major Update. For the avoidance of doubt, the Supplier may make minor updates to the Services and these may be implemented without notice to the Customer.
(c) The Supplier will not exercise its rights under this clause 4.4 in a manner which would intentionally cause the Customer to lose access to Customer Data or materially decrease the utility of the Software Services to the Customer, other than in accordance with this Agreement.
(d) Where a Major Update adds new features or functionality, the Supplier may advise the Customer of additional fees or charges applicable to the Major Update.
Where the Customer Terms include any:
the Supplier will provide those Services at the Fee/s set out in the Customer Terms.
6.1 Use of Equipment
(a) All Services under this agreement, including the provision of the Equipment, are provided strictly to the Customer alone. The Customer may not sell, assign, sub-license, lease or encumber the Services or Equipment in any way without the express written consent of the Supplier.
(b) The Customer must abide by all supporting or instructional documentation provided with respect to Equipment.
(c) The Customer must not copy, disassemble, reverse-engineer, repair, tamper with or otherwise deal with the Equipment in any way other than as expressly allowed under this Agreement or by the supporting documentation provided by the Supplier with respect to the Equipment.
(d) If Equipment requires charging, the Customer must only use the charging equipment provided by the Supplier.
(e) If the Equipment suffers a Defect or any damage or lack of operability during the Initial Term, the Customer must immediately inform the Supplier.
(f) If a Defect is found by the Supplier (acting reasonably) not to be the fault of a Customer or End User, and it is discovered within the Initial Term, then the Supplier will endeavour to, at the Supplier’s option:
(i) Repair the Defect; and/or
(ii) Provide replacement Equipment,
within 10 business days of the Customer informing the Supplier of the Defect.
(g) If the Supplier fails to repair the Defect or provide replacement Equipment within 10 business days of the Customer informing the Supplier of the Defect, the monthly charge for the month immediately following the notification of the Defect will be waived.
(h) If the Supplier fails to rectify a Defect in accordance with this clause, without limiting the Customer’s other remedies available under this Agreement and at law, the Supplier’s total liability to the Customer will be limited to the amount paid by the Customer for the Defective Deliverable during any period for which the Equipment was Defective.
(i) If the Supplier requests that the Customer return any Defective Equipment, the Supplier undertakes to reimburse the Customer shipping up to any limit pre-agreed with the Customer in writing (including by email) within a reasonable period of receiving satisfactory proof of the Customer’s shipping costs.
(j) If any Equipment is found by the Supplier to be damaged or compromised due to improper use (including, but not limited to, use which breaches this Agreement) by the Customer or End Users, the Customer will be liable for the full cost of replacing the affected Equipment as well as any shipping costs incurred by the Customer or Supplier in respect of the affected Equipment.
6.2 Equipment ownership
(a) Risk and title in the Equipment will transfer to the Customer at the time or on the occurrence of the event specified in item 8 of the Customer Terms.
(b) The Customer acknowledges, once ownership of the Equipment has transferred to the Customer:
(i) its obligations under clause 6.1 above continue to apply; and
(ii) risk in the Equipment now rests with the Customer, and the Supplier makes no warranty about the ongoing quality or operability of the Equipment.
6.3 Security interests
(a) Terms that are defined in the PPSA have the same meaning in this clause.
(b) The Customer acknowledges and agrees that, for the purposes of the PPSA, the Supplier has a security interest in the Equipment and in any right in relation to or derived from the Equipment, including any proceeds from, and any receivables as a result of, the disposal of the Equipment or any part of them.
(c) The Supplier may register its security interest under this clause, including as a purchase money security interest.
(d) The Customer waives the right to receive a verification statement under the PPSA.
(e) The Customer agrees that, if Chapter 4 of the PPSA applies to the enforcement of the Supplier’s security interests, these provisions of the PPSA will not apply to the enforcement:
(i) section 95, to the extent that it requires the Supplier to give notice to the Customer;
(ii) section 96
(iii) section 130, to the extent that it requires the Supplier to give notice to the Customer;
(iv) section 132(3)(d);
(v) section 132(4);
(vi) section 135;
(vii) section 142; and
(viii) section 143.
(f) The Customer agrees that the Supplier may allocate any payment it receives from the Customer in any manner it determines (despite any purported allocation or appropriation by the Customer), including to satisfy obligations that are not secured, then to satisfy obligations that are secured but are not secured by a purchase money security interest in the order in which those obligations were incurred, and then to satisfy any obligations secured by a purchase money security interest in the order in which those obligations were incurred.
(g) Subject to section 275(7) of the PPSA, neither party may disclose information of the kind referred to in section 275(1) of the PPSA.
(h) Nothing in this clause 3 prevents the transfer of title contemplated in clause 6.2 above, and upon the reasonable request of the Customer, the Supplier agrees to take reasonable steps to give effect to any such transfer of title.
(a) The Customer must comply with all Supplier Policies.
(b) The Supplier must provide or make available to the Customer (via the Website, Technology or other reasonable method) a copy of any Supplier Policy within a reasonable time of such Supplier Policy being made by the Supplier or being made available to the Supplier by a third party.
The Customer must take out and maintain the Insurance Policies and provide to the Supplier a certificate of currency for each Insurance Policy within a reasonable time of the Supplier’s reasonable request.
(a) The Supplier may subcontract any of its obligations under this Agreement without the Customer’s prior consent.
(b) The Supplier remains fully responsible for acts and omissions of its subcontractors in connection with this Agreement, for the duration of the Agreement Term, as if they were the acts and omissions of the Supplier.
(a) In consideration of supply of the Services, the Customer will pay the Supplier the Fees in accordance with these Service Terms and the Customer Agreement.
(b) The Customer agrees and acknowledges that the Supplier may, at its absolute discretion and by reasonable notice to the Customer, increase the Fees payable for the next year. The Supplier will not increase such Fees more than once in any 12 month period.
(a) Unless otherwise expressly provided in the Customer Terms, the Fees are payable by the Customer by monthly instalments in advance.
(b) In the event the Customer does not comply with clause 11(a), then, in addition to any other rights or remedies, the Supplier is entitled in its sole discretion to:
(i) charge the Customer interest on amounts not paid at a rate equivalent to 5% per annum plus the cash rate set by the Reserve Bank of Australia, calculated daily from the due date to the day of payment of the debt;
(ii) suspend all or any part of its obligations under this Agreement without notice to the Customer; and/or
(iii) terminate this Agreement in accordance with clause 23.3.
The Customer is responsible for all Taxes arising from or relating to this Agreement and must pay:
(a) Taxes which are imposed on the Supplier directly to the relevant government agency; and
(b) Taxes which are imposed on the Customer directly to the relevant government agency on behalf of the Supplier,
on or before the latest date that the Tax is due for payment without incurring any penalty or additional tax for late payment.
The Customer agrees to indemnify the Supplier for all Losses and Claims arising as a result of any Tax for which the Customer is responsible pursuant to clause 12.1.
If GST is or becomes payable on any party making a supply (Supplier) under this Agreement, the parties agree that:
(a) consideration for the supply is to be considered exclusive of GST; and
(b) the Supplier may recover from the recipient an additional amount equal to the consideration for the supply multiplied by the prevailing GST rate.
14.1 Supplier Material
(a) The Supplier owns all right, title and interest in and to the Supplier Material.
(b) The Supplier hereby grants to the Customer a non-exclusive, non-transferable, non-sublicensable, non-assignable, perpetual, revocable and Australia-wide licence to use the Supplier Material by and for itself and its End Users, strictly for the Approved Purpose and subject to any rules or policies made available to the Customer in accordance with clause 7(b).
(c) The Customer must not, and must ensure that its employees, officers, agents and End-Users do not, do any of the following:
(i) use the Supplier Material (including the Equipment) for any purpose other than the Approved Purpose;
(ii) to the extent the Supplier Material comprises of Software or Equipment:
(d) The Customer must not engage any other person, contractor, agent or sub-contractor to do any of the actions set out in clause 14.1(c).
14.2 Customer Material
(a) The Customer remains the owner of the Customer Material.
(b) The Customer grants to the Supplier a royalty free, worldwide, non-exclusive license to use, modify and adapt the Customer Material for the Term and strictly for the purpose of performing its obligations under this Agreement.
14.3 Developed Material
(a) The Supplier will own, and the Customer hereby assigns to the Supplier on creation, all existing and future Intellectual Property Rights in and to any Developed Material. The Customer must do all things necessary to assign or transfer ownership of Developed Material to the Supplier.
(b) The Supplier grants to the Customer a royalty free, revocable, worldwide, non-exclusive license to use, the Developed Material for the purposes of the relevant Customer Agreement.
(c) In using the right granted to it by the Supplier in clause 14.3(b), the Customer concedes that it will not be in any way, in breach of its obligations under this Agreement.
(d) The Customer warrants that it will obtain from all authors and holders of any Moral Rights in the Developed Material, consent to the following specific acts or omissions by the Supplier and its successors, assigns or sub-licensees in relation to the Developed Material:
(i) reproducing, publishing, adapting or communicating the Developed Material to the public without attributing their authorship or otherwise identifying the author of the Developed Material; and
(ii) subjecting the Developed Material to a material alteration or doing anything else to the Developed Material, including adapting, reproducing, publishing, communicating to the public, adding, deleting, editing or modifying the text, format or structure of the Developed Material.
14.4 Intellectual Property Rights warranties
(a) The Supplier warrants to the Customer that it has not received notice of, and is not otherwise aware that:
(i) there is any Infringement Claim anywhere in the world;
(ii) the Services infringe any Third Party IP; and
(iii) the Supplier Material infringes any Third Party IP.
(b) The Customer warrants to the Supplier that:
(i) it has not received notice of, and is not otherwise aware of, any Infringement Claim anywhere in the world;
(ii) it has the necessary Intellectual Property Rights and has procured the necessary consents in relation to Moral Rights to grant the Supplier the license under clause 14.2(b); and
(iii) the Customer Material does not infringe, and the Customer or the Supplier's use of the Customer Material as contemplated under this Agreement does not infringe, any Third Party IP.
14.5 Infringement Claim
(a) Subject to any orders made under the law and subject to clause 14.5(b), in the event of an Infringement Claim, the party who is being threatened with or has received an Infringement Claim (Indemnified Party) in relation to the other party's (Indemnifying Party) IP, must:
(i) promptly notify the Indemnifying Party of the Infringement Claim in writing;
(ii) use its best endeavours to mitigate any Loss;
(iii) update and consult with the Indemnifying Party about the progress of the Infringement Claim;
(iv) not make any admissions or take any action in relation to the Infringement Claim without the Indemnifying Party's prior written consent;
(v) permit the Indemnifying Party control over any and all investigations, negotiations, settlement and dispute resolution proceedings relating to the Infringement Claim; and
(vi) cooperate with, assist and act at all times in accordance with the reasonable instructions of the Indemnifying Party, in relation to the Infringement Claim and any consequent investigations, negotiations, settlement and dispute resolution proceedings.
(b) In the event that the Indemnified Party owns the IP which is the subject of the Infringement Claim, then clause 14.5(a) does not apply.
14.6 Customer remedies
(a) In addition to its obligations under clause 14.7(a), if an Infringement Claim is made and the Supplier is the Indemnifying Party, the Supplier must use reasonable commercial endeavours:
(i) to modify the affected Supplier Material, Deliverables and/or Developed Material (as applicable) to avoid any infringement, provided it can do so without adversely affecting performance, functionality and quality of the Services;
(ii) to procure for the Customer all rights required to continue using and exploiting the affected Supplier Material, Deliverables and/or Developed Material (as applicable) without any modification; or
(iii) to procure for the Customer non-infringing replacements for the affected Supplier Material, Deliverables and/or Developed Material (as applicable) provided they are equivalent in performance, functionality and quality.
(b) If the Supplier is unable to accomplish the options in clause 14.6(a)(i) to 14.6(a)(iii) within a reasonable time or within reasonable commercial endeavours, the Supplier must either:
(i) in the event that the parties cannot agree on the terms of 14.6(b)(ii) after a reasonable time has passed, accept return of the affected Supplier Material, Deliverables and/or Developed Material (as applicable) and reimburse the Customer for any fees or other amounts paid by the Customer for the affected Supplier Material, Deliverables and/or Developed Material (as applicable); or
(ii) agree on a new or amended Customer Agreement which enables clause 14.6 to be achieved within reasonable commercial endeavours.
(c) To the fullest extent permitted by law, the liability of the Supplier under this clause 14.6 is limited to the fees paid in accordance with the Customer Agreement under which the Infringement Claim arises.
Each party must indemnify each other party against Losses sustained or incurred by the other party:
(a) as a result of an Infringement Claim; or
(b) directly out of or in connection with the Indemnifying Party's breach of any warranties given by it under clause 14.3,
except to the extent that the Indemnified Party has failed to mitigate its Loss or the Loss is directly attributable to the negligence or wrongful act or omission of the Indemnified Party or its Representatives.
The Customer acknowledges that it is not, nor will it be, the exclusive customer to the Supplier of the kinds of goods and services contemplated by this Agreement and that the Supplier may, at any time and from time to time, perform, provide or engage a third party to perform or provide part of the Services, without the consent of or notice to the Customer provided that the Supplier does so subject to its obligations in relation to Confidential Information pursuant to clause 16.
16.1 Confidentiality obligations
The parties acknowledge and agree that each of them must:
(a) not disclose the other party’s Confidential Information to any person except as permitted under clause 16.2;
(b) only use or copy the other party’s Confidential Information for the purposes of this Agreement; and
(c) take all steps reasonably necessary to secure the other party’s Confidential Information against theft, loss or unauthorised disclosure.
16.2 Permitted disclosures
The Customer or Supplier (Disclosing Party) must not disclose the Confidential Information of the other party except:
(a) to a Representative of the Disclosing Party who needs to know the Confidential Information for the purposes of this Agreement and subject to the Disclosing Party taking reasonable steps to ensure that any such Representative is fully aware of the confidential nature of the Confidential Information of the Disclosing Party before the disclosure is made;
(b) with the other party's prior written consent, which must not be unreasonably withheld;
(c) as required to be disclosed by any law or the listing rules of any stock exchange where that party's securities are listed or quoted; or
(d) as expressly permitted by this Agreement.
16.3 Return and destruction of Confidential Information
Subject to clause 16.4, within 10 Business Days of expiry or termination of this Agreement or at the request of the party to whom the Confidential Information belongs, each party must, at the other party's option, return, erase or destroy any Confidential Information belonging to the other party in all documents and other materials in any medium in the possession or under the power or control of the party or any of its Representatives.
16.4 Return exceptions
If a party must retain the other party’s Confidential Information for the purpose of:
(a) complying with any law;
(c) internal quality assurance and record-keeping; or
(d) performing its obligations or exercising its rights under this Agreement,
it may retain and use it solely for this purpose but must deal with the Confidential Information in accordance with clause 16.3 promptly after it is no longer required for this purpose.
The Supplier may make any press release, announcement or other public notification in relation to these Service Terms, the Customer Agreement or the Services. The Supplier may also use or reproduce any of the Customer’s trade marks or branding for any lawful purpose. In this event, the Supplier shall give written notice to the Customer of such trade mark or branding use (the Branding Use) and where the Customer does not consent to the Branding Use, it must respond to the Supplier to this effect within 10 Business Days. If the Customer fails to give this notice in writing, its consent to the Branding Use shall be deemed given to the Supplier by the Customer.
Each party must:
(a) comply with all Privacy laws in relation to Personal Information, even if a party is not an entity regulated under those Privacy laws;
(b) only collect, store, use, disclose or otherwise deal with Personal Information in accordance with all Privacy laws;
(c) only use or disclose Personal Information to the extent necessary to provide, use or receive the Services or as otherwise expressly permitted under clause 17 of this Agreement;
(d) ensure any person to whom it discloses Personal Information is aware of and complies with the party’s obligations under this clause 16.6; and
(e) not do any act, engage in any practice, or omit to do any act or engage in any practice that:
(i) would result in a breach of a Privacy law if the Privacy law applies to those things done, engaged in or omitted to be done by the party; or
(ii) would cause the other party to breach or be taken to breach a Privacy law.
Each party agrees to indemnify and keep the other party indemnified against all Losses directly incurred by the other party as a result of or in connection with any breach by it of its obligations under this clause 16.
(a) The Customer warrants that it is the owner or licensee of all Intellectual Property Rights in and to the Customer Data.
(b) The Customer grants the Supplier a non-exclusive, non-transferable, royalty-free, worldwide licence for the Term to access, copy, modify and store the Customer Data solely to the extent necessary for the purposes of providing the Services and performing its obligations under these Service Terms or the Customer Terms and warrants that it has the unrestricted right to grant this licence.
(c) The Customer grants the Supplier a non-exclusive, transferable, royalty-free, worldwide, perpetual, irrevocable, sub-licensable and assignable licence to access, store, use, modify, develop, reproduce and otherwise exploit the Customer Data for the purposes of performing analytics, conducting research and developing consumer insights and on the condition the Supplier complies with all Privacy laws.
(d) The Customer warrants that it has the unrestricted right to grant this licence.
17.2 Supplier obligations
If the Supplier deals with any Customer Data in performing its obligations under this Agreement, the Supplier must:
(a) use reasonable endeavours to implement technical and organisational measures to protect the Customer Data from Data Breaches that are appropriate and conform with industry practice data protection techniques;
(b) comply with the Customer’s reasonable directions with respect to the safeguarding and security of the Customer Data;
(c) use reasonable endeavours to protect the Customer Data against any loss or corruption;
(d) not disclose, export or transmit Customer Data to a place outside Australia without the Customer's prior written consent, which must not be unreasonably withheld;
(e) not knowingly use, or make available to a third party, the Customer Data other than as permitted by this Agreement; and
(f) not sell, assign rights in or otherwise dispose of the Customer Data.
The Supplier may permit access to the Customer Data by:
(a) any duly authorised law enforcement officer;
(b) any other person authorised by any law,
and the Customer is responsible for direct and indirect costs associated with granting such access.
If the Supplier or its Representatives directly cause or contribute to any loss, corruption or destruction in the accessibility or useability of the Customer Data, the Supplier must, at its own cost and expense, use its reasonable endeavours to restore such data. This is the entire obligation and remedy for the Supplier's loss of Customer Data.
17.5 Data security
Unless otherwise required by law, if the Supplier:
(a) becomes aware of or suspects a Data Breach; or
(b) is subject to an order made under any law of a foreign government or agency to disclose or transfer any Customer Data,
the Supplier must:
(c) immediately notify the Customer;
(d) provide the Customer with a reasonable level of information sufficient to describe the Data Breach or suspected Data Breach;
(e) provide the Customer with any reasonable assistance required by the Customerfor the purposes of investigating the actual or suspected Data Breach; and
(g) comply with any reasonable direction from the Customer with respect to remedying or avoiding the actual or suspected Data Breach.
17.6 Return, destruction or transition out
(a) Subject to clause 17.6(b), within seven (7) days of termination or expiry of this Agreement, the Supplier must at the Customer’s option:
(i) return all Customer Data and backups in its possession or under its power or control;
(ii) destroy or permanently erase all Customer Data and backups in its possession or under its power or control; or
(iii) provide the Customer reasonable assistance, as determined by the Supplier, to enable the transfer of the Customer Data or backups to the Customer or a third party nominated by the Customer.
(b) If the Supplier needs to retain the Customer Data, copies or backups for the purposes of:
(i) complying with any law;
(iii) internal quality assurance and record-keeping; or
(iv) performing its obligations or exercising its rights under this Agreement,
it may retain and use it solely for this purpose but must deal with the Customer Data in accordance with clause 17.6(a) promptly after it is no longer required for this purpose.
(c) The Supplier may charge the Customer for its reasonable expenses in performing its obligations under this clause 17.6.
(d) The Customer acknowledges all Customer Data and backups may be destroyed or permanently erased if the Customer fails to exercise its option under clause 17.6(a) within the prescribed time by that clause.
Where the Customer becomes aware that it may be the subject of a Change of Control, the Customer shall provide the Supplier with written notification of the same reasonably in advance of any such Change of Control becoming effective. In the event of a Change of Control, the Supplier shall have the right terminate this Agreement by written notice to the Customer.
19.1 Representations and warranties as to capacity
Each party represents and warrants to all other parties that as at the Agreement Commencement Date and for the Term each of the following statements is true in respect of that party and will be true for the Term:
(a) (if a corporation) it is validly incorporated;
(b) (if a corporation) it has taken all corporate action necessary to authorise the execution of this Agreement to render this Agreement legally enforceable in accordance with its terms;
(c) all authorisations and consents, including by any government agency, that are required or will be required to execute and perform the obligations under this Agreement have been lawfully obtained; and
(d) the execution and performance by it of this Agreement does not breach its Constitution, any agreement binding on it or any applicable laws.
19.2 General warranties
Additionally, each party represents and warrants to the other that as at the Agreement Commencement Date and for the Term each of the following statements is true in respect of that party and will be true for the Term:
(a) it has disclosed any and all information concerning it which could reasonably be regarded as affecting the decision of the other party to enter into this Agreement; and
(b) no statement made by it leading up to the Agreement Commencement Date has been misleading or deceptive in any material respect.
19.3 Service warranties
(a) Subject to clause 19.3(b), the Supplier represents and warrants to the Customer that as at the Agreement Commencement Date and at all times during the Term that, to the best of its knowledge and to an extent reasonably expected of the type and complexity of the Deliverables and the Services, all Deliverables and Services supplied will substantially be in conformity with any Specifications or representations made by the Supplier in writing and will be materially free from defects and omissions in material, design or workmanship.
(b) The Supplier makes no further warranty. Without limitation, it does not warrant that the Services will be uninterrupted or available at all times.
(c) The representations made and warranties given by the Supplier under clause 19.3(a) do not operate where the substantial non-performance of the Services or any Deliverables arises in respect from the nature or operation of the equipment on which the Services or Deliverables are used or the use of any materials or software not provided by the Supplier.
Without limiting any other rights a party may have, including under any other provision of this Agreement, an Indemnifying Party is liable for and indemnifies the Indemnified Party against any Loss or Claim incurred or suffered by the other party as a direct result of:
(a) any breach of this Agreement by the Indemnifying Party or its Representatives;
(b) any unlawful, fraudulent or negligent act or omission of the Indemnifying Party or its Representatives;
(c) any death or personal injury caused or contributed to by any act or omission of the Indemnifying Party or its Representatives; or
(d) any damage to or loss or destruction of real or personal property caused or contributed to by any act or omission of the Indemnifying Party or its Representatives,
except to the extent the Loss or Claim is directly attributable to the negligence or wrongful act or omission of the other party or its Representatives.
20.2 Limitation on liability and exclusion of Consequential Loss
(a) Subject to clause 20.2(c), to the fullest extent permitted by law, the total aggregate liability of a party to the other party under or in connection with this Agreement in respect of all Losses and Claims is limited to the Liability Cap Amount.
(b) Subject to clause 20.2(c):
(i) neither party is liable to the other for any kind of Consequential Loss arising out of or in connection with this Agreement; and
(ii) The Supplier is not liable for any loss to the extent that the loss is directly or indirectly attributable to the Customer’s breach of any part of this Agreement or the Customer’s (or End-User’s) use of any aspect of the Services for any purpose other than the purposes expressly set out in this Agreement.
(c) The limitations and exclusions in this clause 20.2 do not apply to a party's liability for Loss suffered or incurred by the other party in respect of:
(i) any unlawful, fraudulent or negligent act or omission;
(ii) death or personal injury;
(iii) damage to or loss or destruction of real or personal property;
(iv) any Infringement Claim; or
(v) breach by a party of clause 14 or clause 16.
20.3 Implied terms
(a) Subject to clause 20.3(b), any condition or warranty which would otherwise be implied in this Agreement is excluded.
(b) Pursuant to s 64A of the Australian Consumer law, this clause applies in respect of any services that are not of a kind ordinarily acquired for personal, domestic or household use or consumption. 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:
(i) to the cost of re-supplying the Services; or
(ii) making full payment for the cost of re-supplying the Services.
20.4 Australian Consumer law
Nothing in this Agreement is intended to limit or exclude the Customer’s consumer guarantees under the Australian Consumer law.
21.1 Consequences of a Force Majeure Event
If a party is directly and adversely affected by a Force Majeure Event, a party is excused from performing its obligations under this Agreement (other than its obligation to pay money and provide requisite notice) for the period of delay arising directly from that Force Majeure Event.
A party affected by a Force Majeure Event must as soon as practicable provide notice to all other parties specifying the date and nature of the Force Majeure Event, as well as the anticipated duration of the suspension of its obligations under this Agreement.
21.3 Mitigation and resumption of obligations
A party affected by a Force Majeure Event must:
(a) use all reasonable efforts to overcome the effects of the Force Majeure Event; and
(b) resume performance of its obligations under this Agreement as soon as possible after the Force Majeure Event has abated to the extent necessary to permit a resumption of performance.
21.4 Party not liable for damages
Without limiting the generality of clause 21.1, it is acknowledged and agreed by the parties that, where a party is prevented from complying with its obligations under this Agreement as a result of a Force Majeure Event, that party is not liable for Loss of any kind, including for Consequential Loss, arising out of or resulting directly from that failure to comply.
21.5 Termination following a Force Majeure Event
If a Force Majeure Event prevents the performance of one or more of the obligations under this Agreement and the delay caused by the Force Majeure Event continues for a period of 30 days, any party may by written notice to all other parties terminate this Agreement without liability for breach of contract.
21.6 Consequences of termination following a Force Majeure Event
Where this Agreement has been terminated in accordance with clause 21.4, all money previously paid under this Agreement and for which goods, services or other consideration has not been received, must be refunded within 60 days after termination, unless the recipient for that money elects otherwise.
(a) The parties must use their reasonable endeavours to resolve through negotiation all disputes, conflicts (including, without limitation, conflicts of interest), differences or questions between them arising out of or in connection with this Agreement.
(b) If, within 10 Business Days of the dispute arising, the dispute cannot by resolved following negotiation between the parties, either party may refer the dispute for arbitration.
(c) The parties agree to negotiate in good faith to agree on the appointment of a single arbitrator, or failing agreement as appointed by the President of the law Institute of Victoria (if all the parties are situated in Australia) or (where one or more of the disputing parties is not situated in Australia) to an arbitrator appointed by the Australian Centre for International Commercial Arbitration Court (ACICA).
(d) The arbitration will be conducted in Australia in accordance with the ACICA Rules operating at the time the dispute is referred to ACICA (the Rules).
(e) The terms of the Rules are deemed incorporated into this Agreement.
(f) If a party fails to adhere to the terms of this clause 22 and proceedings are subsequently issued by the party (Defaulting Party), this Agreement can be used as a bar to any proceedings so issued.
(g) The Defaulting Party must indemnify the non-defaulting party for all Losses (on a full indemnity basis) incurred or sustained by the non-defaulting party as a result of or in connection with the Defaulting Party failing to adhere to the terms of this clause 22.
23.1 Termination for cause
In addition to any other express right of termination granted to a party under these Service Terms, either party may terminate this Agreement by giving notice with immediate effect if the other party:
(a) commits a breach of any of its material obligations under this Agreement, and if the breach is capable of remedy, does not remedy that breach within thirty (30) days after receipt of notice of the breach or any further time allowed by the party;
(b) breaches any warranty or representation under this Agreement; or
(c) suffers an Insolvency Event.
23.2 Consequences of termination by the Customer for Supplier's default
(a) If the Customer terminates this Agreement under clause 23.1 then the Customer:
(i) will not be required to make any payment in respect of Services or Deliverables not yet supplied on the effective date of termination;
(ii) may recover from the Supplier all money paid for any Services or Deliverable, or part of a Service or Deliverable, not yet supplied.
(b) After exercising its rights under this clause 23.2, the Customer must pay the net amount outstanding to the Supplier.
23.3 Termination by the Supplier for the Customer’s default
The Supplier may immediately terminate this Agreement by notice to the Customer, if:
(a) the Customer fails to make payment of any amounts due under this Agreement; and
(b) the Supplier issues a notice to the Customer that it intends to terminate this Agreement pursuant to this clause 23.3 if payment of the outstanding amount, plus interest, is not received within fourteen (14) days of the Customer receiving the notice; and
(c) the Customer fails to make payment of the outstanding amount plus interest within fourteen (14) days of receiving a notice in accordance with this clause 23.3.
23.4 Effect of termination
(a) If this Agreement is terminated by the Supplier under clause 23.1 or clause 23.3, all money owing by the Customer to the Supplier under this Agreement will immediately become due and payable by the Customer to the Supplier.
(b) On termination or expiry of this Agreement, the Supplier will comply with its obligations under clause 16.3 and clause 17.6 provided that the Customer has paid all money owed to the Supplier under this Agreement.
(c) The parties agree and acknowledge that:
(i) termination of this Agreement will not result in the termination of, or otherwise affect the terms applicable to, any licence granted under this Agreement (except to the extent this Agreement expressly provides for such termination or where the term of any such licence is expressly stated to be equivalent to the Term); and
(ii) the terms and conditions of this Agreement relevant to each such licence will continue to apply notwithstanding termination of this Agreement.
23.5 Preservation of rights
On termination of this Agreement under this clause 23, each party retains its rights against the other parties in respect of any past breach, in addition to any other rights, powers or remedies provided by law.
(a) A notice or other communication connected with this Agreement (Notice) has no legal effect unless it is in writing and signed by the sender or a person authorised by the sender.
(b) In addition to any other method of service provided by law, the Notice may be sent by email to the email address of the addressee.
(a) is the entire agreement and understanding between the parties on everything connected with the subject matter of this Agreement; and
(b) supersedes any prior agreement or understanding on anything connected with that subject matter.
Waiver of any power or right under this Agreement:
(a) must be in writing, signed by the party entitled to the benefit of that power or right; and
(b) is effective only to the extent set out in the written waiver.
(a) The Supplier may assign this agreement by reasonable notice to the Customer.
(b) The Customer must not assign or deal with this Agreement, except with the prior written consent of the Supplier, which consent must not be unreasonably withheld.
(c) The Supplier does not unreasonably withhold its consent if it requires:
(i) the Customer to pay all expenses (including legal costs) incurred by the Supplier in investigating the proposed assignee or in connection with the proposed assignment; or
(ii) the proposed assignee to agree in writing with the Supplier to comply with this Agreement as if it were an original party to this Agreement.
(d) In this clause, 'assign' includes:
(i) sell, transfer, licence, franchise, subcontract or otherwise dispose or part with possession of; and
(ii) mortgage, charge, grant a lien pledge, declare a trust in respect of or grant any interest in, or encumber, by way of security or otherwise.
Each party must bear its own legal, accounting and other costs associated with the preparation and execution of this Agreement.
This Agreement does not create a relationship or agency, contractor, partnership, joint venture or employment between the parties. No party may act or hold itself out as having the authority to act as the agent or representative of another party or in any way bind or commit another party to any obligation.
This Agreement may be executed in any number of counterparts and all counterparts constitute an original document and when taken together will constitute one document.
An amendment or variation to the Customer Agreement or Customer Terms is not effective unless it is in writing and signed by all the parties. We may change these Service Terms at any time, and if we make changes then we will take reasonable steps to let our Customers know about the changes.
Part or all of any provision of this Agreement that is illegal or unenforceable will be severed from this Agreement and will not affect the continued operation of the remaining provisions of this Agreement.
The rights, powers and remedies provided in this Agreement are in addition to those provided by law independently of this Agreement and each right, power and remedy provided in this Agreement (including any right of indemnity) is additional to and not exclusive of every other right, power or remedy provided in this Agreement
Termination or expiration in whole or in part of this Agreement does not affect those provisions and those obligations of a party which by their very nature survive termination, including clause 12.2, clause 14.3, clause 14.5, clause 14.7, clause 16, clause 17.6, clause 20, clause 23.4, clause 24, clause 32, clause 34 and clause 35.
(a) This Agreement is governed by and is to be construed in accordance with the laws applicable in the State of Victoria, Australia.
(b) The parties submit all matters arising out of or in connection with this Agreement to the State of Victoria, Australia.
Last update of these Terms and Conditions: 4th June 2019