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Software Licence Agreement

Schedule

The BenchmarCX Platform is owned and operated by Talentrich Pty Ltd ACN 648 557 117 as trustee for TR Trust ABN 27 866 332 428. The terms and conditions which are attached are incorporated into this Schedule and together form the Agreement between the parties that governs access to and use of the Platform (as defined below) by the Client.

Provider Name: Talentrich Pty Ltd ACN 648 557 117 as trustee for TR Trust ABN 27 866 332 428

Address: 26 Acacia Street, Holloways Beach, QLD, 4878

Email: steve@talentrich.com.au

 

Client: As per the details submitted when signing up online.

Subscription Term - 12 Months

 

Automatic Renewal terms: this Agreement will automatically renew on each annual renewal date, subject to the terms of the Agreement.

Commencement Date - Upon Sign up.

Subscription Access / Platform subscription access

The Client’s subscription is granted to Authorised Users as detailed in the online pricing table.

Each Authorised User will be given one Account to access the Platform.

Access is granted to each Authorised User solely while they are Personnel of the Client (or authorised by the Provider). Upon their cessation, their licence to access the Platform immediately ceases and the Client is responsible for informing the Provider in writing that the Authorised User no longer falls within the definition of Personnel and their access should be terminated.

Changes to subscription access

The Client may increase the number of Authorised Users upon giving the Provider written notice and paying the applicable fees advised by the Provider for the additional Authorised Users.

.

Fees

Annual subscription – as detailed in the online pricing table and submitted order form by client.

 

Client agrees to provide their logo to be placed within the customer listings on the BenchmarCX website and to be used in promotion of the platform.

Terms and Conditions

1.            Definitions and Interpretations

1.1           Definitions

In this Agreement unless inconsistent with the context or subject matter the following terms have the corresponding definitions:

(a)            Account: an account enabling the Client and an Authorised User to access and use the Platform.

(b)            ACL: the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth)).

(c)            Address for Service: the email address for each party as set out in the Schedule, or such other address for service advised by the party to the other parties in writing from time to time.

(d)            Agreement: this Software Licence Agreement and the Schedule and any amendments to this Agreement from time to time.

(e)            Applicable Laws: any laws governing or affecting the arrangements contemplated by this Agreement.

(f)             Authorised User: such persons authorised to use the Platform in accordance with the Schedule.

(g)            Client: the person or entity whose details are provided upon sign up via the Benchmarcx website

(h)            Client Data: all data, files, works and materials posted on the Platform by the Client (or Authorised Users or End Users), transmitted by the Platform at the instigation of the Client (or Authorised Users or End Users), or supplied by the Client (or Authorised Users or End Users) to the Provider for transmission by the Platform, but excludes the Platform Materials.

(i)              Commencement Date: the date set out in the Schedule.

(j)              Confidential Information: of a party means all information (in any form):

(i)             relating to or arising from the Services (including the Client Data for the Client);

(ii)            that concerns a party's business operations and which any reasonable person would consider to be of a confidential nature (such as trade secrets, methods, strategies, client lists, pricing, and other business processes); and

(iii)           includes this Agreement;

but does not include information that:

(iv)           is or becomes independently developed or known by the other party through no breach of the Agreement by that party; or

(v)            becomes publicly available without breach of this Agreement.

(k)            Corporations Act: the Corporations Act 2001 (Cth).

(l)              End User: an end user of the Platform that does not have access to any of the Client’s Accounts.

(m)          End User Licence Agreement: the End User Licence Agreement which applies to all End Users of the Platform, a copy of which is contained on the Platform, and as amended from time to time.

(n)            Fee: any fees payable by the Client to the Provider to use the Services in accordance with clause 5, including the Subscription Fee and any other fees and charges payable by the Client to the Provider under this Agreement.

(o)            Force Majeure Event: events, circumstances or causes beyond a party’s reasonable control including (but not limited to):

(i)             strikes, lock-outs or other industrial action;

(ii)            civil commotion, riot, invasion, cyber-attack, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;

(iii)           fire, explosion, storm, flood, earthquake, subsidence, epidemic, pandemic (including COVID-19), health emergencies, disease, or other natural disaster;

(iv)           impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;

(v)            interruption or failure of utility services (including the inability to use public or private telecommunications networks);

(vi)           interruption of networks or third party services (including telecommunication or web services); and

(vii)          the acts, decrees, legislation, regulations or restrictions of any Government Agency,

however does not include a lack of funds.

(p)            Government Agency: any government or governmental, administrative, monetary, fiscal or judicial body, department, commission, authority, tribunal, agency or entity in any part of the world.

(q)            GST Law: has the same meaning as GST Law in the A New Tax System (Goods & Services Tax) Act 1999 (Cth).

(r)             Insolvency Event:

(i)             a controller (as defined in section 9 of the Corporations Act), administrator or similar officer is appointed in respect of a person or any asset of a person;

(ii)            a liquidator or provisional liquidator is appointed in respect of a person;

(iii)           any application (that is not withdrawn or dismissed within seven days is made to a court for an order, or an order is made, or a meeting is convened or a resolution is passed, for the purpose of (i) appointing a person referred to in paragraph (i) or (ii) of this definition; (ii) winding up or deregistering a person; or (iii) proposing or implementing a scheme of arrangement of a person, other than with the prior approval of the Agent under a scheme of arrangement pursuant to Part 5.1 of the Corporations Act;

(iv)           any action, proceedings, procedure or step is taken for the purpose of implementing or agreeing (i) a moratorium of any indebtedness of a person; (ii) any other composition, compromise, assignment or arrangement with any creditor or creditors of a person; or (iii) any similar proceeding or arrangement by which the assets of a person are subjected conditionally or unconditionally to the control of its creditors or a trustee;

(v)            any event occurs in relation to a person in any jurisdiction that is analogous, or has a substantially similar effect, to those set out in paragraphs (i) to (iv) of this definition (inclusive); or

(vi)           a person is or admits in writing that it is, or is declared to be, or is taken under any applicable law to be (for any purpose), insolvent or unable to pay its debts.

(s)            Intellectual Property Rights: all present and future rights conferred by law in or in relation to copyright, trade marks, designs, patents, circuit layouts, plant varieties, business and domain names, inventions and confidential information, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields whether or not registrable, registered or patentable.

These rights include without limitation:

(i)             all rights in all applications to register those rights;

(ii)            all renewals and extensions of those rights; and

(iii)           all rights in the nature of those rights, such as moral rights.

(t)             Loss: any loss, liability, cost (including legal costs on a solicitor and own client basis), charge, expense, tax or damage of any nature whatsoever, including lost profits, loss of goodwill, loss of business, loss of production and any other special, incidental, exemplary, compensatory or consequential damages, losses or expenses (howsoever arising or caused, including, without limitation, negligence).

(u)            Personnel: the directors, officers, employees, contractors, suppliers, advisers or agents of a party. 

(v)            Platform: means the platform under the name “The Circle Back Initiative Survey” and its related websites, products and services.

(w)           Platform Materials: all materials, documentation and information (whether reduced to written form or otherwise) provided to the Client by the Provider at any time and includes such materials set out under clause 6.1.

(x)            Provider: The entity whose details are set out in item 1 of the Schedule.

(y)            Policy: means any policy of the Provider in place from time to time.

(z)            Privacy Legislation: means the Privacy Act 1988 (Cth), including Australian Privacy Principles, and the guidance and codes of practice issued by the Office of the Australian Information Commissioner from time to time.

(aa)         Privacy Policy: means the privacy policy of the Provider as accessible on the Platform.

(bb)         Related Entity: has the meaning given in section 9 of the Corporations Act.

(cc)          Schedule: means the Schedule as attached to this Software Licence Agreement.

(dd)         Services: means any services that the Provider provides to the Client, including without limitation the Platform.

(ee)         State: Queensland, Australia.

(ff)            Subscription Fee: the subscription fees payable by the Client for access to the Platform.

(gg)         Term: means the term of this Agreement, commencing and expiring in accordance with its terms.

1.2           Interpretation

In this Agreement the following rules of interpretation apply, unless the contrary intention appears or context otherwise requires:

(a)            Headings and subheadings are for convenience only and do not affect the interpretation of this Agreement.

(b)            References to clauses, schedules, annexures, appendices, attachments and exhibits are references to the clauses of, and the schedules, annexures, appendices, attachments and exhibits to, this Agreement.

(c)            References to parties are references to the parties to this Agreement.

(d)            References to a party to any agreement or document include that party’s permitted assignees and successors, including executors and administrators and legal representatives.

(e)            Words denoting the singular include the plural and words denoting the plural include the singular.

(f)             Words denoting any gender include all genders.

(g)            The word ‘person’ includes any individual, corporation or other body corporate, partnership, joint venture, trust, association and any Government Agency.

(h)            A reference to a body (other than a party to this Agreement), whether statutory or not, that ceases to exist or has its powers or functions transferred to another body is a reference to the body that replaces it or that substantially succeeds to its powers or functions.

(i)              A reference to any agreement or document (including this Agreement) includes any amendments to or replacements of that document.

(j)              A reference to a law includes:

(i)             legislation, regulations and other instruments made under legislation and any consolidations, amendments, re-enactments or replacements of them;

(ii)            any constitutional provision, treaty or decree;

(iii)           any judgment;

(iv)           any rule or principle of common law or equity,

and is a reference to that law as amended, consolidated, re-enacted, replaced or applied to new or different facts.

(k)            Any promise, agreement, representation or warranty given or entered into on the part of two or more persons binds them jointly and each of them severally.

(l)              Any promise, agreement, representation or warranty given or entered into on the part of two or more persons is for the benefit of them jointly and each of them severally.

(m)          No provision of this Agreement will be construed adversely to a party because that party was responsible for the preparation of that provision or this Agreement.

(n)            If a period of time begins on a given day or the day of an act or event, it is to be calculated exclusive of that day.

(o)            A reference to time is a reference to time in the capital city of the State.

(p)            A reference to a day is a reference to a day in the capital city of the State.

(q)            A reference to a day is to be interpreted as the period of time commencing at midnight and ending 24 hours later.

(r)             If any act is required to be performed under this Agreement by a party on or by a specified day and the act is performed after 5.00 pm on that day, the act is deemed to be performed on the next day.

(s)            If any act is required to be performed under this Agreement on or by a specified day and that day is not a business day, the act must be performed on or by the next business day.

(t)             A reference to an amount of dollars, Australian dollars, $ or A$ is a reference to the lawful currency of the Commonwealth of Australia, unless the amount is specifically denominated in another currency.

(u)            Specifying anything in this Agreement after the terms ‘include’, ‘including’, ‘includes’, ‘for example’, ‘such as’ or any similar expression does not limit the sense of the words, description, definition, phrase or term preceding those terms unless there is express wording to the contrary.

(v)            Where this Agreement is executed for a party by an attorney, the attorney by executing it declares that the attorney has no notice of revocation of the power of attorney.

(w)           This Agreement includes all schedules, annexures, appendices, attachments and exhibits to it.

(x)            A reference to writing or written includes email.

(y)            Where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.

2.            Use of the Platform

2.1           The Platform is a software solution that allows the Client to generate and send out surveys to End Users. The Platform then collates the data collected from survey responses of End Users and presents it on the Platform for the Client.

2.2           Although the Platform is provided to assist the Client in obtaining the feedback of End Users, the Client acknowledges and agrees that:

(a)            due to the nature of software, is unable to guarantee the data accuracy of any information generated (including any reports and analytics);

(b)            as the Platform relies on input from the Client and End Users the Provider will not be liable for any data inaccuracies or faults on the basis of input by the Client and End Users; and

(c)            the Provider makes no representations about the suitability of the Platform for any purpose.

2.3           In providing Client Data to the Platform, the Client acknowledges and agrees that they are authorised to disclose such information and that, without the Provider taking any further steps required by applicable data protection or privacy laws, is able to collect, use and disclose such Client Data for the purposes described in the Provider’s Privacy Policy.

2.4           The Platform is available only to persons who can form legally binding contracts under Applicable Laws.

3.            Subscription to the Platform

3.1           Subscription Term

(a)            This Agreement shall commence on the Commencement Date and continue for the duration of the Client’s subscription to the Platform. Subscription to the Platform will run on an annual basis from the Commencement Date (provided the initial payment of the Subscription Fee is made) and will automatically renew on each annual renewal date (being the anniversary of the commencement of the Client’s subscription), unless the Client cancels their subscription before the annual renewal date. The Client authorises the Provider to store the Client’s payment method and to automatically charge the Subscription Fee for each renewed year.

(b)            The Client may terminate their subscription and this Agreement at any time on giving written notice to the Provider, however, the termination will only take effect at the end of the then current annual subscription term. Subject to the terms of this Agreement, the Client will continue to have access to the Platform until expiry of the current annual subscription term.

3.2           Trial Programs

(a)            The Provider may offer a trial program to the Client, at its discretion.

(b)            In the event that the Provider offers a trial program to the Client, then unless the Client cancels their subscription before the end of that trial program, then following the trial program the Client’s subscription will automatically transition into an annual subscription (referred to in clause 3.1) and the Client authorises the Provider to automatically charge the Subscription Fee.

(c)            The Client agrees to comply with any restrictions or limitation placed on their Account during the trial program.

3.3           Subscription access & limitations

(a)            Subject to the Client’s compliance with the terms of this Agreement, the Provider hereby grants to the Client the non-exclusive, non-transferable, revocable right to use the Platform during the Term in accordance with the terms of this Agreement and the Schedule (which forms part of this Agreement). The type of subscription as well as the rights granted to the Client will be as set out in the Schedule.

(b)            The right to use the Platform as granted under this clause is granted to:

(i)             the Client and its Authorised Users for access to the Accounts subject to any restrictions and limitations as specified in the Schedule (or as modified in accordance with this Agreement); and

(ii)            End Users (such as candidates) in accordance with clause 3.4.

(c)            The Client is solely responsible for ensuring its Authorised Users comply with the provisions of this Agreement, and a breach by any of the Authorised Users of this Agreement, will be deemed to be a breach by the Client.

(d)            The Client is strictly prohibited from granting access to any other person (except as permitted under this Agreement to its Authorised Users and End Users) and must ensure that no competitor of the Provider (including any person who provides form based quotations) gains access to or use of the Platform.

3.4           End Users

(a)            The Client is permitted to send the generated surveys to End Users, in the manner and method as advised by the Provider from time to time. For the avoidance of doubt, the Client must not permit End Users to access the Client’s Account or the Platform in any other manner.

(b)            All End Users of the Platform must agree to and will be bound by the End User Licence Agreement, and the Client is solely responsible for ensuring that they do so, and is solely responsible for all actions and omissions of all End Users. In the event that any End User does not agree to the End User Licence Agreement, they must not use the Platform.

3.5           Access restrictions

(a)            Except to the extent expressly permitted in this Agreement, the right granted by the Provider to the Client under clause 3.3 is subject to the following prohibitions:

(i)             the Client must only sub-license its right to access and use the Platform to Authorised Users in accordance with this Agreement;

(ii)            the Client must only use the Platform as it is intended;

(iii)           the Client must not directly or indirectly copy, reproduce, share, republish, frame, download, transmit, distribute, sell, reverse engineer, decompile, translate, alter, modify, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Platform or any software, documentation or data related to the Services (except to the extent expressly permitted by Provider or authorised within the Platform);

(iv)           the Client must not create derivative works based on the Platform (except to the extent expressly permitted by Provider or authorised within the Platform); and

(v)            the Client must not make any alteration to the Platform.

4.            Account

4.1           In order to use the Platform, the Client must have their own Account. The Provider will allocate the number of Accounts as required by the Client to be accessed by Authorised Users in accordance with the Schedule. In using the Account:

(a)            the Client (and each Authorised User) must not use false or misleading information and must update their details should they have changed from the last time they used the Platform;

(b)            the Client (and each Authorised User) must follow any password policies made available by the Provider from time to time (and as are stated on the Platform from time to time);

(c)            the Client (and each Authorised User) is responsible for the security of its username and password and the Provider will assume that anyone using the Client’s (and each Authorised User’s) Account is authorised to do so by the Client and the Client is responsible for their actions. Under no circumstances will unauthorised access and use of the Client’s Account reduce the Client’s liability to the Provider; and

(d)            the Client must notify the Provider immediately if it becomes aware of any unauthorised use of its Account or other security breach.

5.            Fees

5.1           Fees & Billing Cycle

(a)            The Client must pay the Provider the Subscription Fee, in advance in accordance with the payment terms set out in the Schedule (with the first payment due on or before the Commencement Date). The Subscription Fee payable by the Client for their subscription to the Platform and any other charges the Client may incur in connection with their use of the Platform is as set out in the Schedule.

(b)            The Client may elect to participate in certain add-ons or functionality of the Platform which must be paid for in accordance with the terms of this Agreement.

(c)            In the Provider’s sole discretion, the Provider may offer free or discounted pricing for various Services accessible on the Platform. The terms of such use and any limitations will be as specified by the Provider at the time the Service is accessed. If the Provider offers the Client a trial program, once the terms of that trial program have expired the Client agrees that the Provider’s normal billing rates shall apply. The Client agrees to comply with any restrictions or limitations placed on their Account during any free or discounted pricing term.

5.2           Payment method

(a)            Payment of the Fees is to be made via electronic funds transfer to the Provider’s nominated bank account unless the Provider permits the Client to pay using another payment method.

(b)            If the parties have agreed that the Fees will be paid via a direct debit arrangement, then the Client irrevocably authorises the Provider to debit the Fees during the term from the Client’s nominated bank account/credit card/debit card (“Debit Account”), on or about the due date for payment without notice to the Client. The Client must ensure that the Debit Account details are up to date at all times and the Client must notify the Provider in the event that the details are no longer current, and provide replacement details. The Client also irrevocably authorises the Provider to deduct all other fees and charges payable by the Client to the Provider under this Agreement from the Client’s nominated Debit Account. The Client warrants that the Client is the owner or has the right to use any Debit Account details provided to the Provider. Default charges will apply in the event that the Client stops the authority to charge the Debit Account without acceptance by the Provider.  Insufficient funds in the Debit Account will also attract a fee.

5.3           Overdue Payments

(a)            Where any part of the Fees or other monies payable by the Client under or in connection with this Agreement are not paid by its due date, the Provider reserves the right to:

(i)             suspend the Client’s access (including the access of its Authorised Users) to the Platform until all overdue amounts (including interest) are received by the Provider in cleared funds; and

(ii)            charge the Client interest on the overdue amount at the rate of 12% per annum accruing daily and compounding monthly until payment is received in full.

(b)            The Client acknowledges that the Provider may not grant the Client access to the Platform until they have received payment of all required Fees payable in cleared funds.

5.4           Increase in fees

The Provider reserves the right to increase any Fees (including the Subscription Fee) on giving the Client at least 30 days’ written notice (Notice Period) with such increase to take effect on expiry of the Notice Period. If the Client does not agree to the increase, the Client may terminate this Agreement, provided it gives notice to terminate before expiry of the Notice Period. In the event the Client terminates under this clause, the Provider will provide a pro-rata refund of any prepaid fees paid by the Client for the remainder of the subscription term.

5.5           General

(a)            The Client must pay all Fees and other amounts without set-off or claim under any circumstance including if a dispute exists.

(b)            All amounts stated in or in relation to this Agreement are, unless the context requires otherwise, stated exclusive of GST, which will be added to those amounts and payable by the Client to the Provider.

(c)            Depending on the method of payment the Client uses to pay the Fees, additional charges may be incurred (such as a small credit card processing charge).

(d)            All amounts paid by the Client are non-refundable to the extent permitted by law.

6.            Surveys, reports and benchmarks

6.1           The Client acknowledges that access to the Platform includes access to:

(a)            surveys, including those default templates generated by the Provider, and any additional questions added or templates generated by the Provider or the Client;

(b)            reports and benchmarks that are generated from the collated data provided by the surveys, and published on the Platform,

(collectively referred to as the Platform Materials).

6.2           The Client acknowledges that the Provider shall retain all ownership of the Platform Materials. For the avoidance of doubt, the Provider shall own all surveys including all content contained therein regardless of whether the Client had made them, or gave any input into making them.

6.3           The Provider will provide the Client with access to the Platform Materials during the Term as part of the licence to the Platform in accordance with the terms of this Agreement. The Client acknowledges that the licence granted to the Platform and Platform Materials is limited to the front-end only and any back-end matters (such as customisation) may only be performed by the Provider as set out in clause 6.4. Without limiting this clause, the Client acknowledges and agrees that:

(a)            access is granted to standard survey templates only and that customisation of surveys is to take place in accordance with clause 6.4. The limitations on the ability for the Client to customise any surveys will be as advised by the Provider from time to time;

(b)            access is granted to reports, benchmarks and any other information on the Platform only in the format which the Provider makes available on the Platform. The Client acknowledges that it (as well as each Authorised User) does not have access to any raw survey data or results including without limitation any individual End User’s survey results; and

(c)            reports and benchmarks are generated from data that is collected of End Users. Please note that there are limitations as to what the reports and benchmarks are able to show. For example, the Platform does not benchmark or provide any reports for any customised surveys created by the Client. The limitations will be as advised by the Provider from time to time.

6.4           Should the Client require customised surveys or other customisations to the Platform Materials and/or the Platform (that they are restricted from accessing) then the Client may request the Provider provide such customisations, and the Provider may accept or reject such request at its sole discretion. If the Provider accepts such requests then it will provide an additional quote (with additional fees if required to be paid as advised by the Provider at the time of request) and if accepted by the Client, an invoice will be issued to accommodate these changes.

6.5           The Provider reserves the right to make changes to the Platform which are necessary to comply with Applicable Laws, Government Agency requests or safety requirements

7.            Client obligations - Platform

7.1           The Client acknowledges and agrees that it will:

(a)            only use the Platform in accordance with the terms of this Agreement and any Policy; and

(b)            not use the Platform in any way that causes, or may cause, damage to the Platform or impairment of the availability or accessibility of the Platform.

7.2           The acts and omissions of any Authorised User are deemed to be the acts and omissions of the Client and the Client is liable for its Authorised Users and must ensure that they comply with the Client’s obligations in respect of the use of the Platform.

7.3           The Client’s use of the Platform and the Services, including the information submitted on the Platform and the Services, must not (and they must ensure that its Authorised Users use and information must not):

(a)            be false, inaccurate, misleading, fraudulent, deceptive or unlawful;

(b)            be in any manner which could damage, disable, overburden, or impair the Platform or interfere with any other party's use and enjoyment of this Platform;

(c)            be in any manner to phish or deceptively obtain information of other users on the Platform;

(d)            impersonate or otherwise misrepresent the Client’s identity or affiliation with any other person or entity;

(e)            be for purposes of junk, obscene, indecent, offensive or threatening electronic mail or electronic mail in contravention of the Spam Act 2003 (Cth) or to attract, lure or illegally obtain information from other users on the Platform;

(f)             infringe any third party’s rights or violate any Applicable Laws;

(g)            contain any viruses or similar which could affect the integrity, operation or security of the Platform; 

(h)            create liability for the Provider or cause the Provider to lose (in whole or in part) the services or custom of our internet service provider, other clients, users or other suppliers;

(i)              damage the credibility or integrity of the Platform or the Provider, or dilute, tarnish, or otherwise harm the Provider’s brand in any way; or

(j)              interfere with or disrupt the Platform or servers or networks connected to the Platform, or disobey any requirements, procedures, policies, or regulations of networks connected to the Platform.

7.4           Whilst using the Platform and the Services, the Client must not, and must ensure that its Authorised Users do not:

(a)            attempt to gain unauthorised access to the Platform or computer systems or networks connected to the Platform through any means;

(b)            commit forgery (or attempted forgery), harass any individual, or harm minors in any way;

(c)            collect, store, input, upload, post, disclose or transmit personal information or data about others, including, without limitation email addresses

(d)            breach or violate any of the Provider’s policies; 

(e)            falsify or delete any attributions, legends, or other proprietary designations of origin or source of any content of the Platform;

(f)             copy, store or otherwise access or use any information contained on the Platform for purposes not expressly permitted by this Agreement;

(g)            use the Platform for any purposes that are not permitted by this Agreement or in any way that is inconsistent with the purpose of the Platform, or in a manner that falsely implies the Provider’s endorsement, partnership or otherwise misleads others as to the Client’s affiliation with the Provider;

(h)            attempt to circumvent payment of any fees in anyway;

(i)              tamper with, hinder the operation of or make unauthorised modifications to the Platform or any part thereof;

(j)              damage or modify the Platform or the Platform or any part thereof; or

(k)            circumvent, disable or otherwise attempt to interfere with any security related features.

8.            Platform

8.1           Maintenance

(a)            The Provider reserves the right to provide general maintenance services to the Platform including updating and upgrading the Platform during the Term as the Provider considers necessary from time to time. The Client acknowledges and agrees that the Platform may occasionally be unavailable during periods of planned or unscheduled critical and urgent maintenance or updates or upgrading.

(b)            The Provider will provide the Client with the following notice in the event any maintenance services will or are likely to result in any downtime to the Platform:

(i)             if the maintenance services are critical, urgent and it is not reasonably practicable for the Provider to provide any notice – No notice will be provided;

(ii)            otherwise – the Provider will endeavour to provide at least 5 business days’ notice.

8.2           Support & Service Levels

(a)            The Provider shall use reasonable endeavours to maintain the availability of the Platform to the Client but provides no guarantee as to the availability and/or the uptime of the Platform. The Provider will not be in breach of these Terms and Conditions if it fails to provide any level of availability, nor will it be liable for any Loss suffered by the Client or any other person in this regard.

9.            Intellectual Property Rights

9.1           The Platform and Platform Materials

(a)            The Provider shall at all times retain all title, rights and interest in and to the Platform and Platform Materials including:

(i)             the Intellectual Property Rights subsisting in each;

(ii)            any customisations of, modifications to, and additions to, the Platform and Platform Materials to suit the Client’s individual needs;

(iii)           information or data, source codes and other information technology relating to or connected with the Services or Platform Materials;

(iv)           marketing information relating to or connected with the Platform or Platform Materials; and

(v)            technical information, including trade secrets, drawings, plans, encryptions, codes and product descriptions and information relating to or connected with the Platform,

however, excludes the Client Data.

(b)            No right, title and interest in any of the Platform and Platform Materials is transferred or granted to the Client except so far as expressly stated in this Agreement. The Client must not use the Platform in any way that is inconsistent with the Provider’s ownership or that is otherwise in contravention of this Agreement.

(c)            For the avoidance of doubt:

(i)             the Client has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term; and

(ii)            the Client must not publish the collation of data, and the benchmarks and reports that are generated from the Platform.

9.2           Client Data

(a)            The Client (or its appropriate licensors) shall at all times retain ownership of the Client Data including the Intellectual Property Rights subsisting in it.

(b)            The Client is solely responsible for inputting any Client Data. The Provider may, in its absolute discretion, refuse to accept the input of Client Data to the Platform. The Client agrees that the Provider shall not be liable to the Client for any Loss or damage the Client may suffer as a result of this.

(c)            The Client hereby grants to the Provider an irrevocable, worldwide, perpetual, transferable, non-exclusive license to use, communicate, display, copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Client Data to the extent reasonably required for the performance of the Provider’s obligations and the exercise of the Provider’s rights under this Agreement, together with the right to sub-license these rights to its hosting, connectivity and telecommunications service providers to the extent reasonably required for the performance of the Provider’s obligations and the exercise of the Provider’s rights under this Agreement.

(d)            The Client also grants the Provider an irrevocable, non-exclusive licence to use the Client Data as non-personally identifiable data in aggregated and blinded formats where the data provides no identifying, referencing or implication of an association with the Client, for the purposes of display on the Platform (for benchmarking and reporting) and for the Provider’s own analytical and marketing purposes, including to measure any metrics associated with the Client’s use of the Platform.  

(e)            The Provider warrants that:

(i)             it will only use the Client Data as set out in this Agreement and the Provider’s Privacy Policy in place from time to time; and

(ii)            it will not sell, rent or lease the Client Data to any third party.

(f)             The Client warrants to the Provider that:

(i)             the Client owns or has the necessary licenses to transmit such Client Data through the Platform and that any Client Data provided will not infringe any third party rights (including intellectual property or confidentiality obligations) nor give rise to a liability to make royalty or other payments to a third party;

(ii)            the Client Data will not:

A.             breach the provisions of any law, statute or regulation;

B.             give rise to any cause of action against the Provider,

in each case in any jurisdiction and under any applicable law.

 

(g)            The licences granted pursuant to this clause 9 survive termination of this Agreement.

10.        Restriction of access to Client Data

10.1        Subject to the other terms of this clause, in the event that:

(a)            the Client fails to pay any part of the Fees or other monies payable by the Client under or in connection with this Agreement by its due date; or

(b)            this Agreement and/or the Client’s access to the Platform is suspended, restricted or terminated; or

(c)            the Client closes their account or their subscription or terminates this Agreement,

the Client’s access to the Client Data will be immediately revoked and the Client’s Account will become inactive. For the avoidance of doubt the Client will have no access to the Client Data (including access to download any Client Data that is available for them to download) while the Client’s Account is inactive.

10.2        Following termination of this Agreement the Provider reserves the right to delete all Client Data from the Platform and is under no obligation to provide any notice or copies of such Client Data to the Client prior to its deletion.

11.        Warranties

11.1        The Client warrants:

(a)            that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement;

(b)            that it has not relied upon any representations, warranties or conditions offered or made by or on behalf of the Provider except to the extent expressly set out in this Agreement.

11.2        All of the parties' warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.

12.        Training

12.1        If the Client requires the Provider to provide training on the Platform it may make a request to the Provider, setting out the training required. The Provider may accept or reject any training request (at its sole discretion). If the Provider is willing to provide the training it will provide the Client with a quote for such training setting out:

(a)            the number of persons to attend the training;

(b)            the scope of the training;

(c)            the place or online location of training; and

(d)            the price of the training.

12.2        The Provider will not commence training until such time as the Client has accepted the quote, and paid any fees upfront (unless otherwise agreed). Any additional changes to a training request, or additional training requests will incur additional costs.

13.        Disclaimer

13.1        The Provider provides the Services on an “as is” basis and without any warranties, representations, or conditions of any kind, whether express, implied or statutory, to the extent permitted by law. The Client relies on the Services at its own risk and is solely responsible and liable for how they use the Services.

13.2        Without limiting clause 13.1, the Client acknowledges and agrees that:

(a)            the Provider does not guarantee continuous, uninterrupted or secure access to its Platform or that any information provided by the Provider is up to date and accurate;

(b)            the Provider does not warrant that the use of the Platform will result in the Client or its Authorised Users achieving any specific result;

(c)            the Provider makes no representations about the suitability of the Platform for any purpose;

(d)            the Provider makes no guarantees that there will be no loss or corruption of Client Data at any time;

(e)            whilst best endeavours will be made to ensure the accuracy of the reports and any output provided by the Platform, the Provider cannot guarantee the accuracy, currency, suitability, reliability and availability of the Platform and any content gained within (including any reports or analysis provided);

(f)             the information provided on and in the Platform is general information and is not in the nature of financial, legal or any form of advice. The Client should obtain advice before making any decision based on the Platform;

(g)            the Provider reserves the right to withdraw, or amend, update or change the functionality or content of the Platform at any time, without notice;

(h)            complex software is never wholly free from defects, errors and bugs, and the Provider gives no warranty or representation that the Platform will be wholly free from defects, errors and bugs; and

(i)              the Provider will maintain appropriate technical and organisational measures to protect the security of the Client Data. However, the Provider does not guarantee that unauthorised third parties will never be able to defeat those measures to access the Client Data for improper purposes. The Client acknowledges that there are risks inherent in internet connectivity that could result in the loss of privacy, confidential information and Client Data. Accordingly, any Client Data that is transmitted by the Client is transmitted solely at the Client’s risk. The Client is solely liable for their Client Data.

14.        Limitation of Liability

14.1        Subject to the other terms of this clause, the Provider excludes all rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms in relation to the Services that are not expressly set out in this Agreement to the maximum extent permitted by law.

14.2        Without limitation to clause 14.1, to the extent permitted by law, the Provider excludes all liability to the Client and Authorised Users and/or anyone else for Losses arising in any way in connection with the Platform or its use and/or the Services and/or this Agreement, including but not limited to Losses suffered as a result of:

(a)            non-performance of the Platform, including any downtime of the Platform;

(b)            any reliance on the Platform (or any information provided from the Platform);

(c)            any incorrect data entry or information made by the Client or Authorised Users on the Platform;

(d)            any incorrect data or content, errors, mistakes or inaccuracies on the Platform;

(e)            any loss or corruption of Client Data at any time;

(f)             any defects, errors and bugs in the Platform;

(g)            any unauthorised access to or use of the Platform;

(h)            any interruption or cessation of transmission to or from the Platform;

(i)              any viruses, trojan horses or other harmful code or communications which may be transmitted to or through the Platform by any third party; and/or

(j)              loss of privacy and confidential information.

14.3        Subject to the other terms of this clause, the Provider’s maximum aggregate liability to the Client for any Loss or damage or injury arising out of or in connection with this Agreement, including any breach by the Provider of this Agreement however arising, under any indemnity, in tort (including negligence), under any statute, custom, law or on any other basis, is limited to the actual Fees paid by the Client to the Provider under this Agreement in the one-month period preceding the matter or event giving rise to the claim.

14.4        Nothing in this Agreement is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of the ACL, or the exercise of a right conferred by such a provision, or any liability of the Provider in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of services, to the extent that the ACL applies to the Services.

14.5        If the Provider is liable to the Client in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, the Provider's total liability to the Client for that failure is limited to, at the option of the Provider the resupply of the Services or the payment of the cost of resupply.

14.6        The limitation and exclusion of liability in this clause applies whether the liability claim is based on breach of contract, under a warranty or an indemnity, tort (including negligence), under statute, in equity or otherwise.

14.7        Without limitation to the other terms of this clause, the Provider excludes any liability to the Client, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with this Agreement.

14.8        Notwithstanding anything else in this clause, the Provider’s liability will be reduced to the extent the loss or damage is caused by or contributed to by the Client, the Client’s Authorised Users or the Client's employees, agents or contractors.

14.9        Where the Client is or may be entitled to recover from a third party any sum in respect of any matter or event that could give rise to a claim under this Agreement, the Client must:

(a)            use its best endeavours to recover that sum before making the claim;

(b)            keep the Provider at all times fully and promptly informed of the conduct of such recovery; and

(c)            reduce the amount of the claim to the extent that sums are recovered.

14.10     The Provider will not be liable for any claim under or in relation to or arising out of this Agreement including a breach of any warranty unless:

(a)            the Client has first made a claim under any insurance policy held by the Client that may cover that claim; and

(b)            that claim has been denied in whole or partly by the relevant insurer.

14.11     If the Client recovers any amount under an insurance policy in respect of a claim under or in relation to or arising out of this Agreement and that amount is less than the loss or damage incurred by the Client, the amount of the shortfall will be the amount of the Client’s loss for the purposes of this Agreement.

15.        Indemnity

15.1        Except to the extent caused by the breach of this Agreement by the Provider, the Client indemnifies and releases the Provider, and its officers, directors, shareholders, employees, consultants, agents, and related bodies corporate from and against any Losses (including any direct, indirect, special or consequential Losses) and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses suffered or incurred by the Provider arising out of or in connection with:

(a)            the Client or the Client’s Authorised User's or End User’s use of the Services;

(b)            the supply, suspension, restriction or cancellation of the Client or the Client’s Authorised User’s access to the Platform in accordance with this Agreement;

(c)            the Client or the Client’s Authorised User's breach or negligent performance or non-performance of this Agreement;

(d)            the End User’s breach of the End User Licence Agreement;

(e)            the Client or the Client’s Authorised User’s or End User’s violation of any applicable law;

(f)             any claim made against the Provider and/or the Client and/or its Authorised Users and/or its End Users by a third party arising out of or in connection with this Agreement, to the extent that such claim arises from the act or omission of the Client and/or its Authorised Users and/or its End Users or out of the breach, negligent performance or failure or delay in performance of this Agreement by the Client;

(g)            any claim made against the Provider for actual or alleged infringement of a third party’s rights arising out of or in connection with the Client Data; and/or

(h)            the enforcement of this Agreement by the Provider.

15.2        The Client must make payments under this clause:

(a)            in full without set-off or counterclaim, and without any deduction in respect of taxes unless prohibited by law; and

(b)            in the currency in which the payment is due, and otherwise in Australian dollars, in immediately available funds.

15.3        It is not necessary for the Provider to incur expense or make payment before enforcing a right of indemnity under this clause.

15.4        The indemnities in this clause:

(a)            are continuing obligations of the Client, independent from its other obligations under this Agreement and survive termination or expiry of this Agreement; and

(b)            are absolute and unconditional and unaffected by anything which otherwise might have the effect of prejudicing, releasing, discharging or affecting the liability of the Client.

15.5        The Provider’s liability under this indemnity is limited under clause 14.

16.        Force Majeure Event

16.1        The Provider will not be in breach of this Agreement or liable to the other party for any Loss incurred by that other party as a direct result of the Provider failing or being prevented, hindered or delayed in the performance of its obligations under this Agreement where such prevention, hindrance or delay results from a Force Majeure Event.

16.2        If a Force Majeure Event occurs, the Provider must notify the Client in writing as soon as practicable and that notice must state the particulars of the Force Majeure Event and the anticipated delay.

16.3        On providing the notice in clause 16.2, the Provider will have the time for performance of the affected obligations extended for a period equivalent to the period during which performance has been delayed, hindered or prevented, however, the Provider must continue to use all reasonable endeavours to perform those obligations.

16.4        The performance of the affected obligations must be resumed as soon as practicable after such Force Majeure Event is removed or has ceased.

17.        Termination and Suspension

17.1        Termination by the Client

(a)            The Client may terminate this Agreement at any time without cause by giving written notice to the Provider of its intention to terminate. Except as set out under clause 17.1(b) termination takes effect at the end of the current year of the Client’s annual subscription plan. There is no pro-rata refund offered if the Client terminates during a subscription plan under this clause without reason.

(b)            The Client may terminate this Agreement with immediate effect, where:

(i)             the Provider breaches any term of this Agreement and fails to rectify that breach within a reason time (being no less than 14 days) from being given notice by the Client;

(ii)            the Provider suffers an Insolvency Event.

(c)            Where termination occurs by clause 17.1(b) the Provider will offer a pro-rata refund to the Client for the remainder of the year during which termination took place. This is the sole remedy available to the Client.

(d)            If the Client requires assistance in terminating or requires further information regarding cycles or the duration of a subscription plan it should contact the Provider.

17.2        Provider’s right to terminate, suspend or restrict

(a)            The Provider may terminate this Agreement or the Provider’s Account at any time without cause. Except as set out under clause 17.2(b), if the Provider terminates this Agreement, the Client will be able to access the Platform for the remainder of the current year of the Client’s subscription plan.

(b)            The Provider may immediately suspend, restrict or terminate this Agreement and/or the Client’s (and the Client’s Authorised Users’) access to all or part of the Services, including access to the Client Data on the Platform immediately where:

(i)             it is reasonably necessary for security, technical, copyright or operational reasons;

(ii)            the Client breaches any term of this Agreement;

(iii)           the Client violates the rights of any third party or the Provider;

(iv)           the Provider reasonably believes that the Client is engaged in illegal or fraudulent use of the Services;

(v)            the Provider reasonably believes that the Client Data is inappropriate or unlawful;

(vi)           the Provider reasonably believes that the Client is using the Services in a way that would cause Loss or damage to or otherwise cause legal liability to the Provider, other users, third parties or disrupt others’ use of the Services; or

(vii)          the Client suffers an Insolvency Event.

(c)            The Provider may only offer a pro-rata refund if the Provider terminates during a subscription plan under clauses 17.2(b)(i) at no fault of the Client. Otherwise no pro-rata refund will be provided.

18.        Effects of termination

18.1        On termination of this Agreement:

(a)            the right to use the Platform is revoked and the Client’s access will be terminated;

(b)            the Client must cease using, and must ensure its Authorised Users cease using the Platform or any embed codes as they relate to the Platform; and

(c)            all amounts payable by the Client to the Provider (including amounts that are not yet due) shall become immediately due and payable and must be paid within 7 days of termination without set-off or counter claim (there is to be no pro-rata refund for a part month).

18.2        Any clause of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

19.        Confidentiality and Privacy

19.1        Confidential Information

(a)            The parties undertake that they and their respective personnel will not, without the prior written consent of the other party:

(i)             disclose the Confidential Information of the other party to any person; or

(ii)            use the Confidential Information of the other party for their own or a third party’s benefit.

(b)            Each party must take all reasonable steps to ensure that the Confidential Information of the other party is only disclosed to such of its personnel as require that information in order to enable the performance of this Agreement.

(c)            If requested by either party the other party must return all Confidential Information and any copies of the Confidential Information to the other party.

(d)            In the event that either party is requested or becomes legally compelled to disclose any of the other party’s Confidential Information, that party will (subject to any regulatory restrictions) provide the other party with prompt notice so that the other party may seek such protective order or other appropriate remedy as it thinks appropriate.

(e)            In the event of a breach or threatened breach of the terms of this clause by either party (Breaching Party), the other party will, as between the parties, be entitled to an injunction restraining the Breaching Party from committing any breach of this clause without showing or proving actual damage sustained or likely to be sustained by the party.

19.2        Privacy

(a)            In respect of any Personal Information (as defined in the Privacy Legislation) that is included in Client Data or otherwise provided to, collected or received by either party in connection with the Platform, the Client must comply with:

(i)             the Privacy Legislation, and Personal Information in accordance with the Privacy Legislation (as it applies to that party); and

(ii)            the applicable Policies and guidelines of the Provider as made known from time to time.

(b)            The Client warrants and represents that all Personal Information that it provides to the Provider complies with this clause and this Agreement at all times. Immediately upon the Client becoming aware of any breach by it of any Privacy Legislation in respect of Personal Information provided to the Provider, the Client must inform the Provider of this.

(c)            If either party receives a request for access to or correction of any Personal Information from any person (including the Office of the Australian Information Commissioner) prior to providing such access to or correcting the information it must notify the other party.

(d)            The Client acknowledges that the data collected from End Users in surveys is anonymous, and that the Client is strictly prohibited from requesting identifying information (except with the written approval of the Provider).

20.        Notices

20.1        All notices authorised or required under this Agreement to be given by a party to the other shall be in writing sent by email or delivered personally or sent by pre-paid registered post and in each case addressed to the other party at that party's Address for Service or as the case may be at such other address as a party may from time to time notify to the other.

20.2        The following shall constitute proof of receipt:

(a)            proof by posting by registered post; or

(b)            proof of dispatch by email.

20.3        Receipt of a notice given under this Agreement will be deemed to occur:

(a)            in the case of a communication sent by pre-paid registered post, on the third business day after posting;

(b)            in the case of an email, on the business day immediately following the day of dispatch.

20.4        If a notice is sent via post, it must also be sent via email.

21.        Testimonial and publicity rights

21.1        If the Provider requests, the Client will provide a testimonial as to the quality of work the Provider has delivered. In consideration of the Provider providing the Services, the Client also agrees that it may be identified as a client on the Provider’s website or other marketing materials, and that the Provider may request and use the Client’s logo for this purpose which the Client must provide, and Client also agrees that the Provider may develop a case study featuring the work that the Provider/the Client has done for the Client and that this may be used for publicity purposes.

22.        General Provisions

22.1        Variation

An amendment or variation of any term of this Agreement must be in writing and signed by each party.

22.2        No Waiver

(a)            No party may rely on the words or conduct of any other party as being a waiver of any right, power or remedy arising under or in connection with this Agreement unless the other party or parties expressly grant a waiver of the right, power or remedy. Any waiver must be in writing, signed by the party granting the waiver and is only effective to the extent set out in that waiver.

(b)            Words or conduct referred to in clause 22.2(a) include any delay in exercising a right, any election between rights and remedies and any conduct that might otherwise give rise to an estoppel.

22.3        Assignment, Novation and Other Dealings  

(a)            The Provider may assign or novate any rights that arise out of or under this Agreement without the consent of the Client.

(b)            Any rights of the Client that arise out of or under this Agreement are not assignable or capable of novation by the Client without the prior written consent of the Provider, whose consent must not be unreasonably withheld.

22.4        Counterparts

This Agreement may be executed in any number of counterparts. All counterparts taken together constitute one instrument. A party may execute this Agreement by signing any counterpart. The date on which the last counterpart is executed is the date of this Agreement. Communication of the fact of execution to the other parties may be made by sending evidence of execution by email.

22.5        Costs

The parties must bear their own costs of and incidental to the negotiation, preparation and execution of this Agreement.

22.6        Severability

(a)            If the whole or any part of a provision of this Agreement is or becomes invalid or unenforceable under the law of any jurisdiction, it is severed in that jurisdiction to the extent that it is invalid or unenforceable and whether it is in severable terms or not.

(b)            Clause 22.6(a) does not apply if the severance of a provision of this Agreement in accordance with that clause would materially affect or alter the nature or effect of the parties’ obligations under this Agreement.

22.7        No Merger

On completion or termination of this Agreement, the rights and obligations of the parties set out in this Agreement will not merge and any provision that has not been fulfilled remains in force.

22.8        Survival

Any clause which by its nature is intended to survive termination or expiry of this Agreement will survive such termination or expiry.

22.9        Further Action

Each party must do all things (including completing and signing all documents) reasonably requested by the other party that are necessary to give full effect to this Agreement and the transactions contemplated by this Agreement.

22.10     Time of the Essence

Time is of the essence in this Agreement in respect of any date or time period and any obligation to pay money.

22.11     Relationship of the Parties  

(a)            Nothing in this Agreement gives a party authority to bind any other party in any way.

(b)            Nothing in this Agreement imposes any fiduciary duties on a party in relation to any other party.

22.12     Remedies Cumulative  

Except as provided in this Agreement and permitted by law, the rights, powers and remedies provided in this Agreement are cumulative with and not exclusive to the rights, powers or remedies provided by law independently of this Agreement.

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