7/99 William St Melbourne VIC 3000
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SCHEDULE – TERMS AND CONDITIONS

  1. DEFINITIONS

In this Agreement, unless the context otherwise requires:

1.1 “Change in Control” means any direct or indirect change in the ownership of the entity or any controlling entity.

1.2 “Commencement Date” means the date of this Agreement.

1.3 “Confidential Information” means all information belonging or relating to a party to this Agreement, whether oral, graphic, electronic, written or in any other form, that is not generally available to the public at the time of disclosure other than by reason of a breach of this Agreement or that is in fact, or should reasonably be regarded as, confidential to the party to whom it belongs or relates.

1.4 “Customer” means the customer listed in this Agreement, its successors, associated entities, and assigns or any person acting on behalf of and with the authority of the Customer.

1.5 “End Users” mean the consumers of the Customer’s products, goods or services.

1.6 “Go-live Date” means the date the Solution is first used by the Customer in a live or production environment.

1.7 “GST” has the meanings given to that expression in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

1.8 “Intellectual Property Rights” means all present and future intellectual and industrial property rights conferred by statute, at common law or in equity and wherever existing, including:

(a) any copyright, patents, patent applications, designs, design applications, trade marks, trademark applications, service marks, trade names, business names, domain names, eligible layout rights or similar rights, whether registered or not;

(b) any invention, discovery, trade secret, know-how, computer software and confidential or technical information;

(c) Confidential Information;

(d)  any other rights resulting from intellectual activity in any field; and

(e) any grant of registration for or title to anything referred to in paragraphs (a) to (d) inclusive and all renewals and extensions of these rights.

1.9 “Level 1 Support Services” are services involving interface with the Customer’s End Users, receipt and monitoring of calls and filtering and resolving calls able to be resolved through remote assistance and explanation.

1.10 “Level 2 Support Services” are services requiring in-depth analysis of reported issues, advice of potential workarounds, bug fixes and changes to the base Solution Code.

1.11 “Personal Information” means any information or opinion about a natural person (whether or not true), as defined in the Privacy Act, which either party deals with in connection with performing its obligations under the Agreement.

1.12 “Privacy Act” means the Privacy Act 1988 (Cth).

1.13 “Privacy Law” means the Privacy Act (including the Australian Privacy Principles under the Privacy Act), and any other privacy or general legislation which binds the parties and which relates to the protection of Personal Information.

1.14 “Privacy Policy” means the privacy policy posted by us on our website.

1.15 “Price” means the price payable for the provision of the Services and Solution as agreed between the Seller and the Customer in accordance with clause  5.

1.16 “Seller” means Dexterous Systems (Aust) Pty Ltd (ABN 85 169 950 378), its successors, associated entities, and assigns or any person

acting on behalf of and with the authority of Dexterous Systems (Aust) Pty Ltd.

1.17 “Services” means all services, goods or products supplied by the Seller to the Customer at the Customer’s request from time to time (where the context so permits the terms “goods” or “services” shall be interchangeable for the other).

1.18  “Solutions” means:

(a) the application or program(s) identified in the ‘Description’ under this Agreement;

(b)  any further applications or programs from time to time notified in writing by the Seller as being subject to this Agreement; and

(c)  any modified, updated, or enhanced versions of those applications or programs that the Seller may provide to the Customer pursuant to this Agreement.

1.19 “Source Code” means the human-readable version of the Solution application or program built on the Symfony and mautic frameworks that can be compiled into executable code excluding the source code for any Solutions not owned by the Seller or its associated entities.

1.20 “Support Services” means the Level 1 Support Services and the Level 2 Support Services.

1.21 “Term” means the term of this Agreement as extended by the parties in writing from time to time, subject to a minimum term of 24 months if the Agreement is not terminated in the initial 30 days.  This Agreement will remain in force until the date it is terminated in accordance with its terms by either party.

“Upgrade” means a subsequent release of the Solutions containing material improvements or significant additional functionality.

  1. CHANGE IN CONTROL & NOVATION OF AGREEMENT

2.1  Each party shall give the other party not less than 14 days prior written notice of any proposed Change in Control and/or any other change in the details (including but not limited to, changes to name, address, contact phone or email addresses or business practice).

2.2  Each party’s rights, interests and obligations under this Agreement cannot be transferred to a third party without the written consent of the other party. Where any rights, interests and obligations are assigned to a third party, each party will use their best endeavours to ensure all rights, interests and obligations remain in force under this Agreement, and to procure that the third party execute a deed of accession whereby the third party agrees to be bound by this Agreement as though named as a party to this Agreement.

  1. SOLUTIONS LICENCE

3.1 The Seller grants to the Customer a non-exclusive, non-transferable licence to access and use the Solutions during the Term of the Agreement subject to the limitations set out in the Schedule and subject to the terms and conditions of this Agreement. This licence is sub-licensable to Customers solely to the extent required to enable  the Customer’s End Users to effectively use  the Solutions for their internal business purposes and in accordance with the stated specifications and documentation.

3.2 The Customer may not use the Solutions except:

(a) to the extent and for the purposes specifically authorised by this Agreement;

(b) as otherwise authorised by the Seller in writing.

3.3 The Intellectual Property Rights in any materials developed in connection with this Agreement shall be assigned to and vest in the Seller immediately upon creation. Any customisation or

translation of the Solutions is subject to final approval of the Seller before release.

3.4 The Seller and the Customer agree that the Customer will not use or access the Services, Customer Portal, Solutions or other intangible property at any time unless and until:

(a) the Customer has paid the Seller all amounts owing to the Seller; and

(b) the Customer has met all of its obligations to the Seller.

3.5 Receipt by the Seller or any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured or cleared in full.

 

4. SOLUTIONS UPGRADES

4.1 The Seller will endeavour to notify the Customer of substantial new Upgrades of the Solutions from time to time.

4.2 Nothing in this Agreement shall be construed as requiring the Seller to:

(a) develop and release Upgrades to the Customer throughout the Term;

(b) provide Upgrades if the Customer does not have a current agreement in place with the Seller; or

(c) customise the Solutions or Upgrades to meet the particular requirements of the Customer or of the Customer’s End Users.

4.3 Any enhancements, adjustments or changes to the Customer’s Solution after the Commencement Date will be agreed between the Seller and the Customer in writing, with a Price as quoted by the Seller.

5. PRICE AND PAYMENT

5.1 The Price shall be as set out in this Agreement, The Price is subject to the Customer’s compliance with provision of required information and materials as and when requested by the Seller.

5.2 Variations from the plan of scheduled Solutions or specifications of the Services must be quoted by the Seller and agreed in writing by the parties to this Agreement.

5.3 The Licence & Hosting fee payment per month commences from the Commencement Date of this Agreement and will be invoiced monthly in advance.

5.4 The Price is payable by the Customer on the date determined by the Seller, which is the earlier of:

(a) the date specified on any invoice or other form as being the date for payment;

(b) failing any notice to the contrary, the date which is 7 days following the date of any invoice given to the Customer by the Seller; or

(c) by way of instalments/progress payments in accordance with this Agreement.

5.5 Payment may be made by cash, bank cheque, electronic funds transfer, credit card (plus a surcharge of up to 2.2% of the Price), or by any other method as agreed between the Customer and the Seller.

5.6 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by the Seller nor to withhold payment of any invoice because part of that invoice is in dispute.

5.7 Unless otherwise stated the Price is exclusive of GST. In addition to the Price the Customer must pay to the Seller an amount equal to any GST charged for any supply by the Seller under this Agreement for the sale of goods or provision of Services. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer

pays the Price. In addition, the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

 

6. WARRANTIES

6.1 The Seller warrants that the media on which the Solutions are provided to the Customer will be, with reference to the documentation and specifications described in the Schedule to this Agreement, free of defects in materials and workmanship under normal use for a period of 60 days after delivery of the Solutions to the Customer.

6.2 The Seller:

(a) warrants that the Solutions will operate substantially in accordance with the documentation and specifications described in the Schedule to this Agreement; and

(b) warrants that any Support Services provided under this Agreement will be performed promptly (in the case of Level 1 Support Services, no more than 2 business days from date of request and in the case of Level 2 Support Services, no more than 5 business days from date of request unless otherwise advised) with due care and diligence as to ensure that the Solutions will operate substantially with the documentation and specifications described in the Schedule to this Agreement.

 6.3 To the extent permitted by law, the express warranties in this clause are in lieu of all other warranties, express, implied or statutory, regarding the Solutions, Support Services or Services and any materials developed during the performance of the Services, including any warranties of satisfactory quality, fitness for a particular purpose, title and non-infringement of third party rights. The Customer acknowledges that is has not relied on any warranties other than the express warranties provided in this clause and as provided by law to the extent not excluded by this clause.

 

7. CUSTOMER INDEMNITIES

The Customer will indemnify the Seller and keep the Seller indemnified against:

(a) all and any demands, claims, actions and proceedings whatsoever and howsoever arising made by any third person in connection with or arising out of the operation of this Agreement; and

(b) all and any losses, costs, expenses and damages whatsoever and howsoever incurred by the Seller in connection with or arising out of a breach by the Customer or any End User of any provision of this Agreement.

 

8. LIMITATION OF LIABILITY

8.1 The limit of the Seller’s liability (whether in contract, tort, negligence, strict liability, tort or by statute or otherwise) to the Customer or to any third party concerning performance or non-performance under this Agreement, shall not in the aggregate exceed the monetary amounts paid to the Seller under this Agreement in the 6 month period preceding the event giving rise to the cause of action.

8.2 The parties acknowledge and agree that the Seller will not be liable for any direct or indirect lost profit or revenue, exemplary damages, deletion or corruption of electronically or digitally stored information, or without limiting the foregoing, any indirect or consequential loss or damage howsoever described or claimed.

 

9. CUSTOMER OBLIGATIONS

The Seller shall be entitled to rely on the accuracy and validity of any information provided by or on behalf of the Customer. The Customer acknowledges and agrees that if any of the information provided by the Customer is inaccurate or misleading, the Seller has no responsibility to the

extent permitted by law for any loss, damages, or costs either directly or indirectly resulting from the inaccurate or misleading information.

  1. ACCESS TO DOMAIN & WEBSITE

The Customer shall ensure that the Seller has clear and free access to the nominated website domain, any web-based interface provided by a hosting company, and any and all necessary information at all times to enable them to provide the Solution and Services.

  1. CUSTOMER ACKNOWLEDGEMENTS

11.1 The Seller is not responsible for any failure to perform any of its obligations under this Agreement where, in the opinion of the Seller, such failure is caused or contributed to by the Customer or any third party.

11.2 The Customer acknowledges that if the completion of the Solution or the provision of the Services is delayed or is required to be altered as a result of the following:

(a) if the Seller suspends the provision of the Services in accordance with its rights under this Agreement;

(b) if the Seller is required to provide the Services in circumstances other than those expressly or reasonably anticipated in this Agreement;

(c) if there is a change in the timing or complexity of the Services;

(d) any of the project assumptions or the scope relating to the provision of the Services set out the Schedule to this Agreement is incorrect, subject to change or is altered, including during the course of the provision of the Services; or

(e) as a result of any act or omission by the Customer, its agents, contractors or suppliers,

then the Customer acknowledges and agrees that:

the dates for provision and acceptance of the Solution as set out in the Schedule to this Agreement or as otherwise agreed, will be delayed or changed as the Seller reasonably considers necessary;

(f) the Seller may charge the Customer an amount equal to its reasonable loss, damage or expense incurred as a result of the delay or change in any assumptions set out in the Schedule; and

(g) the Seller may increase the Price relating to the provision of any amended or revised Services which are required as a result of any of the events listed in clauses 11.2(a) to 11.2(f).

 

12. CONFIDENTIAL INFORMATION

12.1 Each party (Receiving Party) receiving, possessing or otherwise acquiring Confidential Information of any other party (Disclosing Party) acknowledges that the Disclosing Party’s Confidential Information is the property of and confidential to or a trade secret of the Disclosing Party. Subject to clause 12.2, the Receiving Party must:

(a) keep the Disclosing Party’s Confidential Information confidential and not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the prior written approval of the Disclosing Party;

(b) take all reasonable steps to secure and keep secure all Disclosing Party’s Confidential Information coming into its possession or control; and

(c) not memorise, use, modify, reverse engineer or make copies, notes or records of the Disclosing Party’s Confidential Information for any purpose other than in connection with the performance by the Receiving Party of its obligations under the Agreement.

12.2 The obligations of confidentiality under clause 12.1 do not apply to any information that:

(a) is generally available to the public (other than by reason of a breach of the Agreement); or

(b) is required to be disclosed by any applicable law.

12.3 The Customer acknowledges and agrees that the Seller may disclose the Customer’s Confidential Information to the Seller’s third party suppliers for the purpose of providing the Services to the Customer.

12.4 Notwithstanding any provision of the Agreement, the Seller may during and after the Term of the Agreement communicate in any media (including press releases, general announcements, annual reports and print and online marketing materials) the Customer’s name and a description of the Services provided to the Customer under this Agreement.

  1. PRIVACY

13.1 The Customer acknowledges and agrees that it is responsible for the collection, use, storage and otherwise dealing with Personal Information.  The Customer will comply and ensure that all of the Customer’s personnel comply with the requirements of any Privacy Law in respect of all Personal Information collected, used, stored or otherwise dealt with under or in connection with this Agreement.

13.2 Without limiting this clause, in the event of any breach by the Customer of Privacy Laws or the Privacy Policy, the Seller reserves the right to:

(a) terminate the Agreement, in whole or in part, without prior notification to the Customer; and/or

(b) suspend any or all of the Services.

  1. INTELLECTUAL PROPERTY

14.1  The Customer warrants that all designs, specifications or instructions given to the Seller will not cause the Seller to infringe any Intellectual Property Rights in the execution of the Services and Solution for the Customer and the Customer agrees to indemnify the Seller against any action taken by a third party against the Seller in respect of any such infringement.

14.2  All Intellectual Property Rights in the Solution and in any materials developed in connection with this Agreement shall be assigned to and vest in, the Seller, upon creation.

  1. DEFAULT AND CONSEQUENCES OF DEFAULT

15.1  Interest on overdue invoices or instalments shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of 2% per calendar month.

15.2  If the Customer owes the Seller any outstanding amount under this Agreement the Customer shall indemnify the Seller from and against all costs and disbursements incurred by the Seller in recovering the unpaid amount.

15.3  Without prejudice to the Seller’s other remedies at law the Seller shall be entitled to suspend or cancel all or any order of the Customer which remains unfulfilled, suspend or terminate the supply of Services or the Solutions to the Customer, and all amounts owing to the Seller shall, whether or not due for payment, become immediately payable if:

(a)  the Customer is in breach of any obligation (including those relating to payment) under this Agreement;

(b)  the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or

(c)  a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in

respect of the Customer or any asset of the Customer.

  1. TERM & TERMINATION

16.1  This Agreement will remain in force until the earlier of:

(a)  the date it is terminated in accordance with the terms of this Agreement by either party;

(b) where the Customer terminates this Agreement within 30 days from the Go-Live Date;

(c) where the other party commits a breach of this Agreement and the breach is capable of being remedied, 14 days of the breach occurring unless otherwise agreed in writing by the parties to this Agreement;

(d) where the other party commits a material breach of this Agreement where the breach is not capable of being remedied to the reasonable satisfaction of the party not in breach, 14 days of the breach occurring unless otherwise agreed in writing by the parties to this Agreement;

(e) where the other party is a company, immediately on the party is unable to pay its debts or otherwise become insolvent, or, if the other party is a person, the party is declared bankrupt; or

(f) subject to the Term being extended with the written consent of both parties to this Agreement, the Term of this Agreement.

16.2 If the Customer fails to pay the Seller for any amount owed to the Seller within 7 days after a reminder notice has been sent to the Customer, the Seller may terminate the Agreement after the expiry of the 7 days.

16.3 Upon termination or expiry of the Agreement for any reason:

the Customer must pay to the Seller any outstanding amount due and owing to the Seller under this Agreement; and

(a) each party must return to the other party all Confidential Information and any material that is the subject of Intellectual Property Rights of the other party, or if not capable of return, destroy it and certify its destruction to the other party.

16.4  Unless the Customer provides at least 30 days written notice prior to the expiration of the Term, this Agreement will automatically renew for a further term of 12 months.  The Customer agrees to pay the monthly licencing and hosting fees that apply under this Agreement each month for the further 12 month term. Licence and Hosting Fees are to be paid in monthly instalments in advance.

  1. DISPUTE RESOLUTION

17.1 In the event of a dispute, either party may deliver a written notice to the other party (Notice of Dispute) which specifies the nature of the Dispute and requiring its resolution under this clause 17.

17.2 Within 10 business days after a party has delivered a Notice of Dispute, the other party must deliver a written response (Response) to narrow and clarify the scope of the relevant dispute and explain the position of the responding Party.

17.3 If, within 20 business days of delivery of a Notice of Dispute, the dispute is not resolved, the parties may jointly refer the dispute to an independent mediator.

17.4 If, within 25 business days of the delivery of a Notice of Dispute, the parties cannot agree on a mediator, the mediator will be a person nominated by the Institute of Arbitrators and Mediators Australia (or similar body), who accepts appointment as a mediator.

17.5 If the dispute is not resolved within 20 business days of the mediator being appointed, the parties are free to commence court proceedings.

17.6 Each party must pay its own costs pursuant to this clause 17, and an equal share of any external bodies’ fees.

17.7 Despite the existence of a dispute, the parties must continue to perform their respective obligations under this Agreement.

17.8 This clause does not prevent any party from obtaining any urgent injunctive, interlocutory, or declaratory relief from a court.

  1. NOTICES

Any notice or other communication to or by a party under this Agreement:

(a) may be given by personal service, post or sent electronically by email;

(b) must be in writing, legible, signed by the relevant party’s authorised representative and in English addressed (depending on the manner in which it is given) to the relevant contact and address or email specified in this Agreement; and

(c) is deemed to be given by the sender and received by the addressee:

(i) if delivered in person, when delivered to the addressee;

(ii) if posted, 6 business days (or 10 business days, if addressed outside Australia) after the date of posting to the addressee whether delivered or not; and

(iii) if sent electronically by email and confirmation is received from the relevant internet service provider that the transmission was successfully delivered, on the day of transmission,

but if the delivery or receipt is on a day which is not a business day or is after 4.00 pm (addressee’s time), it is deemed to have been received at 9.00 am on the next business day.

  1. GENERAL

19.1  The failure by either party to enforce any provision of this Agreement shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision.

19.2 If any provision of this Agreement is invalid, void, illegal or unenforceable, the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

19.3 This Agreement is governed by the laws of the state of Victoria in which the Seller has its principal place of business, and each party to this Agreement agrees to be subject to the jurisdiction of the courts in that state.

19.4 The Seller may sub-contract all or any part of its rights and obligations without the Customer’s consent strictly on the condition that in doing so, it will be responsible for all acts or omissions of such sub-contractor.

19.5 Neither party will be liable to the other for any delay or failure to perform its obligations under this Agreement as a result of a cause beyond its reasonable control, which includes but is not limited to any act of God, war, terrorism, strike, lock-out, industrial action, flood, fire or storm (Force Majeure). If the Force Majeure continues for a period of more than 20 Business Days, the party not affected by the Force Majeure may terminate this Agreement by written notice to the affected party.

19.6 Each party warrants that it has the power to enter into this Agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent, and this Agreement creates binding and valid legal obligations on it.

19.7 This Agreement constitutes the entire agreement between the Seller and the Customer.

19.8 The provisions of this Agreement which are intended or capable of having effect after the expiration or termination of this Agreement (including provisions relating to warranties,

obligation of confidence, indemnities, liability, licence, Intellectual Property Rights and those with respect to payments that are accrued but unpaid at the time of termination) will remain in full force and effect following any suspension, expiration or termination of the Services or Solution.

19.9 This Agreement cannot be amended or varied except in writing signed by the parties.

19.10 Each party is an independent contractor and, unless this Agreement expressly provides otherwise, has no authority to bind or commit the other party and nothing in this Agreement may be construed as creating a relationship of partnership, principal and agent or trustee and beneficiary.