general terms and conditions
TERMS AND CONDITIONS
1. Supply of Services
1.1 In consideration of your payment of the Fees, we will provide the Services (as applicable) in accordance with these Terms, whether ourselves or through our Personnel.
1.2 If these Terms expresses a time within which the Services (as applicable) are to be supplied, we will use reasonable endeavors to provide the Services (as applicable) by such time, but you agree that such time is an estimate only.
1.3 You acknowledge and agree that any information, advice, material or work provided by us as part of the Services does not constitute legal, financial, due diligence or risk management advice.
1.4 Third Party Products or Services: Where you engage third parties to operate alongside our Services (for example, any third-party software systems or hardware), those third parties are independent of us and you are responsible for (meaning we will not be liable for) the goods or services that they provide, unless we expressly agree otherwise under a Statement of Work.
1.5 We may amend these Terms or Services at any time, by providing written notice to you. By clicking “I accept” or continuing to use the Services after the notice or 30 days after notification (whichever date is earlier), you agree to the amended Terms. If you do not agree to the amendment, you should cease using the Services. If you have paid upfront for recurring access to any of the Services (excluding one-time purchases) and you would like to cancel them, please contact us in writing within 30 days of receiving notice to cancel that recurring access and we will issue you a pro-rata refund for such Services.
2. Your Obligations
2.1 You agree to (and to the extent applicable, ensure that your Personnel agree to):
(a) comply with these Terms, all applicable Laws, and our reasonable requests.
(b) provide us (and our Personnel) with access to any premises specified in a Statement of Work (and its facilities) and any other premises as is reasonably necessary for us to provide our Services, free from harm or risk to health or safety at the times and on the dates reasonably requested by us or as agreed between the Parties.
(c) provide us (and our Personnel) with access to your Systems as necessary for us to provide the Services;
(d) where the Services include the provision of an application programming interface (API), only use the API in accordance with the documentation that we provide to you through our Site or otherwise;
(e) provide us with all documentation, information, instructions, cooperation and access reasonably necessary to enable us to provide our Services; and
(f) not (or not attempt to) disclose, or provide access to, our Services to third parties without our prior written consent.
2.2 You agree to pay our additional costs reasonably incurred as a result of you failing to comply with this clause 2.
3. Service Delivery and Cancellation
3.1 Travel Expenses: All consulting and advisory services are delivered remotely by default. If you request onsite delivery, you agree to cover all reasonable travel, accommodation, and related expenses incurred by us, which will be charged to you. You may request a quote for these expenses in advance. Your approval to proceed with onsite services confirms your acceptance of these additional costs.
3.2 Session Cancellation Policy: For any scheduled kick-off, onboarding, or training sessions:
(a) Less than 24 hours’ notice: one hundred (100) percent of session hours will be deducted from your allocation
(b) 24 to 72 hours’ notice: fifty (50) percent will be deducted
(c) More than 72 hours’ notice: No deduction applies
4. End User License Agreement Compliance
4.1 You acknowledge that the use of the Services may be subject to End User License Agreements (EULAs) as set out in Annexure A.
4.2 You agree to:
(a) comply with all terms and conditions set forth in any applicable EULA;
(b) not modify, alter, or attempt to circumvent any EULA;
(c) promptly accept any updates or modifications to the EULA as notified by the Covered Providers or us; and
(d) immediately cease use of the Services if you are unable or unwilling to comply with the EULA.
4.3 You understand that failure to comply with any EULA may result in immediate termination of your access to the Services, without prejudice to any other rights or remedies available to the Covered Providers or us.
5. Exclusivity
5.1 During the Term, we will be your exclusive provider of Software Procurement Services and Additional Services for the covered providers set out in the applicable order form. This exclusivity is based on our commitment to your success and the comprehensive support we provide.
5.2 You agree not to obtain software of services similar to or the same as our Services from the Covered Providers through any other reseller or directly from the Covered Providers during the Term.
6. Statements of Work
6.1 During the Term, you may request us to supply our Services by notifying us in writing or by any other process we specify (Change Request).
6.2 We may, in our discretion, accept or reject a Supply Request. If we accept the Supply Request, we will provide you with a formal Statement of Work, and once the Statement of Work is agreed by both Parties in writing it will be binding in accordance with the terms of these Terms and the Statement of Work.
6.3 Each Statement of Work is subject to, and will be governed by, these Terms and any other conditions expressly set out in the Statement of Work. To the extent of any ambiguity or discrepancy between a Statement of Work and these Terms, will prevail.
7. Fees and Payment
7.1 In consideration for us providing the Services (as applicable), you agree to pay all amounts due under these Terms in accordance with the Payment Terms.
7.2 You acknowledge and agree that no Services (including any kick-off, training, or advisory sessions) will be delivered until the first invoice issued under the applicable Order Form has been paid in full.
7.3 If any payment has not been made in accordance with the Payment Terms, we may (at our absolute discretion, and without prejudice to any of our rights or remedies under these Terms or at Law):
(a) after a period of five (5) Business Days from the relevant due date, cease supplying our Services, and recover, as a debt due and immediately payable from you, our reasonable additional costs of doing so (including all recovery costs); and
(b) charge interest at a rate equal to the one charged to us by the provider (Usually 10-20%), plus 2% per annum, calculated daily and compounding monthly, on any such amounts unpaid 30 days after the relevant due date in accordance with the Payment Terms.
7.4 When applicable, GST payable will be clearly shown on our invoices. You agree to pay us an amount equivalent to the GST imposed on these charges. “GST” has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
7.5 Any discounted rate is provided based on your commitment to using our Software Procurement Services. If you do not renew the Agreement before the end of the Initial Term or any Renewal Period and request the contract to be transferred directly to the provider or a third-party reseller the cumulated discounts will be void. You agree to pay us the difference between the Discounted Rate and Standard Rate for all Services you received during the Term of the Agreement (including during any previous Renewal Periods). The amount will be invoiced upon termination or non-renewal and is payable within 30 days.
8. Intellectual Property
8.1 As between the Parties:
(a) we own all Intellectual Property Rights in Our Materials;
(b) you own all Intellectual Property Rights in Your Materials; and
(c) nothing in these Terms constitutes a transfer or assignment of any Intellectual Property Rights in Our Materials or Your Materials.
8.2 As between the Parties, ownership of all Intellectual Property Rights in any New Materials, including but not limited to any Deliverables that we develop for you pursuant to a Statement of Work, will vest in us upon creation. To the extent that ownership of such Intellectual Property Rights does not automatically vest in us, you hereby assign all such Intellectual Property Rights to us and agree to do all other things necessary to assure our title in such rights.
8.3 We grant you a non-exclusive, revocable, royalty-free, worldwide, non-sublicensable and non-transferable right and licence, for the duration of the Term, to use Our Materials (including the Deliverables) that we provide to you solely for your use and enjoyment of our Services, as contemplated by these Terms.
8.4 You grant us a non-exclusive, irrevocable, royalty-free, worldwide, non-sublicensable (other than to our related bodies corporate, as that term is defined in the Corporations Act 2001 (Cth) and non-transferable right and license to use Your Materials that you provide to us solely for the purpose of performing of our obligations or exercising our rights under these Terms.
8.5 If you (if you are an individual) or any of your Personnel have any Moral Rights in any material provided, used or prepared in connection with these Terms, you agree to (and will procure that your Personnel) consent to our use or infringement of those Moral Rights.
Your Data
8.6 We do not own any of Your Data, but when you provide us with Your Data, you grant us the right to access, analyse, back-up, copy, store, transmit and otherwise use Your Data during the Term (and for a reasonable period of time afterwards). We may use Your Data (or disclose it to third party service providers) to:
(a) supply the Services to you and your Personnel (for example, to enable you and your Personnel to access and use the Services), and otherwise perform our obligations under these Terms;
(b) diagnose problems with the Services;
(c) improve and develop the Services; or
(d) perform analytics for the purpose of remedying bugs or issues with the Services.
8.7 You acknowledge and agree that because of the nature of the internet, the processing and transmission of Your Data by us may occur over various networks, and may be transferred unencrypted.
8.8 You are responsible for (meaning we are not liable for):
(a) the integrity of Your Data on your Systems;
(b) where Your Data includes Personal Information, ensuring that you have the right to collect and disclose such Personal Information to us in accordance with the Privacy Act 1988 (Cth) and other applicable Laws relating to privacy; and
(c) unless otherwise agreed in a Statement of Work, backing up Your Data.
8.9 We may create anonymised statistical data from Your Data and usage of the Services (for example, through aggregation). Once anonymised, we own that data and may use it for our own purposes, such as to provide and improve the Services, to develop new services or product offerings, to identify business trends, and for other uses we communicate to you. This may include making such anonymised data publicly available, provided it is not compiled using a sample size small enough to make underlying portions of Your Data identifiable.
8.10 You acknowledge and agree that if you do not provide Your Data to us, it may impact your ability to receive the Services.
8.11 This clause 7 will survive termination or expiry of these Terms.
9. Confidential Information
9.1 Subject to clause 8.2, each Party must (and must ensure that its Personnel do) keep confidential, and not use or permit any unauthorised use of, confidential information provided by the other Party.
9.2 Clause 8.1 does not apply where the disclosure is required by law or the disclosure is to a professional adviser in order to obtain advice in relation to matters arising in connection with this Agreement and provided that the disclosing Party ensures the adviser complies with the terms of clause 8.1.
9.3 This clause 8 will survive the termination or expiry of these Terms.
10. Australian Consumer Law
10.1 In some jurisdictions, you may have guarantees, rights or other remedies provided by law (Consumer Law Rights), and these Terms do not restrict your Consumer Law Rights. We will only be bound by your Consumer Law Rights and the express wording of these Terms.
10.2 Subject to your Consumer Law Rights, we do not provide a refund for a change of mind or change in circumstance.
10.3 If you accept these Terms in Australia, nothing in these Terms should be interpreted to exclude, restrict or modify the application of, or any rights or remedies you may have under, any part of the Australian Consumer Law (as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
10.4 This clause 9 will survive the termination or expiry of these Terms.
11. Liability
11.1 Despite clause 10.2, to the maximum extent permitted by Law, but subject to your Consumer Law Rights, you indemnify us from and against any Liability that we may suffer, incur or otherwise become liable for, arising from or in connection with:
(a) any official investigation or inquiry into you, your Personnel or your operations, by a regulatory authority under powers granted to it by Law (including without limitation, any legal costs we incur as a result, or any actual economic loss we suffer if our business is publicly associated with such an investigation or inquiry); and
(b) any Personal Information provided by you to us in breach of the Privacy Act 1988 (Cth) or other applicable Laws relating to privacy.
11.2 Despite anything to the contrary but subject to your Consumer Law Rights and clause 10.1, to the maximum extent permitted by Law:
(a) neither Party will be liable for Consequential Loss;
(b) a Party’s liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel), including any failure by that other Party to mitigate its loss; and
(c) (where our Services are not ordinarily acquired for personal, domestic or household use or consumption) in respect of any failure by us to comply with relevant Consumer Law Rights, our Liability is limited (at our discretion) to supplying the Services again or paying the cost of having the Services supplied again; and
(d) our aggregate liability for any Liability arising from or in connection with these Terms will be limited to the Fees paid by you to us in respect of the supply of the relevant Services to which the Liability relates.
11.3 This clause 10 will survive the termination or expiry of these Terms.
12. Term and Termination
12.1 These Terms will operate for the Term.
12.2 Either Party may terminate these Terms at any time by giving 30 days’ notice in writing to the other Party if a party is at fault and failed to correct the breach.
12.3 These Terms will terminate immediately upon written notice by a Party (Non-Defaulting Party) if:
(a) the other Party (Defaulting Party) breaches a material term of these Terms and that breach has not been remedied within 30 Business Days of the Defaulting Party being notified of the breach by the Non-Defaulting Party; or
(b) the Defaulting Party goes bankrupt, insolvent or is otherwise unable to pay its debts as they fall due.
12.4 Upon expiry or termination of these Terms:
(a) all remaining license fee becomes immediately due
(b) without limiting and subject to your Consumer Law Rights, any payments made by you to us for Services already supplied are not refundable to you;
(c) by us pursuant to clause 11.2, you agree to pay us our additional costs, reasonably incurred, and which arise directly from such termination (including recovery fees); and
(d) by you pursuant to clause 11.2 or by us pursuant to clause 11.3, you agree to pay for the void discount in accordance with clause 6.4;
(e) we may retain your documents and information (including copies) to the extent required by Law or pursuant to any information technology back-up procedure, provided that we handle your information in accordance with clause 8.
12.5 Unless otherwise agreed between the Parties, if these Terms are terminated:
(a) by us, then any current Statement of Work will also terminate on the date of termination and we will immediately cease supplying our Services; or
(b) by you, then any outstanding Statements of Work will continue in accordance with the terms of the Statement of Work (and these Terms) until such time as the Statement of Work is complete or the Statement of Work is otherwise terminated in accordance with its terms.
12.6 You may not terminate those terms by Convenience
12.7 Termination of these Terms will not affect any rights or liabilities that a Party has accrued under it.
12.8 Termination of these term does not void the payment obligations of the licenses by the customer
12.9 This clause 11 will survive the termination or expiry of these Terms.
13. General
13.1 Amendment: Subject to clauses 1.1 these Terms may only be amended by written instrument executed by the Parties.
13.2 Assignment: Subject to clauses 12.3 and 12.11, a Party must not assign, novate or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the other Party (such consent is not to be unreasonably withheld).
13.3 Assignment of Debt: You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with these Terms, to a debt collector, debt collection agency, or other third party.
13.4 Disputes: A Party may not commence court proceedings relating to any dispute arising from, or in connection with, these Terms (Dispute) without first meeting a representative of the other Party within 0 Business Days of notifying that other Party of the Dispute. If the Parties cannot resolve the Dispute at that meeting, either Party may refer the Dispute to mediation administered by the Australian Disputes Centre.
13.5 Electronic Execution: These Terms may be executed using an Electronic Signature. The Parties acknowledge and agree that if a Party executes these Terms using an Electronic Signature, then the Party is taken to have entered into these Terms in electronic form and the Electronic Signature is deemed to be an original execution of these Terms by the Party. “Electronic Signature” means an electronic method of signing that identifies the person and indicates their intention to sign these Terms, which may include software programs such as DocuSign.
13.6 Force Majeure: Neither Party will be liable for any delay or failure to perform their respective obligations under these Terms if such delay or failure is caused or contributed to by a Force Majeure Event, provided that the Party seeking to rely on the benefit of this clause:
(a) as soon as reasonably practical, notifies the other Party in writing details of the Force Majeure Event, and the extent to which it is unable to perform its obligations; and
(b) uses reasonable endeavors to minimise the duration and adverse consequences of the Force Majeure Event.
Where the Force Majeure Event prevents a Party from performing a material obligation under these Terms for a period in excess of 60 days, then the other Party may by notice terminate these Terms, which will be effective immediately, unless otherwise stated in the notice. This clause will not apply to a Party’s obligation to pay any amount that is due and payable to the other Party under these Terms.
13.7 Governing Law: These Terms are governed by the laws of Queensland. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Queensland and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
13.8 Notices: Any notice given under these Terms must be in writing addressed to the addresses set out in these Terms, or the relevant address last notified by the recipient to the Parties in accordance with this clause. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
13.9 Publicity: Despite clause 8, you agree that we may advertise or publicise the broad nature of our supply of our Services to you, including on our website or in our promotional material.
13.10 Relationship of Parties: These Terms are not intended to create a partnership, joint venture, employment or agency relationship between the Parties.
13.11 Subcontracting: We may subcontract the supply of any part of our Services without your prior written consent. We agree that any subcontracting does not discharge us from any liability under these Terms and that we are liable for the acts and omissions of our subcontractor.
14. Definitions
In these Terms, unless the context otherwise requires, capitalised terms have the meanings given to them in the Schedule, and:
“ACL or Australian Consumer Law” means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time.
“Terms” means these terms and conditions and any agreed Statement of Work issued under it and any documents attached to, or referred to in, each of them.
“Business Day” means a day on which banks are open for general banking business in Brisbane, Queensland, excluding Saturdays, Sundays and public holidays.
“Commencement Date” means the date these Terms are accepted by you.
“Consequential Loss” includes any consequential loss, special or indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise. However, your obligation to pay us the Fees will not constitute “Consequential Loss”.
“Consumer Law Rights” has the meaning given in clause 9.1.
“Deliverables” means any materials, goods, items or other deliverables we have agreed to provide to you, as set out in each Statement of Work.
“Fees” means the fees set out in the Schedule of these Terms.
“Force Majeure Event” means any event or circumstance which is beyond a Party’s reasonable control including but not limited to, acts of God including fire, hurricane, typhoon, earthquake, landslide, tsunami, mudslide or other catastrophic natural disaster, civil riot, civil rebellion, revolution, terrorism, insurrection, militarily usurped power, act of sabotage, act of a public enemy, war (whether declared or not) or other like hostilities, ionising radiation, contamination by radioactivity, nuclear, chemical or biological contamination, any widespread illness, quarantine or government sanctioned ordinance or shutdown, pandemic (including COVID-19 and any variations or mutations to this disease or illness) or epidemic.
“Intellectual Property Rights” or “Intellectual Property” means any and all existing and future rights throughout the world conferred by statute, common law, equity or any corresponding law in relation to any copyright, designs, patents or trademarks, domain names, know-how, inventions, processes, trade secrets or confidential information, circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing, whether or not registered or registrable.
“Law” means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any government or similar authority with the power to bind or impose obligations on the relevant Party in connection with these Terms or the supply of our Services
“Liability” means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to these Terms or otherwise.
“Moral Rights” has the meaning given in the Copyright Act 1968 (Cth) and includes any similar rights in any jurisdiction in the world.
“New Materials” means all Intellectual Property developed, adapted, modified or created by or on behalf of us or you or any of your or our respective Personnel in connection with these Terms or the supply of our Services, whether before or after the date of these Terms and any improvements, modifications or enhancements of such Intellectual Property, but excludes Our Materials and Your Materials.
“Our Materials” means all Intellectual Property which is owned by or licensed to us and any improvements, modifications or enhancements of such Intellectual Property, but excludes New Materials and Your Materials.
“Personal Information” means any information or opinion about an identified individual, or an individual who is reasonably identifiable, whether the information or opinion is true or not, and whether the information or opinion is recorded in a tangible form or not.
“Personnel” mean, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents, but in respect of you, does not include us.
“Schedule” means the schedule to these Terms.
“Services” means the services set out in each Statement of Work, as adjusted in accordance with these Terms.
“Statement of Work” means a statement of work for the supply of our Services, placed in accordance with clause 3, a form of which is provided at Annexure 1 to these Terms.
“Systems” means all hardware, software, networks, telecommunications and other information technology systems used by a Party from time-to-time.
“Your Data” means the information or data supplied by you and your Personnel when receiving the Services, or stored or generated by your use of the Services, including any Personal Information collected, used, disclosed, stored or otherwise handled in connection with the Services. Your Data does not include any data or information that is generated as a result of your usage of the Services that is a back-end or internal output or an output otherwise generally not available to users of the Services.
“Your Materials” means all Intellectual Property owned or licensed by you or your Personnel before the Commencement Date (which is not connected to these Terms) and/or developed by or on behalf of you or your Personnel independently of these Terms and any improvements, modifications or enhancements of such Intellectual Property, but excludes Our Materials and New Materials.
ANNEXURE A
Click Up (Mango Technology): https://clickup.com/terms
Intellistack (Previously Formstack): https://www.formstack.com/legal/terms-of-service
Make.com (Previously Integromat): https://www.make.com/en/terms-and-conditions
