TERMS AND CONDITIONS
These Terms are between Keep It Simple Safety Pty Ltd (ABN 58 613 008 825) (we, us or our) and you, the person, organisation or entity purchasing the Goods and Services from us, as set out on any Online Form and/or Proposal (you or your), together the Parties and each a Party.
We assist businesses to set up and manage safety compliance in their business. We offer various Goods and Services, and these Terms set out the terms in which we agree to provide the Goods and Services to you.
1. Acceptance and Term
1.1 You accept these Terms by the earlier of:
(a) signing and returning the Proposal to us, including by email or any electronic executions platform acceptable to us;
(b) confirming by email that you accept these Terms and/or the Proposal;
(c) confirming that you accept these Terms via the platforms or applications through which we provide these Terms to you, including our website;
(d) instructing us (whether orally or in writing) to proceed with the provision of the Goods and Services; and
(e) making part or full payment of the Price.
1.2 These Terms will operate for the Term.
1.3 If you are confirming that you accept these Terms via the platforms or applications through which we provide these Terms to you, on behalf of your employer or a business entity, you, in your individual capacity, represent and warrant that you are authorised to act on behalf of your employer or the business entity and to bind the entity and the entity’s personnel to these Terms.
2. Goods and Services
2.1 In consideration of your payment of the Price, we will provide the Goods and Services in accordance with these Terms, whether ourselves or through our Personnel.
2.2 We will not be responsible for any Goods or Services unless expressly set out in the Online Form and/or Proposal.
2.3 You agree that we may amend the Goods and Services or the Price at any time, by providing written notice to you. If you do not agree to any amendment made to the Goods and Services or Price, you may terminate this Agreement in accordance with clause 15.1, in which case, clause 15.3 will apply.
We will commence the provision of the Goods and Services within a reasonable time after the later of:
(a) the Commencement Date;
(b) the receipt of any relevant Order under these Terms;
(c) the receipt of payment of the Price/Deposit (if any) in full; and
(d) the satisfaction of any other conditions precedent contemplated by these Terms.
4.1 These Terms constitute a “standing offer” under which, during the Term, you may engage us to provide the Goods and Services under separate Orders.
4.2 You may issue a request for us to provide further Goods and Services (beyond those Goods and Services that are particularised in the initial Online Form or Proposal) online, by email or by any other process which we may advise to you, from time to time (Order Request).
4.3 We may, in our discretion, accept or reject an Order Request. If we accept the Order Request, we will provide you with a formal Order, and once the Order is agreed by both Parties in writing, it will be binding in accordance with these Terms and the Order.
4.4 We will only be required to comply with an Order if;
(a) we have agreed to the terms of the relevant Order in writing;
(b) we have accepted the Order in accordance with the terms of the Order; or
(c) the Parties have agreed in writing to an amended Order.
4.5 Each Order is subject to, and will be governed by, these Terms and any other conditions agreed to by the Parties in writing. To the extent of any ambiguity or discrepancy between an Order and these Terms, these Terms will prevail.
5.1 You may request a variation or change to the Goods and Services, including the timing for the provision of the Goods and Services (Variation), by providing written notice (including by email) to us, with details of the Variation (Variation Request). We will not be obliged to comply with a Variation Request unless we accept the Variation Request in writing. The Parties agree to comply with these Terms as varied by the any Variation Request accepted in writing.
5.2 If we consider that any instruction or direction from you constitutes a Variation, then we will not be obliged to comply with such instruction or direction unless a Variation Request has been issued and accepted by us in accordance with clause 5.1.
6.1 In consideration for us providing the Goods and Services, you agree to pay us:
(a) the Deposit (if any);
(b) the Price (or the balance thereof);
(c) all Expenses (if any); and
(d) any other amount payable to us under these Terms,
in accordance with the Payment Terms.
6.2 If any payment has not been made in accordance with the Payment Terms, we may (at our absolute discretion):
(a) after a period of 5 business days, cease providing the Goods and Services, and recover, as a debt due and immediately payable from you, our additional costs of doing so; and/or
(b) charge interest at a rate equal to the Reserve Bank of Australia’s cash rate, from time to time, plus 2% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the due date for payment in accordance with the Payment Terms.
6.3 You will not be entitled to any part of the Goods and Services until any relevant upfront payment has been paid in full.
You agree to provide us (and our Personnel) with access to the Premises (and the facilities at the Premises) and any other premises as is reasonably necessary for us to provide the Goods and Services, free from harm or risk to health or safety:
(a) at the times and on the dates reasonably requested by us or as agreed between the Parties; and/or
(b) to enable us to comply with our obligations under these Terms or at Law.
You agree to pay our additional costs reasonably incurred as a result of you failing to comply with this clause.
8.1 This clause 8 will apply if we are providing you with Goods under the Online Form or any Order.
8.2 We will use reasonable endeavours to deliver the Goods to the Delivery Location by the Delivery Time.
8.3 As between the Parties, you agree to pay for the Delivery Costs of delivering the Goods.
8.4 Title in the Goods will only pass to you on the date that you pay the Price in full in accordance with these Terms.
8.5 Risk in the Goods will pass to you when we have delivered the Goods to the Delivery Location.
9.1 This clause 9 will apply if we are providing you with Software under the Proposal or any Order.
Third Party Software
9.2 If agreed and as described in the Proposal, we will provide the licensing of third party software as a service listed and Support Services in relation to such listed third party software as a service (Third Party Software Licence). The licensing of any software not specifically listed in the applicable Proposal or any Order is out of scope.
9.3 Where you order a Third Party Software Licence, subject to your compliance with the terms of these Terms, we grant you (and any Authorised Users) a non-exclusive, non-transferable (except with our written permission), non-sublicensable (except as otherwise permitted under this Agreement), personal and revocable licence, during the Licence Term, to access and use the Third Party Software Licence for your use and enjoyment of the Third Party Software Licence as contemplated by these Terms and any terms and conditions applicable to the Third Party Software Licence, for the Licence Term.
9.4 You agree to (and agree to ensure your Authorised Users):
(a) comply with our instructions and directions, whether written or verbal, in relation to use of any Third Party Software Licence; and
(b) comply with the terms of any applicable terms and conditions for use of the Third Party Software Licence, as provided by us to you.
9.5 You acknowledge and agree that:
(a) your acceptance of any applicable terms and conditions for use of the Third Party Software Licence, is a condition precedent to the provision of the Third Party Software Licence;
(b) you will be liable for any damages and/or loss that we incur as a result of any non-compliance by you (or your Authorised users) with clause 9.4;
(c) you agree to immediately notify us of any known or suspected breach of any applicable terms and conditions for use of the Third Party Software Licence, or other unauthorised use of the Third Party Software Licence and assist us in the enforcement of any applicable terms and conditions; and
(d) we may be required to assign and/or novate our agreement to provide you with the Third Party Software Licence, to the software vendor of the Third Party Software Licence (or the nominated party of the software vendor), and you agree to the assignment and/or novation of your rights and obligations of our provision of the Third Party Software Licence.
9.6 We will provide Implementation Services and Support Services in relation to the Third Party Software Licence, as particularised in the relevant Proposal.
9.7 For Implementation Services, you agree:
(a) to make a backup of any relevant data in your Systems which is to be the subject of, or to be used in the performance of, the Services;
(b) to make a written note of any configuration settings or information stored in your Systems;
(c) where the equipment in your System is a computer, to download and install any available:
(i) security and protection updates for the operating system you use; and
(ii) updates to virus checking and other computer protection software you use; and
(d) that not undertaking your obligations under this clause 9.7 may affect the result you wish to achieve from the performance of the Implementation Services.
9.8 For Support Services:
(a) you or your Authorised User must place a request to us, and we agree to respond to any such request on a timely basis;
(b) our supply of the Support Services is subject to you or your Authorised User supplying to us any information we require about what you have done in response to any issue and any consents, licenses, authorisations, permissions or similar which we reasonably require to respond to the request; and
(c) when providing the Support Services, we will record our time during the provision of those Support Services. If at any time, the time we record exceeds the hours of Support Services ordered by you in the Proposal, we will notify you then charge you for the additional services provided in excess of those hours in accordance with the schedule of rates to be provided by us. These services will form part of the Support Services and any additional fees will form part of the Price.
9.9 You agree that your access to and use of some parts of the Services must be in accordance with the number of Authorised Users (where applicable), as set out in the Proposal or Order.
9.10 You may, at any time, request an increase in the number of Authorised Users by submitting this request to us. To the extent possible, we will implement the increase in Authorised Users subject to you agreeing to any additional fees, which will form part of the Price. If we are unable to implement the increase, we will notify you of the reason for our refusal.
9.11 As between you and us
(a) all Customer Data is and remains your property; and
(b) you retain any and all rights, title and interest in and to the Customer Data, including all copies, modifications, extensions and derivative works.
9.12 You grant us a limited licence to use, copy, transmit, store and back-up or otherwise access the Customer Data during the Licence Term (and for a reasonable period after the Licence Term), to:
(a) supply the Services to you (including to enable you and your Personnel to access and use the Services);
(b) diagnose problems with the Services;
(c) enhance and otherwise modify the Services;
(d) perform Analytics; and
(e) as otherwise reasonably required to perform our obligations under this Agreement.
9.13 You represent, warrant and agree:
(a) that you are responsible for the collection, use, disclosure, storage and other dealings with Customer Data in connection with these Terms;
(b) to ensure, at all times:
(i) the accuracy, reliability, completeness and integrity of the Customer Data; and
(ii) that the collection and use of the Customer Data is compliant with all Laws, including all Privacy Laws;
(c) that you have provided all required notices (including notice of collection by us/disclosure to us of Personal Information and our onward disclosure to Third Party Inputs) and obtained all necessary rights, releases and permissions to provide or have the Customer Data provided to us and for our handling of the Customer Data as authorised by you in connection with these Terms;
(d) in relation to any Sensitive Information, that you have obtained consent from the individual to whom the Sensitive Information relates, to allow collection by us/disclosure to us of the Sensitive Information and our onward disclosure to Third Party Inputs, or disclosure and use as otherwise authorised by you in connection with these Terms; and
(e) that our handling of Customer Data and any Personal Information, as authorised by you in connection with these Terms:
(i) will not cause us to breach or infringe any Laws (including Privacy Laws and those relating to export control and electronic communications) or rights of any third party, including any Intellectual Property Rights, rights of privacy, or rights of publicity; and
(ii) is not inconsistent with the terms of any applicable privacy policies, privacy notices or other relevant documentation.
This clause 9.13 will survive the termination or expiry of these Terms.
9.14 Despite anything to the contrary, we may monitor, analyse and compile statistical and performance information based on and/or related to your use of the Services, in an aggregated and anonymised format (Analytics).
9.15 You agree that we may make such Analytics publicly available, provided that it
(a) does not contain identifying information; and
(b) is not compiled using a sample size small enough to make the underlying Customer Data identifiable.
9.16 We, and our licensors own all right, title and interest in and to the Analytics and all related software, technology, documentation and content used or provided in connection with the Analytics, including all Intellectual Property Rights in the foregoing.
Third Party Inputs
9.17 You agree that the Services may include Third Party Inputs that interface, or interoperate, with the Services, including third party software, hardware or services and that the provision of the Services may be contingent on, limited to or impacted by.
9.18 You must comply with our instructions and directions, whether written or verbal, in relation to the use of any Third Party Inputs. Where we provide you with any terms and conditions for use of these Third Party Inputs, you agree that you will comply with these and are liable for any damages and/or loss that we incur as a result of any non-compliance by you.
10. Warranties and Representations
10.1 Each Party represents, warrants and agrees that:
(a) it has full legal capacity, right, authority and power to enter into these Terms, to perform its obligations under these Terms, and to carry on its business;
(b) that these Terms constitute a legal, valid and binding agreement, enforceable in accordance with its terms;
(c) if applicable, it holds a valid ABN which has been advised to the other Party; and
(d) if applicable, it is registered for GST purposes.
10.2 You represent, warrant and agree:
(a) to comply with these Terms and all applicable Laws;
(b) that all information and documentation that you provide to us in connection with these Terms is true, correct and complete;
(c) to comply with our reasonable requests or requirements;
(d) to provide all assistance, information, documentation, access, facilities, authorities, consents, licences and permissions reasonably necessary to enable us to comply with our obligations under these Terms or at Law;
(e) that you have not relied on any representations or warranties made by us in relation to the Goods and Services (including as to whether the Goods and Services are or will be fit or suitable for any particular purposes), unless expressly stipulated in these Terms;
(f) that no Insolvency Event has occurred in respect of you and that you will immediately notify us if you are (or you are likely to be) the subject of an Insolvency Event;
(g) that the Goods and Services are provided to you solely for your benefit and you will not (or you will not attempt to) disclose, or provide access to, the Goods and Services to third parties without our prior written consent;
(h) that any information, advice, material, work and services (including the Goods and Services) provided by us under these Terms does not constitute legal, financial, merger, due diligence or risk management advice;
(i) that you will be responsible for the use of any part of the Goods and Services, and you must ensure that no person uses any part of the Goods and Services:
(1) to break any Law or infringe any person’s rights (including Intellectual Property Rights);
(2) to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted; or
(3) in any way that damages, interferes with or interrupts the supply of the /Goods and Services;
11. Intellectual Property
11.1 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 this Agreement constitutes a transfer or assignment of any Intellectual Property Rights in Our Materials or Your Materials.
11.2 As between the Parties, ownership of all Intellectual Property Rights in any New Materials or Improvements will at all times vest, or remain vested, in us upon creation. To the extent that ownership of such Intellectual Property Rights in any New Materials and/or Improvements do not automatically vest in us, you agree to do all things necessary or desirable to assure our title in such rights .
11.3 We grant you a non-exclusive, revocable, worldwide, non-sublicensable and non-transferable right and licence, to use Our Materials that we provide to you, the New Materials and Improvements, solely for the purposes for which they were developed and for your use and enjoyment of the Goods and Services, as contemplated by these Terms.
11.4 You grant us a non-exclusive, revocable, worldwide, non-sublicensable and non-transferable right and licence, for the duration of the Term, to use Your Materials that you provide to us solely for the purposes for which they were developed and solely for the performance of our obligations under these Terms.
11.5 If you 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 agree to ensure that your Personnel) consent to our use or infringement of those Moral Rights.
11.6 In the use of any Intellectual Property Rights in connection with these Terms, you must not (and you must ensure that your Personnel do not) commit any intellectual property breach.
11.7 This clause 11 will survive termination or expiry of these Terms.
12. Confidential Information
12.1 Each Receiving Party agrees:
(a) not to disclose the Confidential Information of the Disclosing Party to any third party;
(b) to use all reasonable endeavours to protect the Confidential Information of the Disclosing Party from any unauthorised disclosure; and
(c) to only use the Confidential Information of the Disclosing Party for the purposes for which it was disclosed or provided by the Disclosing Party, and not for any other purpose.
12.2 The obligations in clause 12.1 do not apply to Confidential Information that:
(a) is required to be disclosed in order for the Parties to comply with their obligations under these Terms;
(b) is authorised to be disclosed by the Disclosing Party;
(c) is in the public domain and/or is no longer confidential, except as a result of a breach of these Terms; or
(d) must be disclosed by Law or by a regulatory authority, including under subpoena.
12.3 Each Party agrees that monetary damages may not be an adequate remedy for a breach of this clause 12. A Party is entitled to seek an injunction, or any other remedy available at law or in equity, at its discretion, to protect itself from a breach (or continuing breach) of this clause 12.
12.4 This clause 12 will survive the termination of these Terms.
13. Australian Consumer Law
13.1 Certain legislation, including the Australian Consumer Law, and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the provision of the Goods and Services by us to you which cannot be excluded, restricted or modified (Statutory Rights).
13.2 If the ACL applies to you as a consumer, nothing in this Agreement excludes your Statutory Rights as a consumer under the ACL. You agree that our Liability for the Goods and Services provided to an entity defined as a consumer under the ACL is governed solely by the ACL and these Terms.
13.3 Subject to your Statutory Rights, we exclude all warranties, and all material, work and services (including the Goods and Services) are provided to you without warranties of any kind, either express or implied, whether in statute, at Law or on any other basis, except where expressly set out in these Terms.
13.4 This clause 13 will survive the termination or expiry of these Terms.
14. Limitations on liability
14.1 Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability, caused or contributed to by, arising from or connected with:
(a) loss of, or damage to, any property or any injury to or loss to any person;
(b) your or your Authorised Users’ acts or omissions;
(c) any use or application of the Goods and Services by a person or entity other than you, or other than as reasonably contemplated by these Terms; or
(d) any works, services, goods, materials or items which do not form part of the Goods and Services (as expressed in these Terms) or which have not been provided by us.
14.2 Despite anything to the contrary, 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) our aggregate liability for any Liability arising from or in connection with these Terms will be limited to us resupplying Goods and Services to you or, in our sole discretion, to us repaying you the amount of the Price paid by you to us in respect of the supply of the relevant Goods and Services to which the Liability relates.
14.3 This clause 14 will survive the termination or expiry of these Terms.
15.1 Either Party may terminate these Terms at any time by giving 30 days’ notice in writing to the other Party.
15.2 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  Business Days of the Defaulting Party being notified of the breach by the Non-Defaulting Party; or
(b) the Defaulting Party is unable to pay its debts as they fall due.
15.3 Upon expiry or termination of these Terms:
(a) we will immediately cease providing the Goods and Services;
(b) without limiting your Statutory Rights, you agree that any payments made by you to us are not refundable to you;
(c) you are to pay for all Goods and Services provided prior to termination, including Goods and Services which have been provided and have not yet been invoiced to you, and all other amounts due and payable under these Terms;
(d) by you pursuant to clause 15.1 or by us pursuant to clause 15.2, you also agree to pay us our additional costs, reasonably incurred, and which arise directly from such termination; and
(e) you agree to promptly return (where possible), or delete or destroy (where not possible to return), any information, documentation or material owned by us that is in your possession or control, subject to any rights you may have to any Intellectual Property in accordance with clause 11.
15.4 Unless otherwise agreed between the Parties, if these Terms are terminated, then any current Order will also terminate on the date of termination.
15.5 We will retain your documents (including copies) as required by law or regulatory requirements. Your express or implied agreement to these Terms constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on expiry or termination of these Terms.
15.6 Termination of these Terms will not affect any rights or liabilities that a Party has accrued under it.
15.7 This clause 15 will survive the termination or expiry of these Terms.
16.1 If GST is payable on any supply made under these Terms, the recipient of the supply must pay an amount equal to the GST payable on the supply. That amount must be paid at the same time that the consideration is to be provided under these Terms and must be paid in addition to the consideration expressed elsewhere in these Terms, unless it is expressed to be inclusive of GST. The recipient is not required to pay any GST until the supplier issues a tax invoice for the supply.
16.2 If an adjustment event arises in respect of any supply made under these Terms, a corresponding adjustment must be made between the supplier and the recipient in respect of any amount paid by the recipient under this clause, an adjustment note issued if required, and any payments to give effect to the adjustment must be made.
16.3 If the recipient is required under these Terms to pay for or reimburse an expense or outgoing of the supplier, or is required to make a payment under an indemnity in respect of an expense or outgoing of the supplier, the amount to be paid by the recipient is to be reduced by the amount of any input tax credit in respect of that expense or outgoing that the supplier is entitled to.
16.4 The terms “adjustment event”, “consideration”, “GST”, “input tax credit”, “recipient”, “supplier”, “supply”, “taxable supply” and “tax invoice” each has the meaning which it is given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
17.1 Publicity: With your prior written consent, You agree that we may advertise or publicise the broad nature of our provision of the Goods and Services to you, including on our website or in our promotional material.
17.2 Privacy: Each Party agrees to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines.
17.3 Email: You agree that we are able to send electronic mail to you and receive electronic mail from you. To the maximum extent permitted by law, you release us from any Liability you may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to your system or any files by a transfer.
17.4 Amendment: These Terms may only be amended by written instrument executed by the Parties.
17.5 Assignment: Subject to clause 17.6, a Party must not assign 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).
17.6 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.
17.7 Counterparts: These Terms, or any Online Form, Proposal or Order may be executed in any number of counterparts that together will form one instrument.
17.8 Online execution: These Terms may be executed by means of such third party online document execution service as we nominate subject to such execution being in accordance with the applicable terms and conditions of that document execution service.
17.9 Disputes: A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, these Terms (including any question regarding its existence, validity or termination) (Dispute) without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute. If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either Party may ask the Law Institute of Victoria to appoint a mediator. The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.
17.10 Entire agreement: These Terms contains the entire understanding between the Parties, and supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.
17.11 Further assurance: You agree to promptly do all things and execute all further instruments necessary to give full force and effect to these Terms and your obligations under it.
17.12 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. 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
17.13 Governing law: These Terms governed by the laws of Victoria. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Victoria and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
17.14 Notices: Any notice given under these Terms must be in writing addressed to the relevant address last notified by the recipient to the Parties. 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.
17.15 Relationship of Parties: These Terms are not intended to create a partnership, joint venture, employment or agency relationship between the Parties.
17.16 Severance: If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these Terms.
In these Terms, unless the context otherwise requires, capitalised terms have the meanings given to them below:
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.
Analytics has the meaning given in clause 9.14.
Authorised User, if applicable, means a user permitted to access and use some or all of the Software, as further particularised in the Proposal or agreed Order.
Business Day means a day on which banks are open for general banking business in Victoria, excluding Saturdays, Sundays and public holidays.
Commencement Date means the date these Terms are accepted by you in accordance with clause 1.1.
Confidential Information includes information which:
(a) is disclosed to the Receiving Party in connection with these Terms at any time;
(b) is prepared or produced under or in connection with these Terms at any time;
(c) relates to the Disclosing Party’s business, assets or affairs; or
(d) relates to the subject matter of, the terms of and/or any transactions contemplated by these Terms,
whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever the Receiving Party receives that information.
Consequential Loss includes any consequential loss, 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. The Parties acknowledge and agree that your obligation to pay us the Price and any other amounts due and payable by you to us under these Terms will not constitute “Consequential Loss” for the purposes of this definition.
Customer Data means the information, materials, logos, documents, qualifications and other Intellectual Property, Personal Information or data inputted or created by you, your Personnel, Authorised Users and any customers or users and made accessible to us as part of the Services, or (subject to the terms of any Third Party Software Licences or other third party terms) stored by the Services or generated by the Services as a result of your use of the Services.
Defaulting Party has the meaning given in clause 15.1.
Delivery Costs means the costs associated with the delivery or provision of the Goods, including any insurance, customs, tariffs, duties or other such charges that may apply to the Goods.
Delivery Location means the location where the Goods are to be delivered, as agreed between the Parties.
Delivery Time means the time for the delivery of the Goods, as agreed between the Parties.
Deposit means any deposit included in the Price.
Disclosing Party means the party disclosing Confidential Information to the Receiving Party.
Dispute has the meaning given in clause 17.9.
End Date means the date these Terms are terminated in accordance with its terms.
Expenses means any disbursements, including travel and accommodation costs and third party costs, reasonably and directly incurred by us and approved in advance by you for the purpose of the provision of the Goods and Services.
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.
Goods means the goods we agree to provide to you under these Terms, as is further particularised in any Online Form or agreed Order.
Implementation Services means services relating to the implementation of any Third Party Software Licence, and may include setting up Authorised Users, providing training or uploading Customer Data into the Software, as is further particularised in the Proposal or any agreed Order.
Improvements means any development, modification, adaptation or improvement of Our Materials or any New Materials made by or on behalf of either Party (or any of their respective Personnel), or in respect of which Intellectual Property Rights are acquired by, either Party during the Term.
Insolvency Event means any of the following events or any analogous event:
(a) a Party disposes of the whole or any part of the Party’s assets, operations or business other than in the ordinary course of business;
(b) a Party ceases, or threatens to cease, carrying on business;
(c) a Party is unable to pay the Party’s debts as the debts fall due;
(d) any step is taken by a mortgagee to take possession or dispose of the whole or any part of the Party’s assets, operations or business;
(e) any step is taken for a party to enter into any arrangement or compromise with, or assignment for the benefit of, a Party’s creditors or any class of a Party’s creditors; or
(f) any step is taken to appoint an administrator, receiver, receiver and manager, trustee, provisional liquidator or liquidator of the whole or any part of a Party’s assets, operations or business.
Intellectual Property means any copyright, registered or unregistered designs, trade marks or patents; domain names, know-how, inventions, processes, trade secrets or Confidential Information; or 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.
Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property.
Laws means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any person with the authority to bind the relevant Party in connection with these Terms or the provision of the Goods and 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.
Licence Term means the term of the Third Party Software Licence, as further particularised in any Proposal or agreed Order.
Moral Rights has the meaning given in the Copyright Act 1968 (Cth).
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 this Agreement or the provision of the Goods and Services, whether before or after the date of these Terms.
Non-Defaulting Party has the meaning given in clause 15.1.
Online Form means an online form that you complete on our website for the purchase of the Goods the subject of the Online Form.
Order means an order for the provision of the Goods and Services, issued by us in accordance with clause 4.
Order Request has the meaning given in clause 4.2.
Our Materials means all work, models, processes, technologies, strategies, materials, information, documentation, and services that we may provide to you under these Terms, and which may contain material which is owned by or licensed to us, and is protected by Australian and international laws.
Payment Terms means the payment terms for the Goods and Services, as set out in the Online Form, Proposal, or any agreed Order.
Personal Information is defined in the Privacy Act 1988 (Cth) and also includes any similar term as defined in any other privacy law applicable to you.
Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents, but in respect of you, does not include us.
Premises means any site or location, which will be the subject of the Services, and for which we will require access in order to provide the Services.
Price means the price set out in the Online Form, Proposal, or in any agreed Order, and includes the Deposit, if any.
Privacy Laws means the Privacy Act 1988 (Cth) and in respect of you, any other privacy laws, regulations or binding codes applicable to you.
Proposal means the proposal provided by us to you, for the provision of the Services, and may include any document titled “Implementation Plan”.
Receiving Party means the party receiving Confidential Information from the Disclosing Party.
Sensitive Information is as defined in the Privacy Laws.
Services means the services we agree to provide to you under these Terms, as is further particularised in any Proposal or agreed Order.
Software means the software as a service that is the subject of the Third Party Software Licence, as is further particualrised in any Proposal or agreed Order.
Support Services means the support we provide to you for the Third Party Software Licence, as is further particualrised in any Proposal or agreed Order.
Systems means all hardware, software, networks and other systems used by a Party from time to time, including a network.
Statutory Rights has the meaning given in clause 16.1.
Term means the period of these Terms, commencing on the Commencement Date and continuing until the End Date, unless earlier terminated in accordance with its terms.
Terms means these terms and conditions and any Online Form, Proposal or agreed Order issued under it and any documents attached to, or referred to in, each of them.
Third Party Inputs means third parties or any goods and services provided by third parties, including customers, end users, suppliers, transportation or logistics providers or other subcontractors which the provision of the Services may be contingent on, or impacted by.
Third Party Software Licence has the meaning given in clause 9.2.
Variation has the meaning given in clause 5.1.
Variation Request has the meaning given in clause 5.1.
Your Materials means all work, models, processes, technologies, strategies, materials, information, documentation and services (including Intellectual Property), owned or licensed by you or your Personnel before the Commencement Date and/or developed by or on behalf of you or your Personnel independently of these Terms.
In these Terms, unless the context otherwise requires:
(a) a reference to these Terms or any other document includes the document, all schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time;
(b) a reference to “Goods and Services” or “Goods or Services” includes “Goods and/or Services”;
(c) a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time;
(d) a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity and vice versa;
(e) no clause will be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it;
(f) a reference to a party (including a Party) to a document includes that party’s executors, administrators, successors, permitted assigns and persons substituted by novation from time to time;
(g) a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally;
(h) a reference to time is to local time in Victoria; and
(i) a reference to $ or dollars refers to the currency of Australia from time to time.
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