NodApp PTY LTD Software Usage Terms and Conditions
(a) These terms and conditions form a legally binding agreement between the Customer (you, your) and NodApp Pty Ltd ABN 68 609 924 487 (NodApp, we, us, our), and includes the Subscription Form, all other terms, conditions, notices and disclaimers, displayed on the Software or the NodApp Site, which together, govern our relationship with you (Agreement).
(b) By agreeing to these terms and conditions (whether via the NodApp Site or otherwise), you confirm that you agree to enter into this legally binding Agreement with us. If you are entering into this Agreement with us on behalf of a company or other legal entity that you are authorised to represent, then you warrant and represent to us that you have the authority to bind that entity to this Agreement.
(c) If you do not agree to the terms of this Agreement, you will not be provided with access to, or use of, the Services.
2. DEFINITIONS AND INTERPRETATION
2.1 Defined Terms Under this Agreement, the following terms and expressions have, unless the context otherwise requires, the following meanings:
- Additional Charges means the fees incurred by you upon you exceeding any of your Plan Inclusions allocated for your Subscription Plan, with such fees being charged in accordance with any pricing schedule provided by us to you, or as displayed on the NodApp Site, from time to time;
- Applicable Laws means:
(a) all applicable Australian law that applies to the parties, this Agreement and the transactions contemplated by them; and
(b) all relevant rules and regulations of any Governmental Agency.
- Approved Purpose means the purpose of the Customer (including any User on behalf of a Customer) providing the kinds of services that the Customer is in the business of providing to its Clients;
- Authorisations has the meaning given to that term in clause 12.1(d);
- Business Day means any day other than a Saturday, Sunday or public holiday on which banks are open for business in Sydney, New South Wales, Australia;
- Claim means any allegation, debt, cause of action, liability, claim, proceeding, suitor demand of any nature howsoever arising and whether present or future, fixed or unascertained, actual or contingent, whether at law, in equity, under statute or otherwise;
- Client means a person that has engaged the services of the Customer;
- Confidential Information means all information used by or relating to a party that is, or could reasonably expected to be regarded as, confidential, and:
(a) in relation to us, includes this Agreement, theNodApp Intellectual Property and all other documents, information or materials provided to you by us in connection with the Services;
(b) in relation to you, includes this Agreement, all Customer Intellectual Property, Personal Information and any information that you provide to us in connection with our provision of the Services to you, but does not include any information:
(c) that is in or becomes part of the public domain other than through breach of this Agreement or an obligation of confidence; or
(d) if the information was already known by a party receiving the information before it was disclosed to them, unless such knowledge arose from a disclosure of information in breach of an obligation of confidentiality;
- Consequential Loss means any loss of profits, loss of revenue, loss of production, loss or denial of opportunity, loss of or damage to goodwill, loss of business reputation, future reputation or publicity, loss of use, loss of interest, losses arising from Claims by third parties, loss of or damage to credit rating, loss of anticipated savings, whether direct, indirect or consequential;
- Corporations Act means the Corporations Act 2001 (Cth);Customer means the person receiving the Services under this Agreement, as specified in the Subscription Form;
- Customer Intellectual Property has the meaning given to that term in clause 8.3(a);
- Deferred Payment Right has the meaning given to that term in clause 6.2;
- Devices means (whether physical or virtual) a server, system, workstation, computer, mobile device or end point upon which or through the Services are used, or on which the Software is accessed;
- Dispute has the meaning given to that term in clause 15.1;
- Documentation means the documentation prepared or provided to you through your use of theSoftware and - Document has a corresponding meaning;
- Event of Default means an event described in clause 9;
- Feedback has the meaning given to that term in clause 8.2(a);
- Force Majeure Event has the meaning given to it in clause 14.1;
- Further Term means, as applicable:(a) a period of 12 months (or any other such period as agreed between the parties) commencing from the expiry of the Initial Term; or (b) each 12 month period (or any other such period as agreed between the parties) for which the Term is extended, in circumstances where the Agreement has already been renewed beyond the Initial Term;
- Governmental Agency means any government or governmental, administrative, monetary, fiscal or judicial body, department, commission, authority, tribunal, agency or entity in any part of the world and includes any self-regulatory organisation established under statute or stock exchange;
- Initial Term means the period commencing on the Subscription Date and continuing for the period so described in the Subscription Form;
- Insolvency Event means any of the following:
(a) an order is made that a corporate client be wound up;
(b) an application is made to a court for an order: (i) that a corporate client be wound up; (ii) appointing a liquidator or provisional liquidator for a corporate client;
(c) a liquidator, provisional liquidator or controller is appointed to a corporate client;
(d) a corporate client is dissolved or wound up in any other way;
(e) you are or state that you are unable to pay your debts as and when they fall due;
(f) you become insolvent or commit an act of bankruptcy or your estate comes within the law dealing with bankrupts;
(g) a bankruptcy petition is presented in respect of you or, if a partnership, in respect of one or more of the partners, or if a company, a receiver, trustee, administrative receiver or similar officer is appointed;
(h) if execution is levied against your business or your property and is not removed, released, lifted, discharged or discontinued within twenty-eight (28) days;
(i) any other event having substantially the same legal effect as the events specified in paragraphs (a)to (h)above;
(j) any security created by any mortgagee or charge becomes enforceable against you and the mortgagee or chargee takes steps to enforce the security or charge;
(k) any indebtedness of you or any of your RelatedCorporations becomes immediately due and payable, or capable of being declared so due and payable, prior to its stated maturity by reason of your default or the default of any of your subsidiaries, or you or any of your subsidiaries fail to discharge any indebtedness on its due date;
Intellectual Property Rights means all past, present and future rights of the following types that may exist or be are to be created under the laws of any jurisdiction in the world:
(a) ights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights;
(b) trade mark and trade name rights and similar rights;
(c) trade secret rights;
(d) patent and industrial property rights; and
(e) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the rights referred to in paragraphs (a)through (d)above;
- Instalments means the payments required to be made by you in accordance with the PaymentTerms, with the aggregate of all instalments being equal to the sum of theSubscription Fees payable for the Initial Term, and any Further Term, as the case may be;
- Interest Rate means the Australian Taxation Office (ATO) general interest charge rate, which can be found on the ATO website and is updated on a monthly basis;
- Licence has the meaning given to that term in clause 4.1;
- Metadata means any system-generated data that is created or generated in connection with our provision of the Services to you (including in the use, processing, storing or hosting of any information, material, data, dataset or database), and includes any descriptive, structural and administrative metadata that describes, explains, locates or otherwise allows for the retrieval, use, preservation or management of an information source and, for the sake of clarity, excludes any Personal Information;
- Moral Rights means rights of integrity, rights of attribution and other rights of an analogous nature which may now exist or which may exist in the future in respect of the Licensed Property under the Copyright Act 1968 (Cth) or under the law of a country other than Australia;
- NodApp Intellectual Property has the meaning given to that term in clause 8.1;
- NodApp Site means https://www.noddocs.com/ or any such other online site utilised by us to facilitate the provision ofServices to you;
- Payment Terms means the scheduled dates for payment of Instalments by you to us as specified in theSubscription Form, or as otherwise selected by you via your SubscriptionAccount prior to the commencement of any Further Term;
- Personal Information has the meaning given to that term under Privacy Law;
Plan Inclusions means the product and support plan inclusions for your selected SubscriptionPlan, as specified in the Subscription Form;
- Privacy Law means the Privacy Act 1988 (Cth) and all corresponding regulations;
- Related Body Corporate has the meaning given to it in the Corporations Act;
- Reporting means any data delivered to you within the Software or as an additionalService from time to time under this agreement.
- Services means:
(a) the Software; and
(b) product and support services provided to you byNodApp from time to time under this Agreement, in accordance with your Subscription Plan;
- Software means the software owned by NodApp, as specified in the Subscription Form and licensed to you pursuant to this Agreement, including software designed to prepare the Documentation, and which comprises:
(a) digitally coded, machine readable, scalable outline font data as encoded in a special format;
(b) all codes, techniques, software tools, format, design, concepts, methods and ideas associated with the software;
(c) all documentation related to the software provided by NodApp solely for the purpose of accessing the Services;
(d) all updates, new releases or versions, modifications or enhancements to the software; and
(e) all Metadata;
Subscription Account means the account created with us in respect of your subscription to receive the Services pursuant to this Agreement upon your submission of aSubscription Form, whether online via the NodApp Site or otherwise;
Subscription Date means the date on which your subscription to receive the Services under this Agreement will commence, being:
(a) the date so specified in the Subscription Form; or
(b) if no such date is specified in the SubscriptionForm, the date that you accept this Agreement;
- Subscription Form means NodApp’s standard subscription form submitted to us by you in connection with this Agreement, including any such subscription documentation submitted via the NodApp Site;
- Subscription Fees means the subscription fees that correspond to your Subscription Plan, as specified in the Subscription Form, or such subscription fees as otherwise disclosed to you by us at the time of you making any changes to your Subscription Plan or renewing this Agreement for any Further Term;
- Subscription Plan means:(a) the plan specified in the Subscription Form; or(b) the plan otherwise selected by you from time to time by:(i) notifying us in writing of a change to your plan; or(ii) updating your Subscription Account via theNodApp Site;
- Term has the meaning given to that term in clause 3.1;
- Territory means Australia;
- User means an individual that is appropriately authorised by you to use theServices, Software and Documentation, for whom you have purchased a subscription or to whom you have supplied a user identification and password.Users may only include your employees, consultants, and contractors;
- Viruses means any form of malicious code, trojan horses, malware, spam, viruses, or other destructive technology and Virus has a corresponding meaning.
Unless a contrary intention appears in thisAgreement:
(a) headings and examples are for reference only and do not affect the construction of this Agreement;
(b) the singular includes the plural and the plural includes the singular;
(c) a gender includes all other genders;
(d) any reference in this Agreement to ‘person’ includes any individual, firm, company, partnership, joint venture, an unincorporated body or association, trust, corporation or other body corporate and any Governmental Agency (whether or not having a separate legal personality);
(e) a reference to a document (including this Agreement) includes all amendments or supplements to, or replacements or novation of, that document;
(f) if there is any conflict between this Agreement and any Applicable Law, the Applicable Law (to the extent it cannot be excluded or modified by this Agreement) will prevail;
(g) all references in this Agreement to times of the day are to the time in Sydney, New South Wales, Australia, unless otherwise specified.
(h) a reference to a party to any document includes that party’s successors and permitted assigns;
(i) a reference to any legislation includes all delegated legislation made under it and includes all amendments, consolidations, replacements or re-enactments of any of them, from time to time;
(j) a provision of this Agreement must not be construed to the disadvantage of a party merely because that party was responsible for the preparation of this Agreement or the inclusion of the provision in it.
(k) if an act must be done on a specified day which is not a Business Day, the act must be done instead on the next Business Day; and
(l) a reference to ‘$’, ‘A$’, ‘AUD’, ‘dollars’ or ‘Dollars’ is a reference to the lawful currency of the Commonwealth of Australia.
3. TERM OF AGREEMENT
This Agreement commences on the Subscription Date and continues for the Initial Term, unless:
(a) it is terminated earlier in accordance with clauses 9.2 or 11; or
(b) it is extended for a Further Term pursuant to clause 3.2, (Term).
3.2 Further Term
(a) Prior to the expiry of the Initial Term, or any Further Term for which the Agreement has been renewed (as applicable), you may renew the Agreement for a Further Term by:
(i) accessing your Subscription Account on the NodApp Site and selecting the option to renew the Agreement for a Further Term; or
(ii) advising us in writing that you wish to renew the Agreement for a Further Term.
(b) For the avoidance of doubt, if the Term has not been extended by you in accordance with clause
(a), then this Agreement will terminate automatically upon the expiry of the Term.
4.1 Granting of Licence
Subject to payment by you of the Subscription Fees in accordance with clause 6, NodApp grants you a limited, non-exclusive, non-transferable and revocable licence to access and use the NodApp Intellectual Property:
(a) for the duration of the Term;
(b) for the Approved Purpose;
(c) in the Territory; and
(d) subject to this Agreement,(Licence),with such use of, and access to, the NodApp Intellectual Property being subject to the limitations of your Subscription Plan in accordance with clause 4.2.
4.2 Subscription Plan
(a) In granting you the Licence, we agree to provide you with access to and use of the Services, in accordance with your Subscription Plan.(b) In the event that you exceed the Plan Inclusions allocated for your Subscription Plan:(i) we may notify you via your Subscription Account that you have exceeded your Plan Inclusions; and(ii) you agree and acknowledge that you are liable to pay for any Additional Charges that you incur as a result of you exceeding anyof the Plan Inclusions allocated for your Subscription Plan; and(iii) any Additional Charges incurred by you will be due and payable, in addition to any Subscription Fees, in accordance with clause 6.3(b).(c) You may, at any time, elect to upgrade your Subscription Plan to the next largest Subscription Plan either by accessing your Subscription Account via the NodAppSite or by notifying us in writing.
4.3 Licence Restrictions
You agree and acknowledge that you must not:(a) provide, make available to, or permit any person (other than your Users) to use or access the Services in whole or in part;(b) copy, reproduce, republish, upload, post, or transmit any of the Services or any information that you have obtained via the Services, with the exception of distributing any Documentation to your Client for which it was created;(c) licence, sell, resell, rent, lease, transfer, distribute, or otherwise transfer any rights to the Services or Software, unless as expressly authorised by us in writing;(d) modify, translate, reverse engineer, decompile, disassemble, create derivative works, or otherwise attempt to derive the source code of the Software;(e) create, market or distribute add-ons or enhancements or incorporate into another product the Services or Software, without our prior written consent;(f) remove any proprietary notices or labels on the Services or Software, without our prior written consent;(g) use the Licence for any purpose other than the Approved Purpose;(h) use the Services or Software to store or transmit infringing, libellous, unlawful, or tortious material or to store or transmit material in violation of third party rights, including privacy rights and Intellectual Property Rights;(i) use the Services or Software to violate any third party rights;(j) use the Services or Software to store or transmit any Viruses;(k) interfere with, impair, or disrupt the integrity or performance of the Services or any other third party’s use of the Services;(l) use the Services in a manner that we consider, in our absolute discretion, to result in excessive use, bandwidth, or storage; or(m) alter, circumvent, or provide the means to alter or circumvent the Services orSoftware, including technical limitations, recurring fees, or usage limits.
5. USE OF THE SERVICES
5.1 Provision of advice to Client
(a) You agree and acknowledge that: (i) we do not provide any advice whatsoever in the course of providing the Services, including but not limited to: (A) financial advice; (B) legal advice; (C) insurance advice; and (D) any other professional services advice, regardless of whether such advice is general in nature; (ii) you are responsible for reviewing, updating, tailoring, customising and fact-checking all Documentation that has been prepared by you through your use of the Services; and (iii) we do not review or fact-check of any of the information that you provide to us in connection with our provision of the Services.(b) All communications with Clients, and the provision of your services to Clients, will occur between you and your Clients directly. We will not, under any circumstances, contact or communicate with your Client in connection with your provision of services to that Client.
5.2 Use of Services at your own riskYou agree and acknowledge that your use of the Services is at your own risk and that we are under no obligation to:(a) satisf yourselves as to the suitability of the Documentation or Reporting for your business or any of your Clients; or(b) monitor your use of, or advise you in relation to, the Services, Software, Reporting or Documentation.
5.3 Reliance on your own judgmentYou agree and acknowledge that:(a) you understand the risks of using the Services, and accordingly, will rely solely upon your own judgement when issuing any Documentation to a Client;(b) we are not required to review, check or update any of the Documentation for errors, correctness or compliance with Applicable Law; and(c) we will primarily rely upon your Feedback and support requests to identify any issues with the Services.
5.4 Your ObligationsYou acknowledge, agree, and warrant that:(a) the Services may only be accessed on the Devices owned by you, or your Users;(b) you will be responsible for your and your Users’ activity and compliance with thisAgreement. If you become aware of any breach of any obligation of thisAgreement by any User, you will immediately terminate, suspend or otherwise revoke the relevant User’s access to the Services and notify us immediately;(c) you and your Users will comply with all Applicable Laws while using and accessing theServices;(d) you and your Users will comply with all directions and instructions provided by us from time to time in respect of your use of the Services;(e) you are solely responsible, at your own cost, for:(i) establishing a constant internet connection and electrical supply for the use of the Services;(ii) ensuring any Device used by you or any User is free of Viruses, capable of supporting the Software and that the Software is accessed on a supported platform; and(iii) ensuring all Users are otherwise able to effectively access and use the Services;(f) you are solely responsible for, and have obtained all required forms of consent to access and use any system or network, as required, in order for you to effectively use the Services;(g) you will be solely responsible for the accuracy, security, quality, integrity, and legality of any: (i) system; (ii) network; or (iii) Device,required for you and your Users to use and access the Services;(h) you will keep your registration information, contact information, billing information, and technical data accurate, complete and current for the duration of the Term;(i) in connection with your use of the Services, you will not do any act or thing that may, or is likely to, result in a breach (actual or perceived) of anyIntellectual Property Rights of any third party; and(j) you will promptly notify us of any change to the information provided to us by you that may affect our provision of Services to you under this Agreement.
5.5 Virus detection(a) You will be responsible, at your own cost, for: (i) the installation, maintenance and proper use of anyVirus detection and scanning program we require you to maintain from time totime; and (ii) carrying out Virus checks on a regular basis.(b) You must ensure that no Viruses are introduced into our computer system or network and you agree to indemnify us on demand for any loss, damage or cost that we may suffer arising as a result of your breach of this obligation.
5.6 Maintaining your DevicesFor the duration of the Term, you must:(a) ensure that your Device is properly maintained in good order and is suitable for theSoftware;(b) run all tests and provide such information to us as we consider necessary to establish that your Device satisfies the technical requirements that are specified under this Agreement, or that are otherwise notified by us to you from time to time;(c) inform us immediately of any unauthorised access to the Software via your Device (or any Device utilised by a User) and, if within your control, cause such unauthorised use to cease; and(d) take all reasonable measures to ensure the Device from which you have accessed such Software is not left unattended, or let anyone else use the Device, until you have securely logged off from the Software.
5.7 System defects(a) In the event you become aware of a material defect, malfunction or Virus in your Device’s systems or in the Software, you must immediately notify us of such defect, malfunction or Virus and cease all use of the Software until you have received our written permission to resume use.(b) In the event that you receive any data or information via the Software other than that which you are entitled to receive pursuant to this Agreement, you must immediately notify us and agree not to access or use, in any way whatsoever, such data or information.
6. FEES AND PAYMENTS
(a) In consideration of us providing the Services to you for the Term in accordance with the terms of this Agreement, you agree to pay: (i) the Subscription Fees; and (ii) any Additional Charges and any other additional fees that become due and payable by you under this Agreement,in accordance with the terms of this clause 6. (b) You must pay to us the Subscription Fees, in full: (i) on or before the commencement of the Initial Term; and (ii) if this Agreement is renewed for any Further Term, on or before the commencement of any Further Term.(c) You agree to make all payments due and payable to us under this Agreement by way of direct debit to our nominated bank account.(d) In the event that you upgrade your Subscription Plan in accordance with clause 4.2(c): (i) we will issue you with a tax invoice for the amount of the difference for that upgraded Subscription Plan, calculated on a pro-rata basis from the date that the upgrade occurred until the date that the next quarterly payment is due; and (ii) we will charge you, and you will be required to pay, the applicable Licence Fee for the upgraded Subscription Plan for the remainder of the Term.(e) Except as otherwise expressed in this Agreement, any Subscription Fees, Additional Charges or any other amounts paid to us are not refundable.
6.2 Deferred Payment Right
(a) Notwithstanding clause 6.1(b), you will be permitted to make payment of the Subscription Fees owing to us by way of regular Instalments in accordance with the Payment Terms until such time as the Subscription Fees are paid in full (Deferred Payment Right), on the condition that you pay the Instalments to us on or before the dates required by the Payment Terms.(b) In the event that you do not make payment of the Instalments to us on or before the dates required by the Payment Terms, we will be entitled to revoke the DeferredPayment Right, and you will be required to make payment to us of the full amount of the Subscription Fees, less the sum of any Instalments already paid by you, within 3 Business Days of receiving notice from us of the revocation of the Deferred Payment Right.(c) You agree and acknowledge that we will be under no obligation to provide the Services to you or otherwise comply with our obligations under this Agreement:(i) until you have made payment of the first Instalment in accordance with the Payment Terms; and(ii) at any stage during the Term in circumstances where you have not complied with the Payment Terms and any Instalments become due and remain outstanding, regardless of whether we have revoked the Deferred Payment Right in accordance with clause 6.2(b).(d) Clauses 6.2(a) and 6.2(b) survive the termination of this Agreement, until such time as the Subscription Fees are paid in full.(e) For the purposes of this clause 6, time is of the essence.
(a) We will provide you with a tax invoice in accordance with the GST Law in relation to fees payable under this clause 6.
(b) Payment of any Additional Charges, or any other fees payable by you under thisAgreement, will be made by you in accordance with the timeframe specified in our tax invoice, and if no such timeframe is specified, then payment will be due within 10 Business Days after receiving our tax invoice.
6.4 Variation of fees
You agree and acknowledge that we are entitled to vary any fees, rates and charges associated with this Agreement during the Term, by providing 10 Business Days’ notice to you prior to the change being implemented.
6.5 Default interest
(a) Without limiting any other action or remedy available to us at law or under this Agreement, if you fail to make any payment required under this Agreement when it falls due, interest will be charged (and you will pay interest) on the outstanding sum calculated at the Interest Rate.
(b) Interest is compounded and calculated daily and accrues from the date payment was due until the date all outstanding sums are paid in full.
(c) You agree that any interest charged by you under this clause 6.5 is a reasonable and genuine pre-estimate of loss that would be suffered by us as a result of any failure by you to make a payment to us as required by this Agreement.
7.1 Definitions and interpretation
For the purposes of this clause 7:
(a) GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
(b) words and phrases which have a defined meaning in the GST Act have the same meaning when used in this clause, unless the contrary intention appears; and
(c) each periodic or progressive component of a supply to which section 156-5(1) of theGST Act applies is to be treated as if it were a separate supply.
7.2 Consideration is GST exclusive
Any consideration to be paid or provided for a supply made under or in connection with this Agreement does not include an amount of GST.
7.3 Taxable supply
If the supply of goods or services by one party (Supplier) to another party (Recipient) under this Agreement is a taxable supply, then the amount due to the Supplier for that supply will be the sum of:
(a) the amount that is payable under this Agreement by the Recipient for that supply(or, if no amount is payable, the value of that supply); and
(b) the amount of GST payable by the Supplier in respect of that supply.
7.4 Imposition of GSTIf aSupply is a taxable supply, then the Recipient will pay to the Supplier an amount equal to the GST imposed on the Supply within five (5) Business Days of the Recipient’s receipt of a written notice from the Supplier stating the amount payable by the Recipient in respect of the Supply together with a tax invoice, which conforms with the GST Act, in respect of the Supply.
7.5 Tax invoice
The Recipient’s obligation to pay to the Supplier the amount by which consideration is increased under clause 7.4 is subject to the Supplier first providing to the Recipient a tax invoice conforming to the requirements of the GST Act.
7.6 Penalty and indemnity
If a party becomes liable for any penalties or interest as a result of a late payment of GST by the other party, the other party shall pay to the first party and additional amount on demand equal to the amount of those penalties and interest and that other party shall indemnify the first party for any loss or expense incurred as a result of the late payment of GST.
8. INTELLECTUAL PROPERTY
8.1 Ownership of Intellectual PropertyYou acknowledge and agree that:
(a) all right, title and interest in and to all Intellectual Property Rights and other proprietary rights, arising out of or relating to:
(i) the Services;
(ii) the Software;
(iii) the Metadata; (NodApp Intellectual Property) belong exclusively to NodApp, its suppliers or licensors (as applicable); and
(b) nothing in this Agreement transfers or assigns, or purports to transfer or assign, any ownership of the NodApp Intellectual Property to any person, whatsoever.
8.2 Ownership of Feedback
(a) You agree that any:
(i) suggestions provided to us by you in connection with the Services or Software;
(ii) modification or enhancement requests in respect of the Services or Software;
(iii) recommendations or feedback provided by you in respect of the Services or Software, (Feedback) form part of the NodApp Intellectual Property, and all rights, title and interest in the Intellectual Property Rights subsisting in the Feedback are owned by us.
(b) You agree to assign any right, title and interest you may have to the Feedback and agree to do all acts and things (including execute any document) that may be required so that the Feedback is owned by us.
(c) You agree to waive any and all Moral Rights that you, or any User, may have in respect of the Feedback.
8.3 Ownership of Documentation
We acknowledge and agree that:
(a) all rights, title and interest in and to the Intellectual Property Rights subsisting in the content of the Documentation (Customer Intellectual Property) belong exclusively to you, your suppliers or licensors (as applicable); and
(b) nothing in this Agreement transfers or assigns, or purports to transfer or assign, any ownership of the Customer Intellectual Property, to us, or any person, whatsoever.
9. EVENTS OF DEFAULT
9.1 What constitutes an Event of Default
Each of the following constitutes an ‘Event of Default’:
(a) an Insolvency Event occurs in relation to you;
(b) you are an individual and you die or become of unsound mind;
(c) you are in breach of any obligation, warranty or representation made under thisAgreement;
(d) any information provided to us by you in connection with this Agreement is or has become untrue, fraudulent or misleading;
(e) any fees or other payments due to us, including any Subscription Fees, are not paid in accordance with this Agreement;
(f) at anytime or for any period deemed unreasonable by us, you are not contactable or you do not respond to any notice or correspondence from us;
(g) we have determined, in our discretion, that it is prudent for us to take any or all of the actions described in clause 9.2 in light of any Applicable Law, or any requirement of a Governmental Agency, that is applicable either to you or to us; or
(h) we consider that you may be in breach of, or have failed to comply with, any ApplicableLaw or any requirement of a Governmental Agency.
9.2 Actions that may be taken upon an Event of Default
Without limiting any other rights or actions that are available to us at law, if an Event of Default occurs, we may take all or any of the following actions:
(a) revoke the Deferred Payment Right by providing notice to you, requiring full payment of the Subscription Fees, less the amount of any Instalments already paid by you, to be made within 3 Business Days of receiving that notice;
(b) immediately terminate this Agreement by providing you with a written notice of termination;(c) immediately suspend your Licence for a period of time determined reasonable by us, by providing you with written notice.
10.1 Circumstances under which we can suspend yourLicenceWe may suspend your Licence for any reason and for any period of time that we consider necessary, in our absolute discretion. The circumstances in which we may suspend your Licence include, but are not limited to, the following:
(a) when we suspect that an Event of Default has occurred, or might occur, in relation to you and we intend to carry out an investigation to confirm this;
(b) when we issue you with a written request for information required in order for us to provide the Services, but you have not provided us with the requested information within ten (10) Business Days; or
(c) where we suspect that there has been a third party security threat to your Licence.
10.2 Access to the Services during period of suspension
(a) For the period of time that your Licence is suspended, we may restrict your access to the Services in any way that we consider appropriate. This may include restricting your ability to prepare any new Documentation via the Software.
(b) For the avoidance of doubt, you are still required to comply with your obligations under this Agreement while your Licence is suspended, including but not limited to payment of the Subscription Fees in accordance with clause 6.
10.3 Conclusion of investigations
(a) If we have suspended your Licence pending an investigation as to whether an Event ofDefault has occurred, we will aim to conclude our investigation within fifteen(15) Business Days from the date that the suspension began.
(b) When we conclude our investigation, we will inform you in writing whether your Licence may resume or whether we intend to take further action against you in accordance with the terms of this Agreement.
11.1 Our right to terminate for convenience
(a) In addition to any other right of termination that we may have under thisAgreement, we may terminate this Agreement and revoke your Licence at any time by giving you twenty-one (21) Business Days’ notice in writing.
(b) We will provide you with a refund for any Subscription Fees paid in advance, on a pro-rata basis, taking into account the effective date of termination of the Agreement in accordance with clause 11.1(a).
11.2 Your right to terminate for convenience(
(a) You may terminate this Agreement at any time by giving us twenty-one (21) BusinessDays’ written notice.(b) In the event that you terminate this Agreement pursuant to this clause:(i) the Deferred Payment Right will be automatically revoked by us, without any further notice to you, and all Subscription Fees less any Instalments already paid by you, will become immediately due and payable to us; and(ii) all Subscription Fees, Additional Charges and other fees paid to us by you will remain the property of NodApp and you agree that you will make no claim in respect of the Subscription Fees.
11.3 Obligations upon Termination
Upon termination of this Agreement, you must immediately:
(a) pay all outstanding Subscription Fees that are due and payable under this Agreement;
(b) cease and refrain from using and accessing the Software and the Services;
(c) cease and refrain from using any NodApp Intellectual Property (including extracts, copies or records in whatever form) in your possession, except permitted by clause11.4;
(d) either return or destroy (at our direction) all NodApp Intellectual Property, hardware and Confidential Information that we have provided to you in connection with the Services, except for any such materials to which you may retain access as provided for in clause 11.4; and
(e) do such further things as may be reasonably requested by us to protect our right, title and interest in the NodApp Intellectual Property.
11.4 Access following Termination
Following termination of this Agreement:
(a) you will be granted restricted access to the Software for access to historicalDocumentation created prior to the expiry of the Term (HistoricalDocumentation), for up to seven (7) years from the date the Historical Documentation was created. You will not be able to edit any of the Historical Documentation following termination of this Agreement; and
(b) all Historical Documentation will be stored on the NodApp server. If you would like your HistoricalDocumentation removed from our server, you will need to notify us in writing.Upon receipt of your request, all Historical Documentation will be deleted from our server unless we are required to maintain copies in accordance with our internal document retention policies and our obligations under Applicable Law.
12. WARRANTIES, REPRESENTATIONS AND UNDERTAKINGS
12.1 Your warrantiesFor the duration of the Term, you undertake, warrant and represent that:
(a) legal disability: you and your Users are not under any legal disability and are not subject to any law which prevents you from entering this Agreement;
(b) corporate authorisation: if you are a company, you are empowered by, and have obtained, all necessary corporate or other authorisations under your constitution and at law to enter into this Agreement;
(c) consents: you have obtained all necessary consents and have the authority to enter into this Agreement;(d) Authorisations: you will maintain all licences, authorisations and certifications required by any Applicable Law in order to provide the services that you provide to your Clients (including an Australian Financial Services Licence for providers of financial services or financial product advice) (Authorisations), and you will notify us immediately upon the termination or revocation of any such Authorisations in respect of you or any User;
(e) compliance with Agreement and Applicable Laws: you and your Users will, at all times comply with all Applicable Laws and the terms of this Agreement;
(f) able to pay debts: you are able to pay your debts as and when they fall due and are not otherwise insolvent or presumed to be insolvent under any Applicable Law;
(g) no liquidator etc.: no liquidator, provisional liquidator, receiver, receiver and manager, trustee, controller, official manager, administrator or similar officer has been appointed in relation to your affairs and no application has been made for the appointment of any of these persons;
(h) no reliance: you have made your own enquiries and investigations as to the nature, performance, interoperability and suitability of the Services for your requirements and have not relied on any representation, warranty or statements (other than as contained in this Agreement) in relation to these matters; and(i) information accurate: at all times, the information provided by you or your Users to us will be complete, accurate and not misleading.
12.2 Our warranties
(a) Subject to clause 12.3, all warranties, express and implied, as tothe description, quality, performance or fitness for the purposes for you of the Services or any component of the Software are disclaimed and excluded.
(b) To the fullest extent permitted by law, we do not warrant or represent that the Services or any component of the Software or Services:
(i) will meet or satisfy your requirements;
(ii) that the Software will be compatible with your Devices and systems;
(iii) that the operation of the Software will be uninterrupted or error-free; or
(iv) that any Services in respect of the Software will be uninterrupted or error-free.
12.3 Statutory Warranties
Where any Applicable Law implies in this Agreement any term, condition or warranty, and makes void or prohibits excluding or modifying the application of or exercise of, or liability under such term, condition or warranty, then such term, condition or warranty will be deemed to have been included in thisAgreement. However, our liability for any breach of such term, condition or warranty will be limited, at our option, to any one or more of the following:
(a) the supplying of the Services again; or
(b) the payment of the cost of having the Services supplied again.
13. LIABILITY AND INDEMNITY
13.1 Disclaimer of liability
To the fullest extent permitted by law:
(a) System errors: we have no liability to you for any loss, damage or cost which you may suffer as a result of transmission errors, technical faults, malfunctions, illegal intervention in network equipment, network overloads, malicious blocking of access by third parties, internet malfunctions, interruptions or other deficiencies on the part of internet service providers or other system errors. You acknowledge that access to the Services may be limited or unavailable due to such system errors, and that we reserve the right upon notice to suspend your licence for this reason;
(b) Delays: we do not accept any liability for any delays, inaccuracies, errors or omissions in any data provided to you in connection with the Services;
(c) Viruses from or associated with the Software: we have no liability to you (whether in contract, tort or otherwise, including negligence) in the event that any Viruses are introduced via the Software, so long as we have taken reasonable steps to prevent any such introduction;
(d) Unauthorised use: we are not liable for any Claims arising from any unauthorised use of the Services.You indemnify us against all Claims resulting from, or arising out of, any actor omission by any unauthorised person accessing the Services by using your designated passwords, whether or not you authorised such use; and(e) Claims from Clients: we are not liable for, and you agree to indemnify us against any Claims arising from any complaint or action brought by a Client. This includes, but is not limited to complaints made to you or to any Governmental Agency.
13.2 IndemnityYou agree to indemnify us from and against all Claims (including all legal costs on a full indemnity basis) directly or indirectly, arising from or in connection with:
(a) any breach by you, any User, employees, agents or contractors of any of your obligations or warranties under this Agreement;
(b) any breach by you, any User, employees, agents or contractors of any Applicable Law;
(c) any Claim by any third party (including but not limited to any Client) arising out of any act or omission by you in connection with this Agreement or your use of the Services (including any Claim made by that third party pursuant to any duty of care, tort, contract, negligence, any obligation existing any under ApplicableLaw, or otherwise).
13.3 Consequential LossTo the maximum extent permitted by law, we will not in any way be liable to you for any Consequential Loss, however arising, in connection with this Agreement.
14. FORCE MAJEURE
14.1 Force Majeure EventFor the purpose of this Agreement, a ‘Force Majeure Event’ means any occurrence or non-occurrence as a direct or indirect result of which a party is prevented from or delayed in performing any of its obligations (other than a payment obligation) under this Agreement and that is beyond the reasonable control of that party, including but not limited to forces of nature, pandemic, industrial action and action or inaction by a Governmental Agency.
14.2 Notice and Suspension of ObligationsIf a party to this Agreement is affected, or likely to be affected, by a Force Majeure Event:
(a) that party must immediately give the other party prompt notice of that fact including:
(i) full particulars of the Force Majeure Event;
(ii) an estimate of its likely duration;
(iii) the obligations affected by it and the extent of its effect on those obligations; and
(iv) the steps taken to rectify it;(b) the obligations under this Agreement of the party giving the notice are suspended to the extent to which they are affected by the relevant Force Majeure Event as long as the Force Majeure Event continues.
14.3 Actions we may takeIf we determine that we have been affected by a Force Majeure Event, then we may(without prejudice to any other rights under this Agreement and at our sole discretion)take any one or more of the following steps:(
a) amend or vary this Agreement, insofar as it is impractical or impossible for us to comply with our obligations to you; or
(b) take or omit to take all such other actions as we deem to be appropriate in the circumstances.
14.4 Notification of Force Majeure EventTo the extent practicable, we will take reasonable steps to notify you of any action that we propose to take under clause 14.3 before we take such action. If it is not practicable to give you prior notice, we will notify you promptly after taking any such action.
14.5 Liability for a Force Majeure EventIf we determine that we have been affected by a Force Majeure Event, we will not be liable to you for any failure, hindrance or delay in performing our obligations under this Agreement or for taking or omitting to take any action in accordance with clauses 14.3 or 14.4 of this Agreement.
15. DISPUTE RESOLUTION
15.1 Informing us about disputes
You should inform us immediately in writing of any dispute or complaint whatsoever in connection with this Agreement (Dispute). Upon being informed of theDispute, we will investigate and endeavour to resolve the Dispute in accordance with our internal complaints handling systems.
15.2 How disputes are dealt with
(a) Where the Dispute is unable to be resolved by us to your satisfaction the Dispute maybe referred to mediation by either party by providing the other party with notice.(b) Such mediation is to be conducted by a mediator whois independent of the parties and appointed by agreement of the parties or, failing agreement within five (5) Business Days of receiving any party’s notice under clause
(a), by a person appointed by the Chair of Resolution Institute, or the Chair’s designated representative.
(c) The Resolution Institute Mediation Rules shall apply to the mediation.
(d) It is a condition precedent to the right of either party to commence arbitration or litigation other than for interlocutory relief that it has first offered to submit the Dispute to mediation.
16.1 Personal information
(a) In the course of providing Services to you under this Agreement, it will be necessary for us to obtain and hold Personal Information about you, your Users andClients.
(b) Failing to provide the Personal Information to us may mean that we are unable to provide the Services to you.
16.3 Retention of Personal InformationWe will retain all Personal Information belonging to you, your Users and your Clients for the duration of the Term and for a period of seven (7) years from the date that we cease to have a relationship with you.
17.1 Disclosure of Confidential InformationThe parties agree to undertake not to use or disclosure the ConfidentialInformation except as permitted by clauses 16,17.2or 17.3
.17.2 Permitted disclosureA party may disclosure the Confidential Information of another party:(a) as contemplated by this Agreement or as otherwise necessary in order for a party to carry out their obligations under this Agreement;(b) with the consent of the other party; or(c) if it is required to do so by law or by direction of a Governmental Agency,and in each case only to the extent required by the circumstances set out above.
17.3 Disclosure to third party service providersFrom time to time, we may deliver the Services to you with the assistance of third party service providers. As such, you agree and acknowledge that we are permitted to disclose your Confidential Information to these third parties to the extent that it is reasonably required in order for them to provide us with the relevant services.
The provisions of this Agreement are severable. If any provision in this Agreement is found to be invalid or unenforceable then the provision is to be severed from the remainder of this Agreement which is to remain in full force and effect.
(a) We may assign or deal with our rights or delegate any of our obligations under this Agreement to any person by giving at least five (5) Business Days’ notice to you.
(b) You may not assign or deal with any of your rights or delegate any of your obligations under this Agreement to any person without our prior written consent.
18.3 Rights and remedies
The rights and remedies contained in this Agreement are cumulative and not exclusive of any rights or remedies provided by law.
(a) No delay or omission on our part in exercising any right, power or remedy provided by law or under this Agreement, or partial or defective exercise thereof, will: (i) impair or prevent further or other exercise of such right, power or remedy; or (ii) operate as a waiver of such right, power or remedy.
(b) No waiver of any breach of any term of this Agreement will (unless expressly agreed in writing by the waiving party) be construed as a waiver of a future breach of the same term or as authorising a continuation of the particular breach.
18.5 Governing Law
(a) This Agreement is governed by the law in force in New South Wales, Australia
(b) The parties submit to the non-exclusive jurisdiction of the courts of New SouthWales and any courts, which may hear appeals from those courts in respect of any proceedings in connection with this Agreement.
(a) Any notice or other communication given or made under or in connection with the matters contemplated by this Agreement will be in writing and can be provided by hand, post or email to the parties at the below addresses, or to such addresses as otherwise notified by either party in writing from time to time:
(i) Us: NodAppPty Ltd Level 8, 11 York Street, Sydney NSW 2000 firstname.lastname@example.org
(ii) You:The address and email address provided by you in the Subscription Form.
18.7 When notices are received
Any such notice will be deemed to have been received:
(a) if delivered by hand, at the time of delivery;
(b) if posted, within five (5) Business Days of posting;
(c) if by email, on successful completion of its transmission.
(a) We may amend, change, revise, add or modify the Agreements at any time by providing ten (10) Business Days’ notice to you in writing of the proposed change, after which time the proposed change will become effective.
(b) You may object to the proposed change during the timeframe specified above in clause 18.8(a) by providing us notice in writing of your objection, together with reasons as to why you are objecting to the change. If you do not provide notice of any objection within this timeframe, you will be deemed to have accepted the proposed change.
(c) If you object to a proposed change, you will not be bound by the changes, however, this may affect our ability to provide you with the Services and we may consider it necessary to suspend your Licence in accordance with clause 10.
(a) Nothing in the Agreement will create a relationship of agency, partnership, joint venture or employment between the parties.
(b) Neither party has any authority to act for, or incur any liability, or obligation, on behalf of the other party in any manner except with the prior written consent of the other party.
18.10 Entire Agreement
(a) This Agreement embodies the entire agreement and understanding between the parties concerning its subject matter and succeeds and cancels all other agreements and understandings concerning the subject matter of this Agreement.
(b) Any warranty, representation, guarantee or other term and condition of any nature not contained in this Agreement is of no force or effect.
The following clauses survive the expiry or termination of this Agreement: 1,2,6.1(e), 6.2, 6.5, 7, 8, 11.3, 11.4, 12.2, 12.3, 13.1, 13.2, 13.3, 15, 16, 17 and 18.