Terms and Conditions
In this agreement, capitalised terms have the meaning given to them in the Key Details, and the following phrases have the meaning set out below.
||means information of or provided by a party that is by its nature is confidential information, is designated by that party as confidential, or that the other party knows or ought to know is confidential, but does not include information which is or becomes, without a breach of confidentiality, public knowledge.
||means files, data or any other information, which is uploaded or inserted to the Subscription by the Client or its Licensed Users.
||means all manuals, help files and other documents supplied by the Service Provider to the Client relating to the Subscription, whether in electronic or hardcopy form.
||has the meaning given in clause 3.3.
||has the meaning given in clause 7.1(a) and includes the Setup Fee and Annual Fee set out in the Key Details.
||means a user of the Subscription and Documentation who has been validly granted access to the Software and Documentation by the Client in accordance with clause 3.2.
||means, in respect of a party, its officers, employees, contractors (including subcontractors) and agents.
||means the Service Provider’s provision of the Subscription and any other services the Service Provider will provide to the Client under this agreement.
||means the software program described in the Key Details owned and developed by Zigtal and licensed to the Client under this agreement.
||means the Software, Hosted Services and Support Services set out in the Key Details that the Service Provider will provide to the Client under this agreement.
||Has the meaning given in clause 3.4.
||means the Client’s Licensed Users, its Personnel, and any other third party who are granted access to the Software or Documentation by the Client, its Licensed Users or its Personnel.
- THIS AGREEMENT
- DURATION AND RENEWAL
- This agreement commences on the Commencement Date and continues in effect for the Term, unless earlier terminated in accordance with clause 13or extended in accordance with clause 1(b).
- The parties may agree to extend this agreement by mutual agreement, including by conduct that indicates an intention to extend the Term.
- If any Services are supplied after the expiry of the Term without the parties having entered into a replacement agreement or otherwise having expressly agreed in writing that these terms will not apply, the terms of this agreement will continue to apply for that provide.
- ORDER OF PRECEDENCE
In the event of any inconsistency between these terms and conditions and the Key Details, these terms and conditions will prevail to the extent of such inconsistency.
- THE SUBSCRIPTION
- SCOPE OF SUBSCRIPTION
- The Service Provider will provide the Subscription in accordance with:
- the scope set out in the Key Details; and
- all applicable laws and industry standards.
- Unless otherwise agreed in the Key Details, the Service Provider may, in its absolute discretion:
- not provide any part of the Subscription until the Client has paid any fees or deposit payable in respect of such Services; and
- withhold delivery of any part of or all of the Subscription until the Client has paid the invoice in respect of the Subscription.
- (Licence) During the Term, the Service Provider grants to the Client a non-exclusive, non-transferable licence to use the Subscription and Documentation to provide access to the Subscription for the Number of Licensed Users set out in the Key Details.
- (Installation) The Service Provider will install the Software on the Client’s IT system in order for the Client to enjoy the full benefit of the Software. The Services are dependent on the Client maintaining accounts, programs or systems that are required to operate the Software. Failure on behalf of the Client to maintain these accounts may delay performance of the Software and the Service Provider accepts no responsibility for any losses or notification in this regard.
- (Additional users) If additional users are requiredin addition to the Number of Licenced Users set out in the Key Details, the following process will apply:
- the Client must notify the Service Provider of the number of additional users required; and
- the Service Provider will invoice the Client the Additional Licensed Users Fee for each additional user for the then current month and the remaining months of that year.
- (Enhancements) the Service Provider may from time to time in its absolute discretion install enhancements to the Software or issue updates to the Documentation, including any upgraded, improved, modified or new versions or processes of any part of or all of the Software or Documentation (including any customisations made at the Client’s request). The Client must not refuse the installation or delivery of an enhancement.
- (Integrations) If the Key Details state that Integration Services will be provided, the Service Provider will perform all reasonable activities necessary to integrate the Software with other software as required by the Client. Any failure of an integration, whether caused by the Service Provider or the third party, will not be the responsibility of the Service Provider or a breach of this agreement. The Client releases the Service Provider from any claims for losses arising in connection with the failure of any third party integration.
- HOSTED SERVICES
Unless otherwise stated in the Key Details:
- (hosting location) The Client acknowledges and agrees that the Service Provider uses storage servers to host the Subscription that are located outside of Australia.
- (hosting provider) The Service Provider may, at any time in its absolute discretion and without further notice to the Client, change the hosting provider and transition all related activities and data to a new hosting provider.
- (service quality) While the Service Provider will use its best efforts to select an appropriate hosting provider, it does not guarantee that the hosting of the Subscription will be free from errors or defects or that the Subscription will be accessible or available at all times.
- (security) the Service Provider will use its best efforts to ensure that Client Data is stored securely, however the Service Provider does not accept responsibility or liability for any unauthorised use, destruction, loss, damage or alteration to the Client Data, including due to hacking, malware, ransomware, viruses, malicious computer code or other forms of interference.
- (backups & disaster recovery) the Service Provider will use its best efforts to create scheduled daily backups of Client Data stored by the Service Provider. In the event that Client Data is lost due to a system failure (e.g. a database or webserver crash), the Service Provider will attempt to restore the Client Data from the latest available backup, but cannot guarantee that this backup will be free from errors or defects.
- (troubleshooting) the Service Provider’s Services do not include troubleshooting or fixing application or data-based failures and additional fees may apply for these sorts of services.
- SUPPORT SERVICES
- Unless otherwise stated in the Key Details, the Service Providerwill provide the Support Services to the Client during the Term, including the Help Desk support during the hours stated in the Key Details.
- The Fees are based on the Software being available and operational for the Client 92% of the time in each year of the Term on a 365 day, 24 hour basis. The remaining 8% of time will be considered scheduled downtime for the purpose of the Service Provider performing maintenance activities.
- The Service Provider will use its best endeavours to provide the Support Services in accordance with the Service Levels in Table 1 (Service Levels).
Table 1: Service Levels
||4 business hours
||8 business hours
||24 business hours
||72 business hours
- The severity and priority of calls are classified as follows:
- Critical – business critical issues only, which prevent the majority of users from accessing the Services or where the module functionality is materially restricted with no feasible workaround
- High –Software or Hosting issues affecting multiple users and issues affecting business operation, which prevents a small group of users from accessing the Services or where the module functionality is restricted but a feasible workaround exists
- Medium – notification of image/data capture issues/trends; non-critical general, operation and technical enquiries
- Low – feedback; non-essential system set-up changes, no compliance or cash flow impact.
- Ifthe Service Provider is not able to meet a Service Level, for any reason, the Client will not have any claim for delay and the Service Provider will use its best endeavours to respond to or resolve the relevant issue as soon as possible.
- CLIENT’S OBLIGATIONS
- USERS AND EULA
- The Client must ensure that all Users are made aware of, agree to and comply with the End User Licence Agreement in Schedule 1 and available at Zigtal.com/legal prior to accessing the Software.
- The Client acknowledges and agrees that the Service Provider will have no liability for any act of a User for damage, loss or expense suffered by a User in connection with the use of the Subscription and will indemnifythe Service Provider for any such damage, loss or expense.
- INTERACTION WITH SOFTWARE
The Client must not, and must not encourage or permit any User or any third party to, without the Service Provider’s prior written approval:
- make copies of the Documentation or the Software;
- adapt, modify or tamper in any way with the Software;
- remove or alter any copyright, trade mark or other notice on or forming part of the Software or Documentation;
- create derivative works from or translate the Software or Documentation;
- publish or otherwise communicate the Software or Documentation to the public, including by making it available online or sharing it with third parties;
- sell, loan, transfer, sub-licence, hire or otherwise dispose of the Software or Documentation to any third party;
- decompile or reverse engineer the Subscription or any part of it, or otherwise attempt to derive its source code;
- attempt to circumvent any technological protection mechanism or other security feature of the Subscription; or
- permit any person other than Users to use or access the Software or Documentation.
- UNDERTAKINGS TO OTHER USERS
- The Client is fully responsible for all communications, offers, financial deals made through or in connection with
- The Service Provider will not be held responsible for, and the Client indemnifies the Service Provider against, any claim, demand or proceeding for loss, damage, costs or expenses suffered by the Client as a result of or in connection with any such communications, offers or financial deals.
- The Service Provider may look for beta testers to help test new features for the Software. These features will be described as “alpha”, “beta” or “pre-release” features (or similar) (Beta Services). Beta Services may contain bugs, security flaws or other issues and they are made available on an ‘as is’ basis.
- If you choose to use Beta Services, you agree that we won’t be responsible to you for, and we expressly disclaim any liability for, any cost, loss, damages or expenses arising out you using Beta Services. You also agree that any contractual commitments we make for our other Services will not apply to our Beta Services.
- THIRD PARTY TERMS & CONDITIONS
- The Client acknowledges and agrees that the Services are:
- reliant on third party providers and platforms (Third Party Services); and
- subject to third party terms & conditions apply to the Services, including of the hosting provider (Third Party Terms).
- The Client mustcomply with, and must keep the Service Provider informed of, any Third Party Terms, including any amendments to Third Party Terms during the Term, that are applicable to the Services.
- the Service Provider will not be liable for any delay, loss or damage suffered by the Client in connection with any Third Party Services or Third Party Terms.
- The Client must pay to the Service Provider fees in the amounts and at the times set out in the Key Details, or as otherwise agreed in writing (Fees).
- All Fees must be paid in advance and are non-refundable for change of mind.
- If the Key Details state that the 2020 free trial applies, then no Fees are payable until the Automatic Renewal Date set out in the Key Details.
- However, unless the Client provides written notice to the Service Provider that the Client does not want to continue with the Subscription more than 30 days’ prior to the Automatic Renewal Date, the Client will be required to pay the Fees set out in the Key Details on and from the Automatic Renewal Date.
- TIME FOR PAYMENT
Unless otherwise agreed in the Key Details:
- the Annual Fee is payable in advance of each Renewal Date;
- if the Service Provider issues an invoice to the Client, payment must be made by the time(s) specified on such invoice; and
- if no timeframe is specified, the Client must pay for all invoices within 2 weeks of receiving an invoice.
Unless otherwise indicated, the Fees do not include GST. In relation to any GST payable for a taxable supply by the Service Provider, the Client must pay the GST subject to the Service Provider providing a tax invoice.
The Service Provider reserves the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard, American Express or Diners Club).
- INCREASE IN FEES
- The Service Provider reserves the right to increase the Fees on each anniversary of the Commencement Date during the Term upon giving at least 30 days written notice to the Client prior to the date the increase is to take effect.
- In the event that the Client does not agree to the increased Fees, it must give the Service Provider written notice within 14 days of the date the Client receives notice of the increase rejecting the increase. If the parties cannot agree on the increase to the Fees, the parties maymutually agree to terminate this agreement for convenience.
- In the event that the Client accepts the increase or does not respond within the 14 day notice period, the Client will be deemed to have accepted the increase to the Fees.
- TRAINING FEES
- From time to time the Client may request with no less than two weeks’ written notice that the Service Provider provide training for its personnel in relation to the Software, or other matters, in exchange for additional training fees as quoted by the Service Provider at the time.
- Each request will be considered separately and may be accepted or denied at the sole discretion of the Service Provider. The Service Provider is under no obligation to agree to provide any training.
- INTELLECTUAL PROPERTY
- The Client grants to the Service Provider (and its Personnel) a non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use the Client Data to the extent reasonably required to provide the Subscription.
- The Client:
- warrants that the Service Provider’s use of Client Data as contemplated by the Key Details will not infringe any third-party Intellectual Property Rights; and
- indemnifies the Service Provider from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of such infringement.
- SERVICE PROVIDER IP
- Nothing in this agreement transfers any Intellectual Property Rights in any the Service Provider IP to the Client, including the Software. Any Developed IP will be solely and exclusively owned by the Service Provider.
- The Service Provider grants to the Client a non-exclusive, royalty free, non-transferable, worldwide and revocable licence to use the Service Provider IP and any Developed IP to the extent required for the Client to use, enjoy the benefit of or exploit the Subscription.
For the purposes of this clause8:
- “Client Data” means any documents or materials supplied by the Client to the Service Provider under or in connection with this agreement or the Key Details, or uploaded by the Client to the Software, including any Intellectual Property Rights attaching to those materials.
- “Developed IP” means any materials produced by the Service Provider in the course of providing the Subscription including documentation, reports, data, designs, concepts, know-how, information, advice, opinions, emails, notes whether in draft or final form, in writing, provided orally, either alone or in conjunction with the Client or others, and any Intellectual Property Rights attaching to those materials.
- “Service Provider IP” means all materials owned or licensed by the Service Provider that is not Developed IP and any Intellectual Property Rights attaching to those materials.
- “Intellectual Property Rights” means any and all present and future intellectual and industrial property rights throughout the world, including copyright, trade marks, designs, patents or other proprietary rights, Confidential Information and the right to have information kept confidential, or any rights to registration of such rights whether created before or after the date of this agreement, whether registered or unregistered.
- MANAGEMENT OF INFORMATION AND DATA
- Except as contemplated by this agreement, a party must not and must not permit any of its officers, employees, agents, contractors or related companies to use or to disclose to any person any Confidential Information disclosed to it by the other party without its prior written consent.
- This clause does not apply to:
- information which is generally available to the public (other than as a result of a breach of these terms or another obligation of confidence);
- information required to be disclosed by any law; or
- information disclosed by the Service Provider to its subcontractors, employees or agents for the purposes of providing the Subscription or its obligations under this agreement.
The Client retains ownership of all Client Data. The Service Provider will:
- establish, maintain, enforce and continuously improve safety and security procedures and safeguards against the unauthorised use, destruction, loss or alteration of Client Data;
- not make any undocumented, unreported or authorised configuration changes to the Service Provider’s systems or to the information security controls that secure Client Data, if those changes would materially decrease the protections afforded to Client Data; and
- notify and keep the Client notified at all times of the Service Provider’s current safety and security procedures and safeguards that are made from time to time.
- SECURITY BREACH
- The Service Provider will notify the Client promptly after the Service Provider learns of any potential, actual or suspected loss, misappropriation or unauthorised access to, or disclosure or use of Confidential Information or other compromise of the security, confidentiality, or integrity of Confidential Information (collectively, Security Breaches).
- The Service Provider will promptly investigate each potential, actual or suspected Security Breach and assist the Client and its Personnel in connection with any investigation that the Client may desire to conduct with respect to the Security Breach.
- The Service Provider will take all steps requested by the Client to limit, stop or otherwise remedy any potential, actual or suspected Security Breach.
- ZIGTAL’S WARRANTIES
- The Service Provider warrants that:
- during the Term, the Subscription will perform substantially in accordance with the intended purpose;
- to its knowledge, the use of the Subscription in accordance with this agreement will not infringe the Intellectual Property Rights of any third party; and
- the support services will be fit for purpose and provided by Personnel who have expertise in the provision of those support services.
- CORRECTION OF DEFECTS
- The Service Provider will correct any errors, bugs or defects in the Subscription which arise during the Term and which are notified to the Service Provider by the Client unless the errors, bugs or defects:
- result from the interaction of the Subscription with any other solution or any computer hardware or services not approved in writing by the Service Provider;
- result from any misuse of the Subscription; or
- result from the use of the Subscription by the Client other than in accordance with this agreement or the Documentation.
- The Client agrees to provide the Service Provider and its Personnel reasonable access to the Subscription to assist the Service Provider in correcting any defects in the Subscription.
- EXCLUSION OF OTHER WARRANTIES
- To the maximum extent permitted by applicable law, all express or implied representations and warranties (whether relating to fitness for purpose or performance, or otherwise) not expressly stated in this agreement are excluded.
- Nothing in this agreement is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, the Client may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services provided.
- (Limitation of liability) To the maximum extent permitted by applicable law,the maximum aggregate liability of the Service Provider to the Clientin respect of loss or damage sustained by the Client under or in connection with this agreement is limited to:
- in respect of loss or damage arising under or in connection with a Statement of Work, an amount equal to the total Fees paid and payable to the Service Providerunder that Statement of Work; and
- in respect of loss or damage sustained by the Clientarising not under or in connection with a Statement of Work, is limited to the total fees paid to the Service Provider by the Client in the 3 months precedingthe date of the first event giving rise to the relevant loss or damage.
- (Indemnity) The Client agrees at all times to indemnify and hold harmless the Service Provider and its officers, employees and agents (“those indemnified“) from and against any loss (including reasonable legal costs) or liability incurred or suffered by any of those indemnified where such loss orliability was caused or contributed to bythe Client or the Client’s officers’, employees’or agents’:
- breach of any term of this agreement; or
- negligent, fraudulent or criminal act or omission.
- (Consequential loss) The Service Provider will not be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with this agreement or any goods or services provided by the Service Provider, except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth) or any other applicable law.
- TERMINATION FOR CONVENIENCE BY THE SERVICE PROVIDER
The Service Providermay terminate this agreement at any time by providing 1 month’s written notice to the Client. Ifthe Service Provider terminates this agreement in accordance with this clause, the Service Provider will provide the Client with a refund equal to the pro rata portion of the Fees for the calendar months remaining in the then current year of the Term.
- TERMINATION FOR CONVENIENCE BY THE CLIENT
The Client may terminate this agreement at any time by providing 1 month’s written notice to the Service Provider. If the Client terminates this agreement in accordance with this clause, the Client acknowledges and agrees that no Fees will be refunded.
Either party (Non-Defaulting Party
) may terminate this agreement immediately by written notice to the other party (Defaulting Party
) if the Defaulting Partyis in breach of this agreement and either:
- fails to remedy such breach within 14 days of receiving notice from the Non-Defaulting Party requiring it to remedy such breach; or
- that breach is not capable of remedy.
Upon termination of this agreement:
- the Client must pay to the Service Provider any third party vendor amounts that the Service Provider has already incurred on the Client’s behalf;
- the Client must ensure that it removes all Client Data from the Software that the Client requires. The Service Provider may, in its absolute discretion, agree to provide a short period of extended access to the Software for the purpose of this clause;
- each party must return all property of other parties to those respective parties;
- each party must immediately return to each other party, or (if requested by that party) destroy, any documents in its possessionor control containing Confidential Information of the other party; and
- no rights, liabilities or remedies of any party will be invalidated by the termination.
Any clause that by its nature would reasonably be expected to be performed after the termination or expiry of this agreement will survive and be enforceable after such termination or expiry.
- DISPUTE RESOLUTION
- A party claiming that a dispute has arisen under or in connection with this agreement must not commence court proceedings arising from or relating to the dispute, other than a claim for urgent interlocutory relief, unless that party has complied with the requirements of this clause.
- A party that requires resolution of a dispute which arises under or in connection with this agreement must give the other party or parties to the dispute written notice containing reasonable details of the dispute and requiring its resolution under this clause.
- Once the dispute notice has been given, each party to the dispute must then use its best efforts to resolve the dispute in good faith.
- If the dispute is not resolved within a period of 14 days after the date of the notice, a party may by notice to the other party or parties to the dispute refer the dispute for mediation by the Australian Disputes Centre (the ADC) in accordance with the ADC Guidelines for Commercial Mediation operating at the time the matter is referred to the ADC (Guidelines). The terms of the Guidelines are hereby deemed incorporated into this agreement.
- If the dispute is not resolved within 28 days after the appointment of the mediator any party may take legal proceedings to resolve the dispute.
- A notice or other communication to a party under this agreement must be:
- in writing and in English; and
- delivered via email to the other party, to the email address specified in this agreement, or if no email address is specified in this agreement, then the email address most regularly used by the parties to correspond regarding the subject matter of this agreement as at the date of this agreement (Email Address). The parties may update their Email Address by notice to the other party.
- Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party’s Email Address, notice will be taken to be given:
- 24 hours after the email was sent; or
- when replied to by the other party,
whichever is earlier.
- FORCE MAJEURE
- If a party (Affected Party) becomes unable, wholly or in part, to carry out an obligation under this agreement (other than an obligation to pay money) due to a Force Majeure Event, the Affected Party must give to the other party prompt written notice of:
- reasonable details of the Force Majeure Event; and
- so far as is known, the probable extent to which the Affected Party will be unable to perform or be delayed in performing its obligation.
- Subject to compliance with clause16(a) the relevant obligation will be suspended during the Force Majeure Event to the extent that it is affected by the Force Majeure Event.
- The Affected Party must use its best endeavours to overcome or remove the Force Majeure Event as quickly as possible.
- For the purposes of this agreement, a ‘Force Majeure Event’ means any:
- act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;
- strikes or other industrial action outside of the control of the Affected Party;
- war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic; or
- any decision of a government authority in relation to COVID-19, or any threat of COVID-19 beyond the reasonable control of the Affected Party, to the extent it affects the Affected Party’s ability to perform its obligations.
- GOVERNING LAW AND JURISDICTION
This agreement is governed by the law applying in New South Wales, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
This agreement may only be amended in accordance with a written agreement between the parties.
No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.
- JOINT AND SEVERAL LIABILITY
An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.
A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.
This agreement may be executed in any number of counterparts. Each counterpart constitutes an original of this agreement and all together constitute one agreement.
Except as otherwise provided in this agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this agreement.
This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.
- (singular and plural) words in the singular includes the plural (and vice versa);
- (gender) words indicating a gender includes the corresponding words of any other gender;
- (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
- (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
- (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
- (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;
- (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;
- (headings) headings and words in bold type are for convenience only and do not affect interpretation;
- (includes) the word “includes” and similar words in any form is not a word of limitation; and
- (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision.