1. DEFINITIONS AND INTERPRETATION
In this Terms of Service, unless a contrary intention appears:
“Applicable Law” means any statute, regulation, by-law, ordinance or other determination of any governmental agency with the force of law in any jurisdiction in which a party carries on business or which it is incorporated applicable to the parties for the purposes of this Terms of Service.
“Business” means the business conducted by the Licensee or any of the Assignee’s Related Body Corporate as at the date of this Terms of Service.
“Commencement Date” means the date in which the Licensee agrees to these Terms of Service.
“Confidential Information” means information that is by its nature confidential, including but not limited to the following:
all trade secrets, ideas, know-how, concepts and information whether in writing or otherwise;
any kind of technical, financial or business information, including marketing strategy in advance of implementation;
details of employees, suppliers or customers;
unregistered Intellectual Property, concepts, know-how and trade secrets; and
Material developed by the Licensee or its authorised agent under this Terms of Service; but excludes information that:
is, or becomes part of, the public domain otherwise than by breach of this Terms of Service by either party;
is lawfully obtained by a party from another person without any restriction as to use and disclosure;
was in a party’s possession prior to disclosure to it by the other party without any restriction as to use and disclosure.
“Copyright” means those rights of copyright under the Copyright Act 1968 (Cth) in respect of the Material and other rights of copyright throughout the world.
“CPU” means the central processing unit of a computer.
“Dispute” means any dispute, controversy, difference or claim arising out of or about this Terms of Service, including any question concerning its formation, validity, interpretation, performance, breach and termination.
“Disk IO” means the input/output operations on a disk drive.
“Improvement” means any additional features and enhancements which can be adapted to the Platform which could make its production less expensive, more effective, marketable, accessible or in any way easier to use or more preferable as a commercial enterprise.
“License” means the licence granted in accordance with this Terms of Service.
“Licenseee’s Director” means the party/ies holding directorship as recorded with the Australian Securities and Investment Commission.
“License Fee Review Date” means each Year.
“Material” means code, instructions, graphs, models, photographs, letters, client lists, formulae, notes, correspondence, drawings, data and other written material whether in electronic or “hard copy” or software relating to or included in the Intellectual Property.
“New IP” means:
any modification or improvement to the existing Intellectual Property; and
all Intellectual Property Rights created, developed or generated by the Licensee or its contractors, employees, agents or other authorised persons or on behalf of them;
intellectual Property Rights created, developed or generated by or on behalf of the Licensor.
“Permitted” means permission to use the Intellectual Property for the purpose set out in clause 3.4
“Platform” means the computer software Platform, more specifically, the proprietary tool comprised of Software operated by the Licensor or its authorised agent that provide users with a customized cloud-based practice management software which provides the following services (non-exhaustive):
an automated workflow system;
integrated billing and accounting system;
“Project” means any activity that utilises the Licensor’s services to create a product, service or result.
“Related Body Corporate” has the meaning given to that term in section 9 of the Corporations Act 2001 (Cth). or result.
“Source Code” means any computer program, computer applications or software, being all statements of instructions that constitute that program, software or application to be used directly or indirectly in a computer in order to bring about a certain result, which result may include (without limitation) the software or application for the Platform.
“Technical Information” means all information relating to the Intellectual Property which is confidential to the Licensor prior to or during the Term.
“Term” means the period of time from the Commencement Date until the termination of the Terms of Service in accordance with clause 13.
“Terms of Service” means the agreement contained in this document between the Licensor and the Licensee.
“Territory” means jointly and severally all regions of Australia.
“Trademark” has the meaning given to that term in section 9 of the Trade Marks Act 1995 (Cth).
“Year” means the twelve month period that commences on the same day as the Commencement Date.
The parties acknowledge that the terms and obligations contained in this Terms of Service is binding and effective from the Commencement Date.
In consideration for the Licensee paying the Licence Fee to the Licensor, the Licensor grants to the Licensee, subject to the terms of this Terms of Service, permission to use the Intellectual Property within the Territory for the Term in connection with the Licensee’s Business.
3.2 Non-Exclusive Licence
The Licensor grants to the Licensee a non-exclusive Licence to use the Intellectual Property throughout the Territory for the Term.
The Licensee must only use the Intellectual Property in the Territory as provided for in this Terms of Service.
The Licensee will not use the Intellectual Property for any purpose other than that permitted by the Licensor under clause 3.1 of this Terms of Service.
3.5 Use of Services
The Licensee is permitted to use the Licensor’s services provided that they are:
capable of forming a legally binding contract; and
not otherwise barred from receiving such services under the laws of Australia or other jurisdictions.
3.6 Provision of Services
To access the Licensor’s services, the Licensee must provide:
current and factual identification;
contact information; and
any other information reasonably requested by the Licensor as part of the registration process.
The Licensee is wholly responsible for the confidentiality of their account information and for all of the activities that occur under their account.
The Licensee is wholly responsible for all content within the Licensee’s account.
The Licensee agrees to immediately notify the Licensor of any unauthorised use of their account or any other breach of security.
The Licensor will not be liable for any loss or damage as a result of the Licensee’s failure to provide the Licensor with accurate information or to keep their account secure.
3.7 Trial Period
Upon signing up to the Licensor’s services, the Licensee is permitted to trial the services with no obligation to continue to use the services.
The Licensee is permitted to use the Licensor’s services for ten (10) trial Projects after which the Licensee will be billed.
For the avoidance of confusion, the Licensee will be billed when they commence their eleventh Project.
The Licensee may opt out of the trial period at any time.
3.8 Acceptable Conduct
The Licensee is responsible for the actions of all users of their account and any data that is created, stored, displayed by, or transmitted to or from their account while using the Licensor’s services.
The Licensee agrees not to engage in any activity that interferes with or disrupts the Licensor’s services or networks connected to the Licensor.
3.9 Prohibited Usage
Prohibited usage of the Licensor’s services will result in immediate account suspension or cancellation.
Where a Licensee’s account is suspended or cancelled due to prohibited usage, the Licensor may, in their absolute discretion:
Withhold any refund of fees to the Licensee;
impose fees as necessary to rectify the prohibited use; and
pursue civil remedies without providing advance notice to the Licensee.
The Licensee agrees that any of the below activities are prohibited usage:
Misuse of System Resources: Intentional misuse or exploitation of system resources, including but not limited to employing programs that consume excessive network capacity, CPU cycles, or disk IO;
Access to Other Computers or Networks without Authorisation: Attempting unauthorised and/or illegal access or exploitation of computers, networks and/or accounts not belonging to the party seeking access. Any act which interferes with the services of another user or network. Any act relating to the circumvention of security measures;
Other Activities viewed as Illegal or Harmful: Engaging in illegal activities or engaging in activities harmful to the operations of the Licensor or its customers; and
Providing False Data on any Contract or Application: including fraudulent use of credit card numbers.
The Licensor and its services may only be used for lawful purposes. Transmission, distribution, or storage of any information, data or material in violation of Australian federal or state regulation or law, or by the common law, is prohibited. This includes but is not limited to:
material protected by copyright;
trade secret; or
other intellectual property rights.
The Licensor’s services may not be used to facilitate infringement of these laws in any way.
3.10 Account Cancellation or Suspension
The Licensor reserves the right to suspend services to any Licensee if, at the Licensor’s absolute discretion, the Licensee’s server is the source or target of a violation of any of the other terms of service or for any other reason which the Licensor chooses.
The Licensor will use reasonable care in notifying the Licensee and in resolving the issues in a method resulting in the lease amount of service interference.
The Licensor reserves the right to terminate service without notice for continued and repeated violations of this Terms of Service. If inappropriate activity is detected, all accounts of the Licensee in question will be deactivated until an investigation is complete.
Prior notification to the Licensee is not assured. In extreme cases, law enforcement will be contacted regarding the activity.
The Licensee will not be credited for the time their services were suspended.
If at any time it becomes necessary for the Licensor to cancel and Licensee’s service without cause, the Licensor will provide ten (10) days’ notice of the cancellation.
The Licensee may cancel the service at any time. Cancellation of services does not relieve the Licensee of responsibility for the payment of all accrued charges.
4. LICENSE FEE
During the Term the Licensee must pay to the Licensor a Licence Fee per annum for the first year of the Term and adjusted accordingly for each subsequent year of the Term based on the pricing formula.
4.2 Pricing Formula
For each new Year of the Term, the Licence Fee must be reviewed in accordance to clause 4.3 of this Terms of Service to an amount represented by A where:
A = 1 + B% x C
B = The percentage notified by the Licensor to the Licensee pursuant to clause 4.3.
C = The Licence Fee payable immediately before the Licence Fee Review Date.
4.3 Manner of Payment
The Licensee must pay the Licence Fee to the Licensor:
by equal monthly instalments in advance on the first day of each month;
the first payment must be made on the Commencement Date;
if necessary the first and last instalments must be apportioned on a daily basis;
the Licensor will notify the Licensee of a reasonable method of paying the Licence Fee prior to the Commencement Date and the Licensee must pay the Licence Fee in accordance with this clause 4.2 by this method;
the Licensor may vary the method of payment, or another reasonable method of payment, by giving the Licensee notice of the change and the change takes effect one week after notification or, if the notice specifies some longer time, at the time specified.
The Licensee agrees that the Licensor shall be permitted to charge the Licence Fee to the Licensee’s credit card, if provided.
Services may be terminated on accounts that reach ten (10) days past due.
Accounts that are not collectable by the Licensor may be turned over to an outside collection agency for collection.
The Licensor is not responsible for any additional bank fees, interest charges, finance charges, overdraft charges, or other fees resulting from charges billed by the Licensor. Currency exchange settlements will be based on agreements between the Licensee and their credit provider.
Pro-rated credits will not be issued for unused services when the Licensee retains any active service.
4.4 License Fee Reviews
The Licence Fee will be reviewed for each Year of the Term and the Licensor must at least one (1) month in advance before the commencement of each Year provide to the Licensee:
a calculation at the rate and on terms set out in clause 4.2 of the Licence Fee payable for the next Year; and
such other details as may be required and notified to the Licensee by the Licensor from time to time.
5. PROTECTION OF INTELLECTUAL PROPERTY
The Licensee acknowledges that the Licensor, subject to any sale or transfer of the Intellectual Property, is the legal and beneficial owner of the Intellectual Property and the Licensee undertakes not to:
do, omit to do or cause anything to be done or omitted that may adversely affect the Licensor’s rights in relation to the Intellectual Property;
contest the validity or exclusivity of the Licensor’s right, title to or interest in the Intellectual Property or its right to licence the use of the Intellectual Property;
represent or assert that the Licensee has any right, title or interest in the Intellectual Property (other than under the Licence);
either by itself or through or in conjunction with any other person, directly or indirectly be concerned in any activity which would or might have an adverse effect on the profitability of the Business; or
grant, or purport to grant, any licence, authority or other right to anyone else to use the Intellectual Property other than in accordance with this Terms of Service.
5.2 Licensee’s undertakings
Throughout the Term, the Licensee undertakes to:
use its best endeavours to preserve the value and validity of the Intellectual Property;
notify the Licensor of any suspected infringement of the Intellectual Property;
take such reasonable action as the Licensor may direct at the expense of the Licensee in relation to such infringement;
duly and punctually comply with all Applicable Laws; and
Maintain all authorisations required for the validity, enforceability and performance of its obligations under this Terms of Service and promptly renew and maintain in full force and effect those authorisations.
6. NEWLY CREATED INTELLECTION PROPERTY
Where the Licensee or the Licensor is taken to have created New IP, and such New IP is a modification or Improvement to the existing Intellectual Property, the Licensee acknowledges that the Licensor shall own all title to, Copyright in and other Intellectual Property Rights in the modification or Improvement of the Intellectual Property, and such New IP shall be taken to form part of the Intellectual Property defined in clause 1.1(k) of this Terms of Service and be subject to the terms of this Licence.
6.2. The Licensee undertakes to execute all documentation required by the Licensor to ensure the operation of clause 6.1 and cause any Licensee Director to execute all required documentation. The Licensee must do all things necessary to keep the Licensor’s Intellectual Property in a secure manner and take all steps necessary to safeguard the confidentiality of the Licensor’s Intellectual Property.
Subject to clause 7.2, each party must keep confidential the terms of this Terms of Service, the Intellectual Property, any New IP and all Technical Information and must not disclose the Confidential Information. This clause 7.1 is effective from the date of this Terms of Service and survives the termination of this Terms of Service.
A party may make any disclosures in relation to this Terms of Service as, in its absolute discretion, it thinks necessary to:
its professional advisers, bankers, financial advisers and financiers, if those persons undertake to keep the information disclosed confidential;
comply with any Applicable Law or requirement of any regulatory body; or
any of its employees, contractors or agents to whom it is necessary to disclose the information, or receipt of an undertaking from that employee, contractor or agent to keep the information confidential.
8.1 Licensee Indemnities
Notwithstanding any other provision of this Terms of Service or any rights the Licensor may have at common law, the Licensee must indemnify, and keep the Licensor indemnified against all losses, damages, expenses, costs (including, without limitation, court and legal costs on a solicitor and own client basis) of any kind whatsoever and any claim or action against the Licensor or its officers, employees or agents resulting from or arising out of:
any representation or warranty given by the Licensee concerning the Intellectual Property;
any claim or demand or suit by any person against the Licensor arising out of or in respect of the exploitation of the Intellectual Property and/or Business including but not limited a third party’s use of the Intellectual Property, by the Licensee; or
any breach of any of the terms of this Terms of Service by the Licensee.
9. COSTS AND STAMP DUTY
Each of the parties to this Terms of Service must bear its own legal and other costs and expenses in connection with the preparation, execution and completion of this Terms of Service and of other related documentation.
9.2 Stamp Duty
The Licensee must pay any stamp duty (otherwise known as transfer duty) payable in connection with the execution and performance of this Terms of Service.
In the event of an actual breach of the obligations under this Terms of Service by the Licensee, the Licensee must:
cease using the Intellectual Property; and
return to the Licensor all products, intellectual property, information (including, without limitation, the Confidential Information) and documentation (whether in writing, electronic or other form and whether originals or copies) pertaining to the Intellectual Property and the Licensee’s use of the Licence.
10.2 Injunction Relief
The Licensee acknowledges and agrees that any breach of its obligations in relation to confidentiality will result in the Licensor suffering loss for which damages alone may not be an adequate remedy and that in the event of an actual breach or suspected breach of this Terms of Service, the Licensor is entitled to seek injunctive relief in addition to damages or any other action or relief available at law or in equity.
11. ASSIGNMENT AND SUB-LICENSE
The Licensee must not either directly, indirectly or inadvertently, either by itself, or as its agents, neither purport to, nor sub-licence the Intellectual Property (or any part of it) granted to it by virtue of this Terms of Service without the prior written consent of the Licensor.
The Licensee must not assign all or any of its rights or obligations under this Terms of Service without the prior written consent of the Licensor.
11.3 Deemed Assignment
If the Licensee is a corporation, any change in the principal shareholding or composition of the board of directors altering the effective control or control of one half or greater of the shares of the board is an assignment of this Licence and must be dealt with in accordance with this Terms of Service.
11.4 Sale by Licensor
The Licensor may only assign its rights under this Terms of Service, sell, transfer or otherwise deal with the Intellectual Property to a third party unless the third party has signed, and delivered to the Licensee, a Terms of Service from the third party containing covenants in favour of the Licensee that the third party will be bound by the terms of this Terms of Service and will not transfer its interest in the Intellectual Property unless it obtains a similar Terms of Service from its transferee.
12. DISPUTE RESOLUTION
12.1 Dispute Notice and Reply Notice
Any party (‘Initiating Party’) claiming that a Dispute has arisen must give the other party (‘Recipient Party’) a notice setting out brief details of the Dispute (‘Dispute Notice’). Within five (5) Business Days of service of a Dispute Notice, the Recipient Party must give the Initiating Party a notice setting out brief details of the Recipient Party’s position on the Dispute (‘Reply Notice’).
12.2 Parties to Meet
If a Dispute Notice and a Reply Notice are given, the parties must meet in an effort to resolve the Dispute. At least one meeting of the parties must take place within five Business Days of delivery of a Reply notice.
12.3 Nominees to meet
If the parties do not resolve the Dispute within the time specified in clause 12.2, the Initiating Party and the Recipient Party must each nominate a person with authority to settle the Dispute for the purpose of resolving the Dispute, and must ensure that their authorised representatives meet to endeavor to resolve the Dispute within a further five (5) Business Days.
12.4 Recipient party fails to comply
If the Recipient Party does not give a Reply Notice or ensure that its authorised representative under clause 12.3 attends a meeting within the time periods in clause 12.2 and 12.3 respectively, the Initiating Party may proceed immediately with resolving the Dispute under this clause.
12.5 Recipient party fails to comply
If the parties do not resolve the Dispute within the time specified in clause 12.2 and 12.3, the Dispute is by this clause submitted to mediation. The mediation must be conducted in Queensland. The Australian Centre for International Commercial Arbitration (ACICA) Mediation Rules apply (at the date of this Terms of Service).
If the Dispute, controversy or claim is not settled within 60 days of following a written invitation to mediate given pursuant to clause 12.5(a) (unless such period is extended by agreement of the parties), it shall be and is hereby submitted to arbitration in accordance with, and subject to the ACICA Arbitration Rules.
Notwithstanding the existence of a Dispute or difference each party shall continue to perform their obligations under this Terms of Service.
This Licence shall terminate on the earlier of:
If the Licensor has provided written notice to the Licensee regarding the Licensee’s breach of this Terms of Service and provided that notice sets out how such breach is to be remedied, allows not less than twenty-one (21) days for the Licensee to rectify such breach (the ‘Default Notice’) and the Licensee fails to rectify such breach in accordance with the Default Notice, the day immediately following expiry date provided in the Default Notice;
Insolvency or bankruptcy of the Licensee;
The Licensee ceases to carry on its Business for a continuous period of 12 months or more;
The date which is thirty (30) days following written notification from the Licensor to the Licensee; or
The date which is thirty (30) days following written notification from the Licensee to the Licensor.
13.2 Injunction Relief
Immediately on termination of the Licence in accordance with clause 13.1, the Licensee must:
cease using the Intellectual Property; and
return to the Licensor all products, Intellectual Property, information (including without limitation, confidential information) and documentation (whether in writing, electronic or other form and whether originals or copies) pertaining to the Intellectual Property, the Licence and the Licensee’s use of the Licence.
14. GENERAL PROVISIONS
14.1 Warranty of authority
Each of the parties hereto which is a body corporate declares that it is empowered by its constitution or the “Replaceable Rules” set out in the Corporations Act 2001 (Cth) to enter into and execute this Terms of Service and all such other documents as are contemplated by this Terms of Service, and in the case of any party which is a trustee, the trust Terms of Service of which it is a trustee and any amendments thereto empower it so to do without the consent of any beneficiary thereto or that consent has been attained or waived.
The parties to this Terms of Service will not be deemed to have waived any of their respective rights hereunder unless such waiver is in writing signed by the party waiving its rights.
The covenants, undertakings and conditions contained in this Terms of Service are severable and be so construed as not to infringe any laws which may affect this Terms of Service. If such covenant, undertaking or condition on its true interpretation is found to infringe any such laws, the covenant, undertaking or condition must be read down to the extent as may be necessary to ensure that it does not infringe any such law and as may be reasonable in all the circumstances so as to give it a valid operation or a partial character. In the event that the infringing covenant, undertaking or condition cannot be so read down, it must be deemed void and severable and must be deemed deleted from this Terms of Service to the same extent and effect as if never incorporated herein and the parties hereto must negotiate with each other for the purpose of substitution an appropriate clause, so far as is practicable, in lieu of such deleted covenant, undertaking or condition.
Notwithstanding completion of the agreement contemplated by this Terms of Service, any general or special condition or any part or parts thereof to which effect is not given by such completion and capable of taking effect after completion remain in full force and effect.
14.5 Entire agreement
The parties acknowledge that these conditions herein contained constitute the entire agreement between the parties regarding its subject matter notwithstanding any negotiations or discussions prior to execution hereof.
14.6 No Inducement by third parties
Each party expressly acknowledges that it has not been induced to enter into this Terms of Service by any representation, verbal or otherwise, made by or on behalf of any other party which is not set out in the body of this Terms of Service.
This Terms of Service may be executed in original form and/or by facsimile or email transmission in any number of counterparts, and all counterparts taken together shall constitute one and the same instrument and is binding on the exchange of executed PDF copies between the parties.
This Terms of Service must be interpreted according to and enforced pursuant to the laws of the State of Queensland and each party hereby submits to the jurisdiction of the Courts of and in that State located in Brisbane.
15.1 How notices are given
Notices and other documents and communication authorised or required to be given by one party to another (other than day to day communications between the parties) pursuant to this Terms of Service may be executed by the party giving the notice, or its solicitors or any of its officers and may be given by:
hand delivery; or
by letter or by email transmission addressed to the other party at that party’s address, or to such other address as it may from time to time notify in writing to the other parties as its address for service of notices.
15.2 Delivery of notices
All notices which are required to be given under this Terms of Service must be in writing and must be sent to the address of the recipient or such other address as the recipient may designate by notice given in accordance with this clause from time to time.
Any notice may be delivered by hand or by prepaid letter or email. Any such notice will be deemed to have been served 24 hours after posting domestically or 14 days after posting internationally (except by prepaid letter), on successful transmission by the sender (if sent by facsimile), or when the email enters the recipient’s mail server (if sent by email).