Terms and Conditions
These terms and conditions form an agreement between Method Operations Pty Ltd ACN 666 691 916 (Company) and an individual or a corporate entity registering to be a user of the Company’s Services (referred to as the Customer).
Important information
Please note that:
- this agreement will automatically renew for a further Licensing Period (being twelve (12) months, unless otherwise agreed between the parties in writing) unless one of the parties provides written notice to the other party at least 30 days prior to the end of the current Licensing Period that it does not wish to renew (see clauses 2.2 and 19 for how a party may provide written notice that it does not wish to renew);
- the Company may vary the Fees and the terms of this agreement on renewal of this agreement but the Customer will have the right to accept or reject these by not renewing the agreement (see clause 2.2);
- each party can terminate this agreement at any time without cause by providing 60 days’ written notice (see clause 13.1);
- each party to this agreement provides indemnities in favour of the other party, including for:
- any fraudulent, unlawful or negligent acts or omissions, or wilful breach of this agreement;
- personal injury to, or death of, any person or damage to, or loss of, any tangible property;
- a breach of clause 9.2(a) or 9.3(a) (relating to the Company IP or the Customer IP); and
- a breach of confidentiality obligations, by the indemnifying party or its Personnel (see clause 14);
- the Company limits its overall liability under this agreement (see clause 15.2) and excludes certain forms of liability under this agreement (see clause 15.3), although nothing in this agreement affects the Customer’s statutory rights as a consumer.
OPERATIVE PARTS
1. Defined terms and interpretation
1.1 Defined terms
The following definitions apply unless the context requires otherwise:
App has the meaning given in clause 4.2(b).
App Stores means the Apple and Google Play stores.
Australian Consumer Law means the Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Authorised User Limit means the number of the Customer’s Personnel that are permitted to use the Platform, as specified at https://sitesched.com/pricing or as otherwise agreed between the parties in writing, and as amended in accordance with clause 3.3.
Business Day means:
- for the purpose of sending or receiving a notice, a day which is not a Saturday, Sunday, a bank holiday or a public holiday in the city where the notice is received; and
- for all other purposes, a day which is not a Saturday, Sunday, a bank holiday or a public holiday in Sydney.
Commencement Date means the date that this agreement is accepted by the Customer.
Company IP has the meaning given in clause 8.1(a).
Company Policies means the Company’s written policies, as provided in full by the Company to the Customer from time to time and any changes to those policies, in each case of which notice has been provided by the Company to the Customer in accordance with clause 10.3.
Confidential Information means all information of any kind belonging or relating to the Discloser or its business affairs, whether or not it is in tangible or documentary form, and whether or not marked or identified as being confidential, and includes the subject matter and terms of this agreement, information relating to the design, specification and content of the Platform, and information relating to the personnel, policies or business strategies of the Discloser.
Corporations Act means the Corporations Act 2001 (Cth).
Customer Data means any information (including information contained in documents or material):
- uploaded directly into the Platform by the Customer or its Personnel;
- which has been provided by the Customer or its Personnel to the Company, including in electronic storage devices, in order for the Company to perform the Services; or
- about the Customer or its Personnel which has been generated on or collected via the Platform.
Customer Personal Information means Personal Information that is contained in the Customer Data.
De-identified Customer Data means Customer Data in respect of which all Personal Information and information identifying the Customer or any of its Personnel has been removed by such Customer Data being aggregated with other data sets, anonymised or otherwise.
Discloser has the meaning given in clause 11.1.
Fees means the fees payable by the Customer to the Company under this agreement.
Initial Licence Fee means the amount agreed between the Company and the Customer prior to the Commencement Date, and if no such agreement has been made the amount listed on https://sitesched.com/pricing as at the Commencement Date.
Force Majeure Event means any circumstance beyond the reasonable control of a party (other than lack of funds), whether or not foreseeable at the date of this agreement, which results in a party being unable to observe or perform or continue to perform on time an obligation under this agreement.
GST Amount means, in relation to a Payment, an amount arrived at by multiplying the Payment (or the relevant part of a Payment if only part of a Payment is the consideration for a taxable supply) by the appropriate rate of GST (being 10% when the GST Law commenced).
GST Law has the meaning given to that term in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended) and any regulation made under that Act.
Initial Term means one Licensing Period commencing on the Commencement Date, unless otherwise agreed in writing by the parties.
Insolvency Event means:
- in respect of a body corporate, the occurrence of any of the following in respect of that body corporate:
- an order is made or an effective resolution is passed for the winding up, dissolution without winding up (otherwise than for the purposes of solvent reconstruction or amalgamation) or deregistration of that body corporate;
- a receiver, receiver and manager, judicial manager, liquidator, administrator or like official is appointed or expected to be appointed over the whole or a substantial part of the undertaking or property of that body corporate;
- a holder of an encumbrance takes possession of or exercises any other rights arising from the encumbrance over the whole or any substantial part of the undertaking and property of that body corporate, or indicates an intention to do so;
- that body corporate becomes insolvent or any circumstance exists or arises which would require a court to presume that that body corporate is insolvent;
- that body corporate enters into or takes any steps to enter or proposes to enter into any arrangement, compromise or assumption with or assignment for the benefit of its creditors or a class of them;
- that body corporate stops, suspends or threatens to stop or suspend paying its debts as and when they fall due;
- any analogous event under the laws of any applicable jurisdiction; or
- anything occurs under the law of any jurisdiction which has a substantially similar effect to any of the above paragraphs of this definition;
- in respect of a natural person, the occurrence of any of the following in respect of that natural person:
- an application is made to a court for an order that the person be declared bankrupt, and the application is not withdrawn, struck out or dismissed within 15 Business Days after it is made;
- the person enters into an arrangement or composition with one or more of the person’s creditors, or an assignment for the benefit of one or more of its creditors;
- a writ of execution is levied against the person or a material part of the person’s property which is not dismissed within 15 Business Days after the writ is levied; or
- anything occurs under the law of any jurisdiction which has a substantially similar effect to any of the above paragraphs of this definition.
- trade marks, trade names, domain names, logos, patents, inventions, design rights, copyrights, circuit layout rights, trade secrets, and the right to have information kept confidential (including know-how), and all similar rights in any part of the world; and
- where the rights referred to in paragraph (a) are obtained or enhanced by registration, any registration of such rights and applications and rights to apply for such applications.
Licensing Period means twelve (12) months, unless otherwise agreed in writing by the parties.
Loss means:
- any claim, demand, remedy, requisition, objection, suit, injury, damage, loss, liability, action, proceeding, right of action or claim for compensation;
- a valid request, direction, notice, demand, requirement, condition (including condition of an approval) or order from an authority that requires anything to be done or not to be done; or
- any reasonable cost (including legal costs on a solicitor and client basis), charge, expense, outgoing, payment or other expenditure of any nature.
Non-Renewal Notice has the meaning given in clause 2.2(a).
Payment means:
- the amount of any monetary consideration (other than a GST Amount payable under clause 6.1); or
- the GST exclusive market value of any non-monetary consideration,
Platform means the Sitesched online platform.
Personal Information has the meaning given in the Privacy Act.
Personnel in respect of a party includes officers, employees, agents, contractors and sub-contractors of that party.
Point of Contact means the individual notified by the Customer to the Company as the point of contact for the Support Services.
Privacy Act means the Privacy Act 1988 (Cth).
Recipient has the meaning given in clause 11.1.
Related Bodies Corporate has the meaning given in the Corporations Act.
Renewal Notification has the meaning given in clause 2.2(b).
Renewal Term has the meaning given in clause 2.2(a).
Services means the following services provided by the Company as part of the Licence Fee:
- provision of the Platform (including ongoing Platform updates in accordance with clause 4.3); and
- provision of the Support Services.
Support Services means the support services specified in Schedule 1.
Tax means any tax, levy, charge, impost, fee, deduction, goods and services tax, compulsory loan or withholding which is assessed, levied, imposed or collected by any government agency and includes any interest, fine, penalty, charge, fee or any other amount imposed on or in respect of any of the above but excludes stamp duty.
Term means the Initial Term and each Renewal Term (if and as applicable), unless terminated earlier in accordance with this agreement.
Underlying Systems means the IT solutions, systems and networks (including software, firmware and hardware) used to provide the Platform and the Services, including any third party solutions, systems, data hosting providers and networks.
Usage Right has the meaning given in clause 3.1(a).
Upgrades means any upgrades made to or new releases of the Platform issued in accordance with clause 4.3.
Virus means any virus, Trojan horse, worm or other software routine designed to permit unauthorised access to any software or disable any software or data.
Web Service has the meaning given in clause 4.2(a).
1.2 Interpretation
In this agreement, except where the context otherwise requires:
- the singular includes the plural and vice versa and a gender includes other genders;
- other grammatical forms of a defined word or expression have a corresponding meaning;
- a reference to a clause, paragraph, schedule or annexure is to a clause or paragraph of or schedule or annexure to this agreement and a reference to this agreement includes any schedule and annexure;
- a reference to a document or agreement, includes the document or agreement as novated, altered, supplemented or replaced from time to time;
- a reference to AUD, AU$ or $ is to Australian dollars;
- a reference to time is to Sydney time;
- a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
- the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;
- a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this agreement or any part of it; and
- if a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day.
1.3 Headings
Headings are for ease of reference only and do not affect interpretation.
2. Term and Renewal
2.1 Initial Term
This agreement begins on the Commencement Date and will continue for the Initial Term unless terminated earlier in accordance with this agreement.
2.2 Renewal
- The Initial Term will automatically be renewed for successive Licensing Periods (each a Renewal Term) unless either party provides a notice in writing to the other party at least 30 days prior to the end of the Initial Term or the then current Renewal Term (as applicable) (Non-Renewal Notice) that it does not wish to renew the agreement for a further Licensing Period.
- The Company will notify the Customer in writing to both the physical address and email address of the Customer (as notified by the Customer to the Company, and as varied by any Notice) at least 60 days prior to the end of the Initial Term and each Renewal Term of the following (Renewal Notification):
- that the agreement will be automatically renewed for a further Licensing Period at the end of the Initial Term or relevant Renewal Term if neither party issues a Non-Renewal Notice to the other party in accordance with clause 2.2(a) at least 30 days before the end of the Initial Term or the relevant Renewal Term;
- how the Customer may issue a Non-Renewal Notice to the Company in accordance with the notice requirements under clause 19;
- the last day on which the Customer may issue a Non-Renewal Notice before this agreement is renewed for a further Licensing Period; and
- full details of any proposed variation of the terms and conditions of this agreement that will take effect from renewal and how the proposed variation differs from the terms and conditions of this agreement prior to renewal, including any change in Fees for the next Renewal Term (New Licence Fee).
- The Company will issue a second Renewal Notification to the Customer at least 45 days prior to the end of the Initial Term and each Renewal Term including the same details as in the first Renewal Notification.
- On renewal of this agreement for each Renewal Term, this agreement will continue from the end of the Initial Term or relevant Renewal Term for the duration of the next Renewal Term and will otherwise be subject to the terms and conditions of this agreement, as varied in accordance with the applicable terms and conditions, if any, of the Renewal Notification, unless terminated earlier in accordance with this agreement.
3. Platform Usage Right
3.1 Grant of Usage Right
- Subject to the payment of the Licence Fee by the Customer, the Customer is granted a limited, non-exclusive, non-transferable right to use the Platform for the sole purpose of receiving the Services for the Term (Usage Right).
- All other rights and licences not expressly granted to the Customer by the Company are reserved by the Company.
3.2 Sub-licensing
The Usage Right cannot be assigned or sub-licensed by the Customer without the Company’s prior written consent.
3.3 Authorised Users
- The Company will permit the number of the Customer’s Personnel to use the Platform up to the Authorised User Limit.
- The Customer may notify the Company via the Platform that the Customer wishes to increase the Authorised User Limit (AU Request). The AU Request must specify the number of the Customer’s Personnel that the Customer requires to have access to the Platform.
- Upon receipt of an AU Request, the Company may notify the Customer via the Platform of a corresponding increase to the Licence Fee in response to the proposed increase to the Authorised User Limit (AU Increase Notice).
- If the Customer accepts the AU Increase Notice via the Platform, on and from the date that the Customer accepts the AU Increase Notice:
- the Authorised User Limit will be increased in accordance with the AU Request; and
- the Licence Fee will be increased in accordance with the AU Increase Notice.
4. Services
4.1 Services
Subject to payment of the Licence Fee by the Customer, the Company will provide the Services for the duration of the Term.
4.2 Web Service and App
- The Company will make the Platform available as a web service via a URL (Web Service).
- The Company may make the Platform available as an application on the App Stores (App). If the App becomes available, the App must be accessed using an account set up on the App Stores by the Customer.
4.3 Upgrades
- The Customer acknowledges and agrees that the Company may upgrade or release a new version of the Platform:
- at its discretion, provided that such upgrade or new version does not, or is not reasonably expected to, result in the Platform overall being degraded or materially less efficient to the Customer; or
- as is necessary to meet the requirements of any applicable law or regulation.
- The Company may, from time to time, develop new features for the Platform and may, at its sole discretion, offer these new features to the Customer for an additional fee to be agreed between the parties.
4.4 Security
The Company will follow the security measures and processes set out below:
- the Platform will:
- be hosted by the Digital Ocean Cloud Platform or similar hosting provider with equivalent security standards; and
- use the Stripe payments platform, or similar payment platform provider with equivalent security standards;
- the Company will use reasonable precautions and logical security measures designed to ensure ongoing protection against Viruses and unauthorised access to the servers hosting the Platform.
5. Support
- If the Customer requires any technical support, the Customer must use the relevant support system as advised by the Company (Support Request).
- All Support Requests must be made by the Point of Contact. The Company will not accept any Support Requests made by any other employees, contractors or agents of the Customer.
6. Fees and Invoicing
6.1 Payment of fees
- In consideration of the Services to be rendered and provided by the Company pursuant to this agreement, the Customer agrees to pay the Company the Licence Fees.
- Unless otherwise agreed in writing by the parties:
- the Company will invoice the Customer in arrears on the last Business Day of each calendar month for the Licence Fees payable in respect of Services provided to the Customer during the relevant month; and
- invoices rendered by the Company will be paid by the Customer within 30 days of receipt of a valid tax invoice.
6.2 Non-payment
If any amounts payable under this agreement by one party (the Payor) to the other (the Payee) are not paid in accordance with this agreement, the Payor has the right, at any time and with immediate effect by notice in writing to the Payee, to:
- charge the Payee interest on amounts not paid at a rate equivalent to 2% per annum plus the cash rate set by the Reserve Bank of Australia, calculated daily from the day after the due date to the day of payment of the debt;
- if the Payor is the Company, the Payor can suspend the provision of all or part of the Services and the Usage Right and disable the Customer’s access to the Platform in accordance with clause 12(a).
6.3 GST
- Expressions set out in italics in this clause 6.3 bear the same meaning as those expressions in the GST Law.
- All Payments have been set or determined without regard to the impact of GST.
- Subject to clause 6.3(e), if the whole or any part of a Payment by a party (including amounts referred to in clause 6.3(d)) is the consideration for a taxable supply, the GST Amount in respect of the Payment must be paid to the supplier of the taxable supply as an additional mount, at the same time and in the same manner as the Payment is otherwise payable or as otherwise agreed in writing.
- If a Payment due under this agreement is a reimbursement or indemnification by one party of an expense, loss or liability incurred or to be incurred by the other party, the Payment will exclude any GST forming part of the amount to be reimbursed or indemnified to the extent to which the other party can claim an input tax credit.
- A party’s obligation to make payment under clause 6.3(c) is subject to a valid tax invoice being delivered to the party liable to pay for the taxable supply.
- Where the supplier has become subject to any penalties or interest because of a late payment by the supplier to the Australian Taxation Office of any GST Amount and that late payment is a result of the failure of the recipient to comply with the terms of this clause 6.3, the recipient must pay to the supplier an additional amount on demand equal to the amount of those penalties and interest.
- The recipient must indemnify the supplier on demand in respect of all loss or damage arising from a breach by the recipient of its obligations under this clause.
7. Customer Data
7.1 Customer Data
- As between the Customer and the Company, all Customer Data is owned by the Customer.
- The Customer grants to the Company, and warrants that it has the right to grant to the Company, a limited, non-exclusive, non-transferable, royalty-free and revocable licence to use the Customer Data for the Term to allow the Company to perform its obligations under this agreement.
7.2 De-identified Customer Data
The Customer grants to the Company, and warrants that it has the right to grant to the Company, a perpetual, non-exclusive, irrevocable, transferable and royalty-free licence to use, reproduce, edit, adapt and exploit the De-identified Customer Data for:
- any purpose in connection with Company’s business (including the purpose of further development of the Platform and the Company’s other goods and services, and reporting); and
- general (non-Customer specific) industry insights and reporting.
7.3 Privacy
- In providing the Services, the Company may deal with and the Platform may host Customer Personal Information when, and for the purpose of, providing the Services under this agreement.
- The Customer is responsible for obtaining all consents and permissions required, and satisfying all legal requirements:
- for it to collect, store and disclose to the Company the Customer Personal Information for any purpose in connection with this agreement; and
- to enable the Company to receive, host, disclose on the Platform and process Customer Personal Information in accordance with this agreement.
- The Customer acknowledges and agrees that to the extent that the Customer Data contains Customer Personal Information, in collecting, hosting and processing that information through the provision of the Services, the Company is acting as an agent of the Customer for the purposes of applicable Privacy Laws.
- The Company must comply with applicable Privacy Laws when handling Customer Personal Information.
7.4 Warranty
The Customer warrants and represents that Customer Data does not, and the Customer providing Customer Data to the Company does not, breach the privacy, confidentiality, or Intellectual Property Rights of any person at any time, or any applicable law or regulation.
7.5 Access
The Company may permit access to the Customer Data by or disclose the Customer Data to:
- any duly authorised law enforcement officer; or
- any other person if required by law (including in response to any actual or suspected data breach),
7.6 Loss
If the Company or its Personnel directly cause or contribute to any loss, corruption or destruction in the accessibility or useability of the Customer Data, the Company must, at its own cost and expense, use its reasonable endeavours to restore such data. Subject to clause 15.1, this is the entire obligation and sole remedy for the Company’s (or its Personnel’s) loss of Customer Data.
8. Intellectual Property
8.1 The Company’s Intellectual Property Rights
- All Intellectual Property Rights in or subsisting in all information, materials and services developed or provided by the Company in connection with this agreement, including:
- the Platform, including:
- the source and object code of the Platform;
- any Upgrades;
- Platform design and Platform functionality;
- all other applications contained within the Platform; and
- all creative content, marketing materials, and documentation,
- the Platform, including:
- To the extent, if any, that ownership of the Company IP does not automatically vest in the Company by virtue of this agreement or otherwise, the Customer hereby transfers and assigns to the Company all rights, title and interest which it may have in and to the Company IP.
8.2 Customer’s Intellectual Property Rights
- Subject to clause 8.3, all Intellectual Property Rights in or subsisting in all information and materials developed, owned or licenced by the Customer and provided by the Customer to the Company in connection with this agreement (Customer IP) shall remain the sole and exclusive intellectual property of the Customer or its licensors.
- To the extent, if any, that ownership of the Customer IP does not automatically vest in the Customer by virtue of this agreement or otherwise, the Company hereby transfers and assigns to the Customer all rights, title and interest which it may have in and to the Customer IP.
8.3 Feedback
If the Customer provides the Company with ideas, comments or suggestions relating to the Services and/or the Platform (together Feedback):
- all Intellectual Property Rights in the Feedback, and anything created as a result of the Feedback (including new material, enhancements, modifications or derivative works), are owned solely by the Company; and
- the Company may use or disclose the Feedback for any purpose.
9. Warranties and Acknowledgements
9.1 Mutual representations and warranties
Each party represents and warrants to the other that:
- the execution and delivery of this agreement by it and the performance of its obligations will not breach any law to which it is subject, or breach any contract to which it is a party or by which it is bound; and
- it either has or will obtain all licences, permits, contracts or agreements which are required for it to perform its obligations under this agreement.
9.2 The Company’s warranties
The Company warrants that:
- to its knowledge, neither the Platform, nor the use of the Platform by the Customer as contemplated by this agreement, infringes, violates or misappropriates any Intellectual Property Rights of any third party;
- to its knowledge, no further authorisation is required to grant the Customer the rights granted under this agreement; and
- the Services will be provided with reasonable care and diligence.
9.3 The Customer’s warranties
The Customer warrants and undertakes that:
- to its knowledge, neither the Customer IP nor the use of the Customer IP in connection with the Services or the Platform as contemplated by this agreement infringes, violates or misappropriates any Intellectual Property Rights of any third party;
- it will not, and it will procure that each of its Personnel does not:
- use the Services or the Platform for any unlawful purpose;
- allow any person other than the Customer’s Personnel to access the Platform using the Customer’s login credentials;
- allow the number of the Customer’s Personnel accessing the Platform using the Customer’s login credentials to exceed the Authorised User Limit, other than as agreed in accordance with clause 3.3;
- use the Services in any way that interrupts, damages, or impairs the Platform;
- reproduce, modify, adapt or create derivative works of the Platform;
- reverse engineer, copy, duplicate, disassemble, decompile, transfer, exchange or translate the Platform or otherwise seek to obtain or derive the source code of the Platform;
- attempt to undermine the security or integrity of the Platform;
- remove or tamper with any disclaimers or other legal notices published on the Platform;
- combine the whole or any part of the Platform with any other software, data or material;
- attempt to view, access or copy any material or data on the Platform other than the material or data to which the Customer is authorised to access; or
- use the Platform in a manner, nor transmit, input or store any Customer Data, that breaches any third party right (including Intellectual Property Rights and privacy rights) or is incorrect or misleading; and
- it will notify the Company immediately if there are any breaches of clause 9.3(b).
9.4 Acknowledgments
The Customer acknowledges and agrees that:
- the Company’s ability to provide the Platform in accordance with this agreement is dependent on the Customer complying with the connection specifications which are reasonably required to allow the Customer to connect to the Platform and as may be notified by the Company to the Customer from time to time;
- the Company may, from time to time, publish or permit the publication of content on the Platform which is sponsored or commissioned by a third party (Sponsored Content) without any compensation to the Customer, and the Customer must not remove, or attempt to remove, any of the Sponsored Content;
- the Company does not warrant that the Platform and the Services will be uninterrupted, error-free or completely secure;
- the Company does not warrant that the Customer Data will be completely secure; and
- the Company is not responsible or liable for monitoring or otherwise ensuring the integrity, completeness or accuracy of any of the Customer Data.
10. Customer’s obligations
10.1 General
The Customer must:
- provide all necessary information, documentation and assistance reasonably required by the Company to enable the Company to provide the Services;
- maintain, and ensure its Personnel that use the Platform maintain, the secrecy and confidentiality of all identification and log-in information required by the Customer and/or its Personnel to access and use the Services;
- maintain any licences or authorisations required for the purposes of receiving the Services;
- ensure all Customer Data required to use the Platform is in the form required by the Company; and
- co-operate, and ensure that each of its Personnel co-operates, with the Company as the Company reasonably requires.
10.2 Viruses
The Customer must not, and must procure that each of its Personnel does not, access, store, distribute or transmit any Viruses, or any material during the course of its use of the Platform:
- that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
- that facilitates illegal activity; or
- in a manner that is otherwise illegal or causes damage or injury to any person or property.
10.3 Company Policies
- The Customer must comply with the Company Policies.
- The Company will provide the Customer with two months’ notice of any change in the Company Policies or any new policies with which the Customer must comply. If the Customer does not wish to comply with the change in policy or any new policy, it has the right to terminate this agreement up to one month before such change or new policy is to come into effect. When the Company provides the Customer notice of the change in policy or new policy, the Company must also advise the Customer of their right of termination and the end date of that right.
11. Confidentiality
11.1 Obligations
Subject to clauses 11.2 and 11.3, a party (Recipient) may not disclose, divulge or release any Confidential Information of the other party (Discloser) to any third party without the prior written consent of the Discloser, nor will the Recipient use any Confidential Information of the Discloser for any purpose other than exercising a right or fulfilling an obligation under this agreement.
11.2 Disclosure
The Recipient may disclose the Confidential Information of the Discloser to its officers, employees and contractors, solely for the purposes of performing or receiving the Services under this agreement.
11.3 Exceptions
The obligations under clause 11.1 do not apply in respect of:
- information which is generally known to the public other than as a result of a breach of this agreement;
- information which that Recipient can prove was legitimately known to it independently of this agreement; or
- information of the Discloser which the Recipient is required to disclose where:
- the disclosure is required to be made by law. If disclosure is required by law, prior to making the disclosure the Recipient must notify the Discloser within ten days (or if the Recipient is required by law to make the disclosure within a lesser period, such lesser period) of that fact and, if reasonably practicable, give the Discloser the opportunity to object to the disclosure; or
- the disclosure is made to a professional legal adviser or professional auditor under a duty of confidentiality to the Recipient.
11.4 Return or destruction of all Confidential Information
- Subject to clause 11.4(b), the Recipient must, on the Discloser’s written demand or on the expiration or termination of this agreement (whichever occurs first), return to the Discloser or destroy (at the option of the Discloser) any documents or other media in the Recipient’s possession, power or control containing any of the Discloser’s Confidential Information, and will not retain any copies thereof in any form.
- To avoid doubt, clause 11.4(a) does not require the Company to return or destroy any Confidential Information:
- contained in back-up copies of Customer Data to the extent that the Company is required to retain such Customer Data; or
- that is required by the Company:
- to comply with any law;
- for the purposes of litigation; and
- for internal quality assurance, record keeping, or legal, insurance or corporate governance purposes,
12. Suspension of Services
- The Company may, upon written notice to the Customer, suspend the provision of all or part of the Services and the Usage Right and disable the Customer’s access to the Platform, without liability to the Customer, if:
- the Company reasonably believes the Customer or any of its Personnel has breached clauses, 6.1, 7.3, 9, 10 or 11;
- the Customer is in material breach of any other obligation under this agreement and where the breach is capable of being remedied, the Customer fails to remedy the breach within 20 Business Days of being notified of the breach; or
- the Company is required to do so by law.
- If the Company suspends and/or disables the Customer’s access to the Platform under clause 12(a), it will as soon as practically possible notify the Customer of:
- the suspension or disablement;
- the event that has given rise to that suspension and/or disablement;
- what investigations as to the event are being carried out; and
- the conditions before, and the likely timing by which, the Customer may re-access the Platform.
13. Termination
13.1 Termination for convenience
Either party may terminate this agreement at any time during the Term by providing the other party with 60 days’ written notice.
13.2 Termination for breach
A party (Non-Defaulting Party) may terminate this agreement at any time during the Term by written notice where the other party (Defaulting Party) commits a material breach of this agreement and:
- where the breach cannot be remedied, the Defaulting Party fails to offer adequate compensation for the breach within 20 Business Days of being notified in writing of the breach by the Non-Defaulting Party; or
- where the breach can be remedied, the Defaulting Party fails to remedy the breach within 20 Business Days of being notified in writing of the breach by the Non-Defaulting Party.
13.3 Termination for insolvency
Subject to sections 415D, 434J and 451E of the Corporations Act, either party may terminate this agreement immediately by written notice if the other party suffers an Insolvency Event.
13.4 Effects of termination
Upon termination of this agreement, the Usage Right is automatically revoked and all amounts owing by the Customer to the Company will become due and payable, and the Customer must promptly pay any such amounts to the Company.
13.5 Without prejudice
The rights of termination conferred by the provisions of this clause are without prejudice to any right of action or remedy of a party in respect of any breach of any term of this agreement.
14. Indemnity
14.1 Indemnity
Each party (Indemnifying Party) indemnifies the other party (Indemnified Party) against, and must pay on demand, all Losses suffered or incurred by the Indemnified Party or any of its officers, employees, agents or Related Bodies Corporate arising out of or in connection with:
- any fraudulent, unlawful or negligent acts or omissions, or wilful breach of this agreement by the Indemnifying Party or its Personnel;
- the personal injury to, or death of, any person or damage to, or loss of, any tangible property caused or contributed to by Indemnifying Party or its Personnel;
- a breach of clause 9.2(a) or 9.3(a) (as applicable) by the Indemnifying Party or its Personnel; or
- a breach of the confidentiality obligations in clause 11.1 by the Indemnifying Party or its Personnel,
14.2 Survival
The indemnity in this clause survives the termination of this agreement.
15. Limitation of Liability
15.1 Consumer guarantees
- If the Customer is a “consumer” under the Australian Consumer Law, the Services and the Platform come with consumer guarantees under the Australian Consumer Law that cannot be excluded by this agreement. Nothing in this agreement affects the Customer’s statutory rights as a consumer.
- For major failures with the Services and/or the Platform, a consumer is entitled:
- to cancel this agreement; and
- to a refund for the unused portion of the Licence Fee, or to compensation for its reduced value.
- A consumer is also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the Services and/or the Platform.
- If the failure with the Services and/or the Platform does not amount to a major failure, a consumer is entitled to have the failure with the Services and/or the Platform rectified in a reasonable time and, if this is not done, to cancel this agreement and obtain a refund for the unused portion of the Licence Fee.
15.2 Limited liability
To the maximum extent permitted by law and subject to clause 15.1, the Company’s liability for Losses incurred by the Customer arising out of or in connection with this agreement and whether in contract, tort (including negligence), statute or otherwise, other than caused by the gross negligence, fraud, criminal conduct or wilful misconduct of the Company, is limited, in aggregate, to [the total of the Fees paid by the Customer to the Company in the twelve month period immediately preceding the event giving rise to the Loss].
15.3 Exclusions
- To the fullest extent permitted by law, subject to clause 15.1, and except as expressly provided in this agreement, all terms, conditions, warranties, undertakings, inducements and representations, whether express or implied, statutory or otherwise, relating to the Platform and the Services are excluded.
- The Company does not exclude, restrict or modify any liability that cannot be excluded, restricted or modified, or which cannot be excluded, restricted or modified except to a limited extent, as between the Company and the Customer by law including liability under the Australian Consumer Law. However, where such statutory provisions apply, to the extent to which the Company is entitled to do so and subject to clause 15.1, the Company’s liability will be limited at its option to:
- the supply of the services again; or
- the payment of the cost of having the services supplied again.
- To the fullest extent permitted by law, the Company is not liable to the Customer, whether in contract, tort (including negligence), statute or otherwise, in connection with any right or remedy conferred on the Customer by law, or any liability of the Company to the Customer as a result of or in connection with this agreement:
- any Loss or damage, not arising naturally, that is, according to the usual course of things, from the relevant breach act or omission, whether or not such Loss may reasonably be supposed to have been in the contemplation of the parties at the time they entered the agreement as the probable result of the relevant breach; and
- any loss of revenue, loss of profit, loss of opportunity, loss of reputation or loss of data (in each case, whether direct, indirect or consequential),
16. Force Majeure
A party will not be liable or deemed to be in default for any failure or delay of performance (other than making a payment) under this agreement caused by a Force Majeure Event, provided always that the party whose performance is affected by such Force Majeure Event must promptly give written notice of such Force Majeure Event to the other party, specifying the obligations it cannot perform, fully describing the Force Majeure Event and estimating the time during which the Force Majeure Event will continue.
17. Subcontracting
- The Company may subcontract any of its obligations under this agreement without the Customer’s prior consent.
- The Company remains fully responsible for acts and omissions of its subcontractors in connection with this agreement as if they were the acts and omissions of the Company.
18. Dispute
- Subject to clause 18(g), a party must not start arbitration or court proceedings in respect of a dispute arising out of or in connection with this agreement (Dispute) unless it has complied with this clause 18.
- If any Dispute arises, the party claiming that a Dispute has arisen must notify the other party (giving details of the Dispute) and the parties will make every effort to resolve the Dispute by mutual negotiation followed by mediation in accordance with this clause 18.
- During the 14 day period after a notice is given under clause 18(b) (or such longer period agreed to in writing by the parties to the Dispute) (the Initial Period), each party must use its best efforts to resolve the Dispute through mutual negotiation between a representative from each party with authority to agree to a resolution of the Dispute.
- If the parties are unable to reach a resolution of the Dispute by mutual negotiation of their representatives by the end of the Initial Period, each party agrees that the Dispute must be referred for mediation in accordance with the mediation guidelines published by the Law Society of New South Wales, at the request of either party, to:
- a mediator agreed on by the parties; or
- if the parties are unable to agree on a mediator within 7 days after the end of the Initial Period, a mediator nominated by the then current President of the Law Society of New South Wales.
- Each party must bear its own costs of complying with this clause and the parties must bear equally the costs of the mediator.
- If a party has complied with clauses 18(a) to 18(d) and the Dispute has not been resolved within 30 days from the end of the Initial Period, then either party may terminate the dispute resolution process by giving written notice to the other party.
- Nothing contained in this clause will deny any party the right to seek injunctive relief from an appropriate court.
- The dispute resolution procedures in this clause will not apply where a party is entitled under this agreement to immediately terminate this agreement.
19. Notices
19.1 Service of notices
A notice, demand, consent, approval or communication under this agreement (Notice) must be in legible writing and in English addressed as shown below:
- if to the Company:
- Address: 40/2 Park St, Sydney NSW 2000
- Attention: Matthew Drury
- Email: Admin@sitesched.com
- if to the Customer, must be addressed to the Customer at the email address or physical address provided by the Customer to the Company.
19.2 Effective on receipt
A Notice given in accordance with clause 19.1 takes effect when received (or at a later time specified in it), and is taken to be received:
- if hand delivered or left at the recipient's address, on delivery;
- if sent by prepaid post, the third Business Day after the date of posting, or the seventh Business Day after the date of posting if posted to or from outside Australia; and
- if sent by email, upon receipt by the recipient email server (even if received or categorised or filtered as unwanted email or spam), unless the sender receives an automated notice that delivery has failed,
19.3 Process service
Any process or other document relating to litigation, administrative or arbitral proceedings in relation to this agreement may be served by any method contemplated by this clause in addition to any means authorised by law.
20. General
20.1 Alterations
Subject to clause 2.2, this agreement may be altered only in writing signed by each party.
20.2 Approvals and consents
Except where this agreement expressly states otherwise, a party may, in its discretion, give conditionally or unconditionally or withhold any approval or consent under this agreement.
20.3 Assignment
- Subject to clause 20.3(b), a party may only assign this agreement or a right under this agreement with the prior written consent of each other party.
- The Company may assign its rights under this agreement to:
- its Related Bodies Corporate; or
- to a third party on the sale of the Company’s business or assets (or the business or assets of a Related Body Corporate of the Company) to that third party.
20.4 Costs
Except where this agreement expressly states otherwise, each party must bear its own costs in relation to, and associated with, this agreement.
20.5 No merger
Except where this agreement expressly states otherwise, the rights and obligations of the parties under this agreement do not merge on completion of any transaction contemplated by this agreement.
20.6 Entire agreement
This agreement constitutes the entire agreement between the parties in connection with its subject matter and supersedes all previous written agreements or understandings between the parties in connection with its subject matter.
20.7 Further action
Each party must do, at its own expense, everything reasonably necessary to give full effect to this agreement and the transactions contemplated by it (including executing documents) and to use all reasonable endeavours to cause relevant third parties to do likewise.
20.8 Severability
If the whole or any part of a provision of this agreement is invalid or unenforceable in a jurisdiction it must, if possible, be read down for the purposes of that jurisdiction so as to be valid and enforceable. If however, the whole or any part of a provision of this agreement is not capable of being read down, it is severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of this agreement or affecting the validity or enforceability of that provision in any other jurisdiction.
20.9 Enforcement of indemnities
It is not necessary for a party to incur expense or make payment before enforcing a right of indemnity conferred by this agreement.
20.10 Survival
Any indemnity or obligation of confidentiality in this agreement is independent and survives termination of this agreement. Any other term which by its nature is intended to survive termination of this agreement survives termination of this agreement.
20.11 Waiver
A party does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy. A single or partial exercise by a party of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy. A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.
20.12 Relationship
This agreement does not create a relationship of employment, trust, agency or partnership between the parties.
20.13 Governing law
This agreement will be governed by and construed in accordance with the law for the time being in force in New South Wales, and the parties by entering into this agreement, are deemed to have submitted to the non-exclusive jurisdiction of the courts of that State.
20.14 Remedies cumulative
The rights provided in this agreement are cumulative with and not exclusive of the rights, powers or remedies provided by law independently of this agreement.
Schedule 1 – Support Services
1. Initial step
Prior to escalating a problem or situation to the phone and email support set out in paragraph 2 of this Schedule 1, the Customer must attempt to resolve the problem or situation on its own by using the resources available through the Platform, which may include but are not limited to:
- FAQs;
- Online documentation;
- Forums;
- User Guides;
- Training videos; and
- Troubleshooting guides.
2. In-Platform and Email Support
- In-Platform support will be available at all times, and the Company will endeavour to respond to the support request within 2 Business Days.
- Email support will be available at all times, and the Company will endeavour to respond to the Customer’s emails within 2 Business Days.
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