Parties

Symego Pty Ltd ABN 80 617 855 688 of 1 O’Connell Street, Sydney, NSW Australia  (trading as 'Qualie')

The Company (and users) for which this account is created

Recitals

A             Qualie has developed and owns Intellectual Property Rights in market research and ecommerce software.

B              Qualie has agreed to grant the Company a licence to use the Software, subject to the terms and conditions of this Agreement.

C              Qualie has agreed to provide support and maintenance services in respect of the Software on the terms and conditions of this Agreement.

Agreed terms

1               Definitions and interpretation

1.1           Definitions

In this agreement the following definitions apply:

Additional Users means any users added during the term of the agreement at any time;

Admin Upgrade means an upgrade to the Standard User Licence to enable the User to become a Admin User;

Admin User means a user of the Software utilising a version of the Software with advanced Admin related features and tools

Australian Consumer Law means Schedule 2 to the Competition and Consumer Act 2010 (Cth);

Background IP means:

(a)            in the case of Qualie, all Intellectual Property Rights subsisting in or relating to the Software owned by or licensed to Qualie and in existence at the Commencement Date, and/ or created by Qualie after the Commencement Date and excludes Foreground IP; and

(b)            in the case of the Company, all Intellectual Property Rights owned by or licensed to the Company and in existence at the Commencement Date and/ or created after the Commencement Date other than by or on behalf of Qualie and excludes Foreground IP;

Commencement Date means the date these terms are accepted;

Confidential Information means the confidential information of each Party which relates to the subject matter of this Agreement and includes, in relation to Qualie, information relating to:

(a)            the design, specification and content of the Software;

(b)            the Intellectual Property Rights in the Software;

(c)             the personnel, policies or business strategies of Qualie;

(d)            anything disclosed by either party during the course of that party’s use of the Software; and

(e)            the terms upon which the Software is being supplied and supported under this Agreement;

but excludes any information that enters the public domain other than through a breach of the obligations of confidentiality under this Agreement;

Designated Equipment means the computer and other hardware items described in the Services Terms, being the equipment upon which the Software may be used;

Documentation means any operating manuals and other printed and/or electronic materials (including users' manuals, flowcharts, drawings and software listings, which are designed to assist or supplement the understanding or application of the Software) that may be provided or made available by Qualie to Company during the Licence Term;

Edition means the edition of the Software as set out in the Services Terms;

Force Majeure means a circumstance beyond the reasonable control of the Parties that results in a Party being unable to observe or perform on time an obligation under this Agreement.  Such circumstances shall include, but shall not be limited to:

(a)            acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster;

(b)            acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damages, sabotage and revolution; and

(c)             strikes;

Foreground IP means all Intellectual Property Rights subsisting in or relating to the Software or the services to be provided hereunder where and to the extent that those come into existence after the Commencement Date, whether developed by or on behalf of either party, including but not limited to those rights in materials developed in accordance with clause 14(a);

GDPR is The General Data Protection Regulation (EU) 2016/679 ("GDPR") is a regulation in EU law on data protection and privacy for all individuals citizens of the European Union (EU) and the European Economic Area (EEA). It also addresses the export of personal data outside the EU and EEA areas. The GDPR aims primarily to give control to individuals over their personal data and to simplify the regulatory environment for international business by unifying the regulation within the EU

Group Member means an entity that is a related body corporate of the Company (as that term is defined in the Corporations Act 2001 (Cth));

GST means a tax payable under the GST Act;

GST Act means A New Tax System (Goods and Services Tax) Act (Cth) 1999;

Intellectual Property Rights means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trade marks, designs, patents, circuit layouts, business and domain names, inventions, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields;

Modify includes to modify, enhance, add to, alter, update and amend and "Modified" and "Modification" have corresponding meanings.  For the avoidance of doubt modification does not include any update or new release to the Software;

Party means a party to this Agreement;

Qualie’s Normal Business Hours means 0900 to 1700 on any day other than a Saturday, Sunday or public holiday in Australia;

Schedule means the schedule to this Agreement;

Software means the Qualie market research survey software and unless the context requires otherwise:

(a)            refers to any new releases, modifications, enhancements or updates thereof;

(b)            includes any software content created in accordance with clause 14(a); and

(c)            is a reference to the hosted service provided by Qualie that is associated with the Software;

Software Fee means the amount so specified in Services Terms and based on the capacity bought at any one time;

Standard User means a user of the Software with standard access rights but excluding the rights, access and features made available to Admin Users and “Standard User” has a corresponding meaning;

Support Charges means the charges set out in the Services Terms;

Support Services means the support services to be provided by Qualie to the Company pursuant to this Agreement in respect of the Software as detailed in this Agreement;

Territory means Australia; and

User means a user of the Software who is an employee of or agent. contractor or consultant engaged by the Company and unless the context requires otherwise includes both Additional Users and Standard Users and Admin Users.

1.2           Interpretation

In the interpretation of this agreement, unless the context otherwise requires:

(a)            headings are for ease of reference only and do not affect the meaning of this Agreement;

(b)            singular includes the plural and vice versa;

(c)            other grammatical forms of defined words or expressions have corresponding meanings;

(d)            a reference to a clause or a paragraph is a reference to a clause or paragraph in this Agreement;

(e)            a reference to a document, deed or agreement, including this Agreement includes a reference to that document, deed or agreement as novated, altered or replaced from time to time;

(f)             a reference to a person includes any type of entity or body of persons, whether or not it is incorporated or has a separate legal entity, and any executor, administrator or successor in law of the person;

(g)            monetary references are to Australian currency;

(h)            references to times are to the time in Sydney, Australia (Australian Eastern Standard Time or Daylight Savings as the case may be); and

(i)              a term or expression starting with a capital which is defined in these definitions has the meaning given to it in these definitions.

2               Delivery and Usage Rights

(a)            Qualie shall make available to the Company the cloud-hosted Software for the Users or as otherwise agreed between the parties in writing.  The Software shall be of the Edition specified in the Services Terms.

(b)            At any time during this Agreement, Qualie may discontinue the usage of the Edition specified in the Services Terms. Qualie shall then make available to the Company an alternative edition of the Software on the same terms as set out in this Agreement.

(c)            At any time during this Agreement, the Company may request Qualie to make available the Software to the Additional Users as notified by the Company in writing.

(d)            It shall be the responsibility of the Company to determine and notify Qualie as to which of its staff require and are to be granted Standard User and which are to be given Admin Upgrades.

(e)            The parties agree and acknowledge that Qualie is not required to provide any hardware or peripherals to the Company and that it shall be the sole responsibility of the Company to obtain and maintain any hardware and peripherals necessary or desirable to optimally operate the Software.

3               Software Fees and Support Charges

(a)            The Company shall pay the Software Fee and the Support Charges (where such support attracts a charge) at the rates and in the manner specified in the Services Terms.

(b)            In the event that for reasons other than a breach of this Agreement by Qualie:

(i)             Qualie is required to perform services in circumstances other than those expressly or reasonably anticipated by Qualie to be associated with the delivery or installation or supply of services of a similar nature; or

(ii)            there is a change in the timing or complexity of the supply of Support Services; then, provided that Qualie obtains the prior approval of the Company to performing such services, such approval not to be unreasonably withheld,

Qualie shall be entitled to payment of an additional charge on a time and materials basis in respect of additional resources reasonably utilised in order to fulfil its obligations under this Agreement.

(c)            The Software Fees and Support Charges are exclusive of taxes, duties and charges imposed or levied in Australia or overseas in connection with the supply, installation and support of the Software. Without limiting the foregoing, the Company shall be liable for any new taxes, duties or charges imposed subsequent to the Commencement Date in respect of the goods and services which are the subject of this Agreement.

(d)            Words defined in the GST Law have the same meaning in this clause, unless the context makes it clear that a different meaning is intended

(e)            In addition to paying the Software Fees and Support Charges and any other amount payable under or in connection with this Agreement (which is exclusive of GST), the Company will:

(i)             pay to Qualie an amount equal to any GST payable for any supply by Qualie in respect of which the Software Fees and Support Charges or other amount is payable under this Agreement; and

(ii)            make such payment on the date when the Software Fees and Support Charges or other amounts to which it relates is due.

4               Training

(a)            Qualie will at no charge to the Company provide basic “train the trainer” training in relation to the Software to an individual (or if more than one, individuals up to a number agreed to by Qualie) nominated by the Company. 

(b)            The training provided by Qualie under this agreement shall include the training listed in the Services Terms.

(c)            The Company shall be responsible at its own cost for providing and shall provide further training to its staff

(d)            The Company must notify Qualie in writing if the Company requires further training.  Qualie will provide such further training at the hourly rate set out in the Services Terms.  Fees incurred by Qualie for the provision of further training will be payable by the Company within seven (7) days of receipt of the invoice.

5               Software Conditions

(a)            The Company must use the Software in accordance with any reasonable operating instructions regarding its use that may be notified by Qualie from time to time.

(b)            The Company shall not copy, alter, modify or reproduce the Software except to the extent otherwise authorised by this Agreement or as expressly authorised under Part III Div 4A of the Copyright Act 1968 (Cth). The Company shall not reverse assemble or reverse compile or directly or indirectly allow or cause a third party to reverse assemble or reverse compile the whole or any part of the Software.  Nothing in this clause shall be construed as Qualie purporting to assert rights in the open source aspects of the Software. 

(c)            The Company shall not Modify (whether by itself of through a third party) or alter the Software or merge all or any part of the Software with any other software without Qualie’s written permission or except as otherwise allowed under this Agreement.

(d)            In addition to any other remedies available to Qualie under this Agreement or otherwise, any unauthorised use, alteration, modification, reproduction, publication, disclosure or transfer of the Software will entitle Qualie to any available equitable remedy against the Company.

(e)            The Company must supervise and control the use of the Software in accordance with the terms of this Agreement and must ensure that all Users, its employees, sub-contractors and other agents who have authorised access to the Software are made aware of the terms and conditions of this Agreement.

(f)             Qualie shall only be obliged to support the Software by providing advice, training, error correction, modifications, updates, new releases or enhancements or otherwise to the extent specified in this Agreement.

(g)            The Company acknowledges except as provided to the contrary in this Agreement that there is no transfer of title or ownership to the Company of the Software or the Documentation or any modifications, updates or new releases of the Software nor any Intellectual Property Rights relation thereto.

(h)            The Company guarantees and shall procure that each Group Member to whom a licence of the Software may be granted as permitted hereunder shall comply with all terms and conditions of use of the Software and all other applicable terms and conditions set out in this Agreement.  The Company agrees and acknowledges that it shall be responsible and liable for any acts or omissions of any Group Member that would be a breach of this Agreement if committed by the Company. 

6               Security

(a)            Qualie shall use commercially reasonable security technologies in providing the Software and any allied services and the Company must comply with any applicable security guidelines issued by Qualie and procedures Qualie makes known to the Company.  The Company agrees and acknowledges that Qualie does not control the transfer of data over telecommunications facilities, including the internet, and Qualie does not warrant secure operation of the Software or that security technologies will be sufficient to always prevent third party disruptions.

(b)            The Company shall be solely responsible for the use, supervision, management and control of the Software and Documentation.

(c)            The Company shall ensure that the Software is protected at all times from misuse, damage, destruction or any form of unauthorised access, use or modification.

(d)            The Company shall keep accurate records of use, copying, modification and disclosure of the Software. The Company shall permit Qualie to inspect such records at any time during the Company’s normal business hours. If Qualie requests, the Company shall furnish to Qualie a copy of all or any part of such records.

7               Nature of Support Services

(a)            Qualie shall support the Software which shall, at the reasonable discretion of Qualie, take the form of:

(i)             telephone advice (at no additional cost);

(ii)            “bug fixes” from time to time (at no additional cost).

(b)            Qualie shall provide the Support Services in response to a report by the Company of a suspected defect or error in the Software

(c)            The Company agrees and acknowledges that it must offer in-house support services to all Users by provision of its own highly competent, trained and readily accessible ‘help desk’ services, and that the Company must seek to address any support issue internally using these resources before requesting assistance from Qualie.

(d)            The parties agree that any Support Services not designated as being “at no additional cost” shall attract a charge in accordance with the provisions of this Agreement.

8               Support Availability

(a)            Qualie shall provide the Support Services in accordance with the service levels set out in Schedule 1.

(b)            Except as set out in the service levels in Schedule 1, Qualie does not warrant that it will be capable of promptly receiving, processing or otherwise acting upon a request for support which is made outside Qualie’s Normal Business Hours or that it can provide on-site Support Services outside Qualie’s Normal Business Hours.

(c)            Immediately after making a request for Support Services which may involve error correction or program modification, the Company shall give Qualie a documented example of the defect or error.

(d)            The Company shall, if so requested by Qualie, give Qualie a listing of output and any other data which Qualie requires in order to reproduce operating conditions similar to those present when any alleged defect or error in the Software was discovered.

9               Exclusions

(a)            Support Services required to be provided by Qualie under this Agreement do not include:

(i)             correction of errors or defects caused by operation of the Software in a manner other than that then currently specified by Qualie;

(ii)            correction of errors or defects caused by modification, revision, variation, translation or alteration of the Software not authorised by Qualie;

(iii)           correction of errors or defects caused by the use of the Software by a person not authorised by Qualie;

(iv)           correction of errors caused in whole or in part by the use of computer programs other than the Software;

(v)            correction of errors caused by the failure of the Company to provide suitably qualified and adequately trained operating and programming staff for the operation of the Software;

(vi)           training of operating or programming staff;

(vii)          rectification of operator errors;

(viii)         rectification of errors caused by an equipment fault;

(ix)           equipment maintenance;

(x)            diagnosis or rectification of faults not associated with the Software;

(xi)           furnishing or maintenance of accessories, attachments, supplies, consumables or associated items, whether or not manufactured or distributed by Qualie;

(xii)          correction of errors arising directly or indirectly out of the Company's failure to comply with this Agreement or any other agreement with Qualie; or

(xiii)         correction of errors or defects which are the subject of a warranty under another agreement.

(b)            If the Company so requests in writing, Qualie may at its option provide any of the services referred to in clause 11(a), in which case the Company shall pay an additional charge on a time and materials basis for providing such services.

10            Updates and New Releases

(a)            The Support Service shall include the provision of general updates to and new releases (if any) of the Software to fix bugs and add incremental features at no extra charge where Qualie designates such updates and new releases as compulsory. Qualie will continue to provide Support Services for any new or updated Software release in accordance with the then current Support Services pricing. The Company must accept such updates and new releases.

(b)            Premium updates and new releases of the Software that Qualie does not require the Company to accept shall be made available for purchase by Qualie as they become available.

(c)            Where the Company accepts an update or new release this Agreement applies in all respects to that update or new release to the extent that it is incorporated or replaces the previous version of the Software.

11            Content Creation for Company

(a)            Qualie may upon request from the Company provide services in the nature of creation, development and implementation of specific Software customisation, Company-specific customised templates and other commissioned content for use by the Company in connection with the Software, as may be agreed between the parties and subject to the payment of the applicable fees determined in accordance with the applicable Support Charges set out in the Services Terms, or as may otherwise be agreed between the parties in writing. Such commissioned content shall be considered “Foreground IP” for the purposes of ownership and licensing dealt with in clause 18.

(b)            Qualie shall use best efforts to ensure that all deliverables created in the course of services of the type described in clause 11(a) will be developed in accordance with any mutually agreed timetable, will be substantially as set out in any documentation agreed between the parties setting out the requirements for such deliverables and will be substantially free from errors.

(c)            If and to the extent that the Company requests or requires Qualie to include or incorporate any materials into such content, it warrants that it has all necessary rights, licences and clearances to include, and to procure Qualie to include, such materials in the content to be developed.

12            Additional Services

(a)            If the Company requires Qualie to provide any services not specifically provided for under this Agreement, its requirements must be set out in a statement of work pursuant to this Agreement (Statement of Work), in such format as Qualie may require from time to time.  A Statement of Work will have no effect unless signed by both parties.

(b)            Each Statement of Work will be deemed to comprise the specific terms and conditions set out in that Statement of Work and incorporate appendices and/or attachments applicable to that Statement of Work.  To the extent of a conflict between one or more provisions of this Agreement and that Statement of Work, the conflicting provisions in the Statement of Work shall prevail.

13            Confidentiality

(a)            A Party shall not, without the prior written approval of the other Party, disclose the other Party’s Confidential Information

(b)            A Party shall not be in breach of clause 17(a) in circumstances where it is legally compelled to disclose the other Party’s Confidential Information.

(c)            Each Party shall take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of this Agreement, do not make public or disclose the other Party’s Confidential Information.

(d)            Notwithstanding any other provision of this clause, Qualie may:

(i)             disclose the terms of this Agreement (other than Confidential Information of a technical nature) to its related companies, solicitors, auditors, insurers and accountants;

(ii)            with the prior written consent of the Company, publicise, promote and market the fact that the Company has taken a licence of, is or was a customer of Qualie and is or was a user of the Software and the Company consents to the royalty-free use of the Company’s name, logo and trade mark in that context.

(e)            This clause shall survive the termination of this Agreement.

14            Intellectual Property Rights

(a)            The parties agree and acknowledge that the Software comprises a combination of open source and proprietary (owned by Qualie) elements.  In the absence of any subsequent agreement to the contrary:

(i)             as between the parties, all Intellectual Property Rights pertaining to the Software, all Qualie Background IP and all Qualie developed Foreground IP shall be owned by Qualie and licensed in accordance with the terms of this Agreement; and

(ii)            as between the parties, all the Company’s Background IP and all Foreground IP developed by the Company shall be owned by the Company, and licensed to Qualie to the extent necessary to perform its obligations under this Agreement.

(b)            The Company shall have the right to request Qualie to execute an assignment in its favour of any Foreground IP created by Qualie, in particular in relation to content created pursuant to clause 11(a).  Qualie shall consider in good faith such request, taking into account the legitimate and reasonable operational needs of both parties.  Qualie agrees not to unreasonably withhold its consent to such assignment, but may seek to impose reasonable conditions upon such assignment.

(c)            The trade mark Compelling Consensus and Qualie are exclusive intellectual property of Qualie and no licence to use that trade mark is granted to the Company hereunder.

(d)            In the event that proceedings are brought or threatened by a third party against the Company alleging that the Company’s use of the Software constitutes an infringement of Intellectual Property Rights, Qualie may at its option and at its own expense conduct the defence of such proceedings. The Company shall provide all necessary co-operation, information and assistance to Qualie in the conduct of the defence of such proceedings.

(e)            The Company shall indemnify Qualie against any loss, costs, expenses, demands or liability, whether direct or indirect, arising out of a claim by a third party alleging any infringement of Intellectual Property Rights.

15            Warranty

(a)            The Company acknowledges that the Software is not guaranteed to be error free and further acknowledges that the existence of any error will not constitute a breach of this Agreement.  Notwithstanding the foregoing Qualie agrees that:

(i)             Subject to 15(b), throughout and for the period of the Software generally; but

(ii)            in respect of any customised modification to the Software created specifically for the Company, for a period of 90 days from the date that the Software is first made available to the User,

Qualie will, upon the Company’s request, at no additional charge to the Company and at its sole discretion use best efforts to:

(iii)           correct promptly each non-conformance of the Software; or

(iv)           replace the non-conforming Software with conforming Software; or

(v)            to the extent the above may not be reasonably obtained, Qualie may at its option, terminate this Agreement and refund a proportion of amount paid by the Company for the Software representing the unused portion of the licence as at that date. 

(b)            The obligations in clause 15(a) shall not apply if

(i)             any failure or non-conformance is due to abuse or use of the Software not in conformance with the Documentation;

(ii)            the Software was the subject of unauthorised modification by or on behalf of the Company;

(iii)           the Company fails to notify Qualie of the existence and nature of non-conformity promptly upon discovery;

(iv)           the Software is licensed for evaluation, testing or demo purposes only; or

(v)            Qualie has not received payment for all fees due under this Agreement.

(c)            All warranties provided to the Company  under this clause 15 expire upon termination of the Agreement, irrespective of the reason for terminating this Agreement.

16            Indemnity

The Company indemnifies Qualie against any loss or liability, including legal fees and expenses, arising from any claim, demand, suit, action or proceeding if such loss or liability arose out of or related to a breach of this Agreement. The Company indemnifies Qualie for every consequence flowing from a breach of this Agreement by the Company. This does not exclude or limit any rights Qualie may have to institute legal proceedings against the Company.

17            Implied Terms

(a)            Subject to clause 17(b) and to the maximum extent permitted by law, any condition, guarantee or warranty which would otherwise be implied in this Agreement or in relation to the Software or any services provided hereunder is hereby excluded , including, but not limited to, implied warranties or conditions of performance, merchantability, fitness for a particular purpose, accuracy, omissions, completeness, currency, delays, title, and non-infringement with regard to the services, including the provision of the Software, and the provision of or failure to provide Support Services.

(b)            Pursuant to s 64A of the Australian Consumer Law, this clause 17(b) applies in respect of any goods or services supplied under this agreement which are not of a kind ordinarily acquired for personal, domestic or household use or consumption, provided that this clause will not apply if the Company establishes that reliance on it would not be fair and reasonable. Liability for breach of a guarantee conferred by the Australian Consumer Law (other than those conferred by sections 51 to 53 of the Australian Consumer Law) is limited:

(i)             in the case of goods, to any one of the following as determined by the Qualie:

(A)           the replacement of the goods or the supply of equivalent goods;

(B)           the repair of the goods;

(C)           the payment of the cost of replacing the goods or of acquiring equivalent goods; or

(D)           the payment of the cost of having the goods repaired; and

(ii)            in the case of services, to any one of the following as determined by Qualie:

(A)           the supplying of the services again; or

(B)           the payment of the cost of having the services supplied again.

18            Liability

(a)            Qualie shall be under no liability to the Company in respect of any special, indirect, or consequential loss or damage which may be suffered or incurred or which may arise directly or indirectly in respect of goods or services supplied pursuant to this Agreement or in respect of a failure or omission on the part of Qualie to comply with its obligations under this Agreement.

(b)            To the full extent permitted by law, Qualie’s cumulative liability to the Company in respect of all claims made by the Company in connection with Qualie’s provision of Software under this Agreement, whether arising out of breach, negligence or any other tort, under statute or otherwise, will not exceed in aggregate the total amount paid to Qualie by the Company in connection with this Agreement in any one year. This limit also applies to any of the Company’s subcontractors, agents and employees. It is the maximum for which Qualie and its subcontractors and employees are collectively responsible.

(c)            Without limiting any other provision of this Agreement, the Company acknowledges that Qualie and the Software relies on hosting services provided by third parties.  Qualie shall use best efforts to ensure that it selects and engages reputable host service providers and to seek commitments from those host service providers to minimise the likelihood and duration of any downtime for the hosting service and hence access to and use of Software.  However, the parties acknowledge that Qualie will not be liable to the Company for any loss or damage occurring in the event that the hosting service on which the Software functions experiences disruptions or downtime.  Further, without limiting any other provision of this Agreement, the Company agrees and acknowledges that Qualie will not liable to the Company for any loss or damage occurring due to failure malfunction or inadequacy of any system, equipment, hardware or software (other than the Software) utilised by the Company utilised by the Company in connection with the operation of the Software.

(d)            The Company acknowledges that to the extent Qualie has made any representation which is not otherwise expressly stated in this Agreement, the Company has been provided with an opportunity to independently verify the accuracy of that representation.

(e)            The Company acknowledges that it may be liable to Qualie for any damages Qualie may suffer as a consequence of a breach of this Agreement, statute or law by the Company as well as statutory damages to the maximum extent permitted by law.

19            Termination

(a)            Without limiting the generality of any other clause in this Agreement, the Company may terminate this Agreement immediately by notice in writing to Qualie if:

(i)             Qualie is in breach of any term of this Agreement and such breach is not remedied within fourteen (14) days of notification by the Company; or

(ii)            Qualie is insolvent or becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of external administration.

(b)            Without limiting the generality of any other clause in this Agreement. Qualie may terminate this Agreement immediately by notice in writing if:

(i)             the Company is in breach of any term of this Agreement and such breach is not remedied within fourteen (14) days of notification by Qualie;

(ii)            the Company for any reason destroys or disposes of or loses custody of the Software;

(iii)           the Company is insolvent or becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of external administration;

(iv)           the Company, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving;

(v)            the Company, being a natural person, dies; or

(vi)           the Company ceases or threatens to cease conducting its business in the normal manner.

(c)            If this Agreement ends or is terminated for any reason (other than under 20(a)), Qualie may, in addition to terminating the Agreement:

(i)             repossess any copies of the Software in the possession, custody or control of the Company and otherwise terminate access to the Software;

(ii)            retain any moneys paid;

(iii)           charge a reasonable sum for work performed in respect of which work no sum has been previously charged;

(iv)           be regarded as discharged from any further obligations under this Agreement; and

(v)            pursue any additional or alternative remedies provided by law.

20            Force Majeure

(a)            Neither Party shall be liable for any delay or failure to perform its obligations pursuant to this Agreement if such delay is due to Force Majeure.

(b)            If a delay or failure of a Party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that Party’s obligations will be suspended.

(c)            If a delay or failure by a Party to perform its obligations due to Force Majeure exceeds sixty (60) days, either Party may immediately terminate the Agreement on providing notice in writing to the other Party.

(d)            If this Agreement is terminated pursuant to clause 20(c), Qualie shall refund moneys previously paid by the Company pursuant to this Agreement for goods or services not provided by Qualie to the Company.

(e)            This clause shall not affect any of the Company’s payment obligations under this Agreement.

21            Privacy

Each party shall comply with all the obligations it may have under the GDPR in relation to the handling, collection, storage, disclosure and provision of access to any “personal information” as defined under that legislation and each party hereby indemnifies the other in respect of any loss or damage arising out of any breach of this obligation.  

22            Entire Agreement

This Agreement constitutes the entire agreement between the Parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing.

23            Precedence

(a)            The documents comprising this Agreement shall be read in the following order of precedence:

(i)             the clauses of this Agreement;

(ii)            the Schedules.

(b)            Where any conflict occurs between the provisions contained in two or more of the documents forming this Agreement, the document lower in the order of precedence shall where possible be read down to resolve such conflict. If the conflict remains incapable of resolution by reading down, the conflicting provisions shall be severed from the document lower in the order of precedence without otherwise diminishing the enforceability of the remaining provisions of that document.

24            Assignment and Novation

(a)            The benefit of this Agreement shall not be assigned by the Company without Qualie’s written consent.

(b)            Qualie may consent to the assignment or novation of this Agreement by the Company subject to such conditions as it chooses to impose.

25            Waiver

(a)            No right under this Agreement shall be deemed to be waived except by notice in writing signed by each Party.

(b)            Any waiver made by Qualie pursuant to clause 26(a) will not prejudice its rights in respect of any subsequent breach of the Agreement by the Company.

(c)            Subject to clause 26(a), any failure by Qualie to enforce any clause of this Agreement, or any forbearance, delay or indulgence granted by Qualie to the Company, will not be construed as a waiver of Qualie’s rights under this Agreement.

26            Dispute Resolution

(a)            The procedure set out in this clause must be followed in relation to the resolution of a dispute concerning the interpretation of a term this Agreement or of the parties' rights or obligations pursuant to this Agreement ("Dispute").

(b)            Upon any Dispute arising, a party may give written notice to the other party that a Dispute exists ("Dispute Notice").

(c)            The Dispute Notice shall provide the recipient with the full particulars of the matters in Dispute.

(d)            The timetable and process for resolving a Dispute pursuant to a Dispute Notice is as follows:

(i)             within 5 working days of receipt of a Dispute Notice, the Parties shall hold discussions in good faith in an attempt to resolve the Dispute;

(ii)            if the Dispute is not resolved within 20 days of the commencement of the meeting referred to in the previous sub-clause or if the meeting referred to in the previous sub-clause has not taken place within the 5 day period, the parties to the Dispute shall refer the matter to mediation;

(iii)           within 5 working days following the expiry of the relevant period in the previous sub-clause, the parties to the Dispute must attempt to agree on the appointment of a mediator. In the absence of agreement on the appointment of a mediator, a mediator is to be appointed by the President for the time being of the LEADR Association of Dispute Resolvers, with the costs of the mediation to be borne equally by the parties to the Dispute;

(iv)           the parties to the Dispute shall use their best endeavours to ensure the mediation takes place within 30 days of a mediator being appointed; and

(v)            any mediation that takes place pursuant to the operation of this clause is to take place in Melbourne, Australia.

(e)            Except for the purpose of obtaining urgent interlocutory or declaratory relief from a court of competent jurisdiction, no party shall commence any proceedings in any court, tribunals or otherwise without first providing a Dispute Notice and complying with the dispute resolution process set out in this clause.

27            Qualie's Rights

Any express statement of a right of Qualie under this Agreement is without prejudice to any other right of Qualie expressly stated in this Agreement or existing at law.

28            Survival of Agreement

(a)            Subject to any provision to the contrary, this Agreement shall enure to the benefit of and be binding upon the Parties and their successors, trustees, permitted assigns or receivers, but shall not enure to the benefit of any other persons.

(b)            Subject to clause 15(c), the covenants, conditions and provisions of this Agreement which are capable of having effect after the expiration of the Agreement shall remain in full force and effect following the expiration of the Agreement.

29            Severability

If any provision of this Agreement is held invalid, unenforceable or illegal for any reason, the Agreement shall remain otherwise in full force apart from such provision which shall be deemed deleted.

30            Governing Law

This Agreement shall be governed in all respects by the laws of the State of Victoria, Australia.  The parties irrevocably submit to the non-exclusive jurisdiction of the courts of Victoria, Australia and to the Federal Court of Australia sitting in Victoria.

31            Notices

(a)            Notices under this Agreement may be delivered by hand, by mail, by facsimile or by email to the addresses specified in Schedule 1.

(b)            Notice will be deemed given:

(i)             in the case of hand delivery, upon written acknowledgment of receipt by an officer or other duly authorised employee, agent or representative of the receiving Party;

(ii)            in the case of posting, three (3) days after despatch;

(iii)           in the case of facsimile, upon receipt of transmission if received on a business day or otherwise at the commencement of the first business day following transmission;

(iv)           in the case of electronic communication, upon production of a correct and complete confirmation of delivery report by the information system from which the electronic communication was sent which indicates that the electronic communication has entered the information system of the recipient notified for the purposes of this clause 37 (but if the electronic communication has not entered the information system by 5:00pm on a business day, at 9:00am on the next following business day).

32            Execution

This Agreement may be executed in counterparts by the respective Parties, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement, provided that this Agreement shall be of no force and effect until the counterparts are exchanged.

Schedule 1

Service Levels

 

Level               Response time Resolution time

Severity 1         8 hours                         24 hours

Severity 2         12 hours                       2 business days

Severity 3         1 business day              8 business days

Severity 4         2 business days 14 business days

 

Severity level definitions

 

Severity level 1: Critical

•           Production issue affecting all users

•           System unavailability

•           Data integrity issues

 

Severity level 2: Urgent

•           Persistent issue affecting many users

•           Major functionality is impacted

•           Significant performance degradation

 

Severity level 3: High

•           System performance issue or bug affecting some but not all users

 

Severity level 4: Medium

•           Inquiries about routine technical issues

•           Information requests on capabilities, navigation, installation or configuration

 

 Last updated: 21 January 2020