Terms of ServiceThis is an agreement between the customer named and described in the Schedule (Customer) as the end user of the Software and Saleslifecycle.com ABN 27 678 389 316 (SLC).
A. SLC owns the Software and has rights to the Website.
B. Customer wishes to a acquire a licence to access the Website and use the Software, and SLC is willing to grant a licence on the terms and conditions of this Agreement.
C. The Customer also requires, and SLC has agreed to provide, hosting services for the website, on the terms and conditions of this Agreement.
1. DEFINITIONS AND INTERPRETATION
In this Agreement:
1.1 Agreement means this agreement and includes the Schedule;
1.2 Client Content means any data or information provided by the Client and uploaded into the Software;
1.3 Commencement Date means the date of this Agreement;
1.4 Documentation means any operating manuals or printed materials provided from time to time by SLC to the Customer and which relate to the Software;
1.5 Hosting Services means the hosting services described in clause 11;
1.6 Improvements means all improvements, developments, variations or modifications to the Software or the Documentation.
1.7 Intellectual Property Rights or IPRs includes all copyright, trade marks, designs, patents, semiconductor or circuit layouts, trade secrets, know-how and the right to have confidential information kept confidential and includes rights to register any of the foregoing;
1.8 Access Fee means the annual access fee(s) referred to in the Schedule;
1.9 Schedule means the schedule to this Agreement;
1.10 Software means the object code version of the software described in the Schedule and includes any improvements, enhancements, modifications or developments of that software (including any new releases and new versions) licensed by the SLC to the Customer under this Agreement;
1.11 Support Services means:
(a) the provision of technical support via any method deemed reasonable by SLC during ordinary business hours to address any defects, faults or errors in relation to the Software; and
(b) patches and minor releases of the Software as soon as practicable after they become available; and
1.12 Website means the website developed by SLC, as described in the Schedule.
2.1 Subject to the payment of the Access Fee and the terms of this Agreement, SLC grants to the Customer and the Customer accepts a non-exclusive, non-transferable licence (Licence) to, for its internal business purposes:
(a) access the Website;
(b) use the Software; and
(c) use the Documentation and all accompanying materials, as required in connection with the Software,
3. FEES & PAYMENT
3.1 The Customer agrees to pay SLC the Access Fee within 7 days of the Commencement Date.
3.2 Unless otherwise specified in the Schedule, the Access Fee is thereafter payable annually 30 days prior to the date of commencement of any Renewal Term.
3.3 The Access Fee payable in respect of any Renewal Term may, at SLC's discretion, be varied from the amount specified in the Schedule to an amount no greater than SLC's then access licence fee for the supply of similar services.
3.4 Payment of the Access Fee is to be made by the Customer by direct-debit or in such other form as SLC may reasonably direct.
3.5 Customer will pay interest at 3% per annum above the then current overdraft rate charged by SLC's usual bankers on the daily balance on all monies not paid by the due date specified in the applicable invoice issued to the Customer by SLC.
4. USER NAMES AND PASSWORDS
4.1 On payment of the Access Fee, SLC will provide the Customer with all necessary user accounts (including user names) for the Customer to access the Website.
4.2 The Customer must keep, and must ensure each of its authorised users keeps, all user accounts names and passwords secret and secure at all times.
5. LICENCE RESTRICTIONS
5.1 The Customer must:
(a) only permit individuals who have been approved as the Customer's authorised users to access the Website and use the Software and Documentation; and
(b) comply with all reasonable directions issued by SLC regarding use of the Software.
5.2 Customer must not, and must ensure that each person whom has been approved as the Customer's authorised user does not, without SLC's prior written consent:
(a) alter, adapt or modify the Software;
(b) copy the Software;
(c) alter, modify, tamper with, decompile, disassemble, reverse engineer or attempt to reverse engineer the Software or otherwise attempt to derive the Software source code from the object code, except to the extent permitted by applicable law;
(d) sub-license, assign or otherwise transfer the Software to any person, or attempt to do any of those things;
(e) demonstrate the Software or its capabilities to any person without SLC's written consent; or
(f) remove any copyright, patent, trade mark or confidential information notices, logos or other marks from the Software, the Documentation or the Software packaging.
5.3 Licences for 'Free' Single user account shall be restricted to one per person.
5.4 Users agree to the terms of the Email policy.
5.5 'Free' Licences may be cancelled due to inactivity. If the account is inactive over a period of 60 days SLC reserves the right to cancel the account at its discretion. If the account shows no evidence of activity (no company data imported) no notice shall be provided to the account holder.
6.1 On request by SLC, the Customer must:
(a) confirm in writing to SLC that the Software is being used in accordance with this Agreement; and
(b) allow SLC access to the Customer's records and systems to verify its compliance with praragraph (a) and clause 5.2.
7. EXCLUSION OF WARRANTIES
7.1 The Customer acknowledges that:
(a) the Website, Software and Documentation is provided on an as-is basis;
(b) SLC cannot and does not guarantee that access to the Website will be uninterrupted or that the Software will operate error-free; and
(c) STF has implemented reasonable security measures in relation to the Website and Software, however SLC is in no way responsible for any unauthorised access to the Website or Software, or any disclosure, loss or corruption of data contained on the Website.
8.1 Amounts payable by the Customer to SLC for, or in connection with, any Taxable Supply under this Agreement do not include any GST.
8.2 The Customer must pay SLC an additional amount on account of GST equal to the amounts payable by the Customer under this Agreement for the Taxable Supply multiplied by the prevailing GST rate.
8.3 The additional amount is payable at the same time as the amount for the Taxable Supply is payable by the Customer to SLC.
8.4 SLC will provide the Customer with tax invoices which are in an approved form for GST purposes.
8.5 For the purposes of this Agreement "Taxable Supply" has the same meaning as it does in section 9-5 of the A Tax System (Goods & Services Tax) Act 1999.
9. ADDITIONAL CHARGES
9.1 The Customer must pay any additional fees or charges invoiced by SLC at SLC's then current rate for:
(a) the preparation, installation or supply of any special or additional hardware or software required by the Customer for the purposes of accessing the Website or using the Software;
(b) any training requested by the Customer and not specified in the Schedule;
(c) support for any hardware or software other than support provided for the Software under clause 10;
(d) the customisation of the Software, where such customisation is authorised in writing by SLC;
(e) any services provided by SLC (including Support Services) provided by SLC at the Customer's request following operator error by persons other than SLC;
(f) the cancellation of an appointment for the provision of any Support Services or other services by SLC where more than 24 hours notice of the cancellation has not been provided;
(g) updating or upgrading Software, except to the extent that such update or upgrade forms part of any Support Services; and
(h) any development, support or consultancy services which are provided by SLC to the Customer.
10. SOFTWARE SUPPORT
10.1 Unless otherwise specified in the Schedule, SLC shall provide the Support Services during the term of this Agreement.
10.2 The provision of the Support Services is subject to the Customer's compliance in full with the terms of this Agreement, including without limitation the payment obligations contained in clause 3.
10.3 Except as otherwise specified in this Agreement, SLC shall not be obliged to support the Software, whether by providing advice, training, error-correction, modifications, updates, new releases, enhancements or otherwise.
11. PROVISION OF HOSTING SERVICES
11.1 SLC agrees to host all Client Data submitted by the Customer via the Website during the Term, as and from the Commencement Date (Hosting Services).
11.2 The Customer agrees to use, and ensure that each of its authorised users use, the Hosting Services in accordance with this agreement, including without limitation in accordance with any policy issued from SLC from time to time.
11.3 SLC may immediately suspend the Hosting Services by written notice to the Customer if the Customer or any of its authorised users fail to use the Hosting Services in accordance with this Agreement. The Hosting Services will be suspended until the Customer provides evidence satisfactory to SLC, in its discretion, that any failure to use the Hosting Services in accordance with this Agreement has been remedied.
11.4 SLC may, in its absolute discretion, sub-contract the provision of the Hosting Services, and the Customer must comply with such acceptable use policies or other requirements as those sub-contractors may require in connection with the provision of Client Data.
12. EXCLUSION OF WARRANTIES FOR HOSTING SERVICES
12.1 The Customer acknowledges that:
(a) the Hosting Services are provided on an 'as-is' basis and SLC cannot and does not guarantee that the provision of Hosting Services to the Customer or its authorised users will be uninterrupted or error free;
(b) the Hosting Services may be provided by a third party hosting service under contract to SLC, and the Customer agrees to comply with any applicable policies or requirements of any such third party host;
(c) SLC may need to perform scheduled and unscheduled maintenance from time to time, which may result in interruptions to the Hosting Services;
(d) SLC is not responsible for any loss, damage, cost or expense arising from the Customer's use of the Hosting Services or the Customer's inability to use the Hosting Services for any reason;
(e) without in any way limiting the generality of paragraph (c), SLC is not liable for any delay, fault, failure, interruption or service difficulty caused by any third party goods or services, or any defects or faults in the hardware, software or other computer systems of the Customer or its authorised users (including any telecommunications failure or faults or defective networks or Internet connections);
(f) SLC does not screen the information, data or reports contained on the Website and is not responsible for that content in any way;
(g) it is the responsibility of the Customer to ensure that the content on the Website is correct and suitable for its intended purpose;
(h) use of information obtained by way of Hosting Services is at Customer's own risk, and SLC excludes all liability in relation to such use;
(i) it must ensure all personal information contained on the Website is collected, stored and handled in accordance with the Privacy Act 1988 (Cth); and
(j) SLC does not guarantee and is not liable for the privacy of electronic mail or other information transferred over the Internet of any other network SLC or the Customer may utilise.
13. OBLIGATIONS OF CUSTOMER FOR HOSTING SERVICES
13.1 The Customer:
(a) will provide SLC with its up to date contact details for billing and technical notification purposes;
(b) will not sell or grant access to SLC's servers or the Hosting Services without the express prior written consent of SLC; and
(c) will provide at its own costs all telephone, computer, hardware and software, equipment and services necessary to access the Hosting Services. SLC makes no representations, warranties, or assurances that Customer's equipment will be compatible with the Hosting Services.
13.2 The Customer acknowledges and agrees that:
(a) Client Data is backed up daily and back up data retained for 7 days; and
(b) if the Customer wishes for SLC to perform additional backups or store backed up data for longer than 7 days, then this request will be charged at SLC's then prevailing commercial rate for backup services.
13.3 SLC is not liable for any incomplete, out of date, corrupt or otherwise deficient data recovered from backups. The Customer acknowledges and agrees that:
(a) it is responsible for maintaining a record of all information uploaded to the Website; and
(b) in the event of corruption of SLC's archives, it may be required to re-enter its data to the Website.
14.1 The Customer shall not modify or alter the Software or merge all or any part of the Software with any other software without SLC's prior written consent.
14.2 If the Software is modified or altered by SLC at the Customer's request, or by the Customer with the permission of SLC pursuant to clause 14.1:
(a) the costs associated with the modifications or alterations or the costs arising out of the investigation of the effects of proposed modifications or alterations will be borne solely by the Customer; and
(b) the Customer will fully indemnify SLC against all liability which may be incurred by SLC if such modifications or alterations infringe any Intellectual Property Rights of a third person or otherwise cause SLC to suffer loss, damages or expense.
14.3 The Software as modified or altered remains the property of SLC in all respects, whether modified by the Customer, SLC or a third party and whether or not authorised pursuant to this Agreement.
15. INTELLECTUAL PROPERTY RIGHTS
15.1 All IPRs in the Software, the Documentation and the Website (excluding any data or information contained on the Website) are the property of SLC, and the Customer acknowledges that this agreement does not transfer to the Customer any IPRs in the Software or the Documentation.
15.2 If the Customer requires any Improvements, it must advise SLC and if SLC agrees to provide the Improvements, it will provide them to the Customer on terms to be agreed between the parties.
15.3 The parties acknowledge and agree that all Improvements will be owned by SLC.
15.4 The Customer assigns to SLC all IPRs that the Customer may have in Improvements both at Commencement Date and in the future.
15.5 The Customer:
(a) acknowledges that no additional documentation is necessary to complete the assignment referred to in clause 15.4, and that by virtue of clause 15.4, all IPRs in any Improvements will automatically vest in SLC on their creation;
(b) must upon request by SLC, take all action and sign any documentation reasonably requested by SLC to enable SLC to further assure its rights, title and interest in the Improvements; and
(c) will ensure Improvements are identified and promptly notified to SLC.
15.6 The Customer must:
(a) keep SLC fully informed of all suspected or actual infringements by any person of the IPRs in the Software or the Documentation; and
(b) provide assistance reasonably requested by SLC relating to proceedings that SLC may take against any person for infringement of any of its IPRs.
15.7 The parties acknowledge that all IPR in the data and information contained on the Website are owned by the Customer.
15.8 The Customer grants to SLC, with effect from the Commencement Date, a non-exclusive, perpetual, non-transferable, royalty-free licence to use the Client Content that is uploaded to the Software in a de-identified form for benchmarking and statistical purposes.
16. USE OF CUSTOMER INFORMATION
16.1 The Customer grants to SLC a perpetual, royalty free, non-exclusive licence to use any data, information or material collected by the Customer while using the Software and stored on the servers of, or at the premises of, SLC (Information), to enable SLC to use the Information for its own internal purposes, including, but not limited to, the testing and improvement of the Software.
16.2 SLC agrees that the Information used in accordance with the licence granted to it under clause 16.1 will be electronically desensitized prior to use by SLC so that no Personal Information, as defined in the Privacy Act 1988, will be included with any Information used by SLC under this clause 16.2.
17. LIABILITY AND INDEMNITIES
17.1 SLC makes no warranty in relation to the Software, including that it be free from error or defect. If the Software does not meet the requirements of the Customer, the Customer is free to choose not to use it, and to the extent permissible by law, this is the Customer's sole remedy.
17.2 SLC makes no warranty that any Support Services provided under this agreement will fix any defect, fault or error that may be notified to SLC by the Customer.
17.3 Subject to clause 17.4, any condition or warranty not expressly included in this agreement and which would otherwise be implied in this agreement is excluded.
17.4 SLC limits its liability for breach of any condition or warranty that it cannot exclude to the greater of (at the option of SLC):
(a) in the case of goods, repairing or replacing those goods or paying the cost of having those goods repaired or replaced; and
(b) in the case of services, resupplying the services or paying the cost of having the services resupplied.
17.5 To the full extent permitted by law:
(a) except as is otherwise expressly provided for by the terms of this agreement, SLC will not, under any circumstance, be liable in any way to Customer, or any other person, for any form of loss, damage or expense sustained or incurred, in relation to or as a result of breach of this agreement, as a result (directly or indirectly) of the supply of the Software, the Documentation, the Hosting Services or Support Services by SLC or the use or performance thereof, or for any other act, omission or default (including negligence);
(b) SLC excludes all liability to the Customer, or any other person for any loss of revenue, profits, use, interest, business or goodwill, loss or inaccuracy of any data, loss of or inability to use Software, the Website the Documentation, the Hosting Services or Support Services, or for any consequential, indirect, incidental or punitive loss or damages, however arising, including from a breach of a contract, tort (including negligence) or under statute; and
(c) SLC limits its total liability to the Customer, or any other person for all other loss or damage arising out of or in connection with this agreement (whether that liability arises in contract, tort (including negligence) or under statute) to the amount of fees paid by the Customer for the 12 months prior to the claim.
17.6 The Customer indemnifies SLC against the full amount of all expenses, losses, damages and costs (on a solicitor and own client basis and whether incurred by or awarded against SLC) that SLC may sustain or incur as a direct result of any:
(a) breach of this agreement by the Customer;
(b) content contained on the Website;
(c) use of the Hosting Services by the Customer or any of its authorised user;
(d) negligent, unlawful, reckless or wilful act or omission of Customer;
(e) action or claim by any third party arising from paragraph (a), (b), (c) or (d).
18. CONFIDENTIAL INFORMATION
18.1 The Customer shall not, without the prior written approval of SLC, disclose any of the Confidential Information.
18.2 The Customer shall not be in breach of Clause 18.1 in circumstances where it is legally compelled to disclose the Confidential Information.
18.3 The Customer shall take all reasonable steps to ensure that its employees, agents and sub-contractors do not make public or disclose the Confidential Information.
18.4 For the purposes of this Agreement Confidential Information means any information which is disclosed to the Customer by SLC pursuant to or in connection with this Agreement (whether orally, or in writing, and whether or not such information is expressly stated to be confidential or marked as such) and includes information relating to the design, specification and content of the Software, the personnel, policies or business strategies of SLC and the terms upon which the Software is being supplied and supported pursuant to this Agreement.
19.1 Without prejudice to any other rights SLC may have under this Agreement or at law, SLC may terminate this Agreement immediately by notice in writing if:
(a) the Customer for any reason destroys or disposes of or loses custody of the Software;
(b) the Customer is in breach of any term of this Agreement or any other agreement between SLC and the Customer and such breach is not remedied within fourteen (14) days of notification by SLC;
(c) the Customer becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration; or
(d) the Customer ceases or threatens to cease conducting its business in the manner in which it was conducting its business on the Commencement Date.
19.2 If this agreement expires or is terminated in accordance with clause 19.1:
(a) the Customer must immediately pay to SLC any amounts due to SLC under this Agreement as at the date of Termination.
(b) the Customer's licence to access the Website and use the Software and Documentation will immediately cease and SLC may immediately take such steps as may be necessary to suspend the Customer's access to the Website and Software; and
(c) the Customer must immediately cease accessing the Website and using the Software and the Documentation and any Confidential Information of SLC and, at SLC's option, return to SLC or destroy and certify in writing to SLC the destruction of all SLC Confidential Information in the Customer's possession or control.
20.1 This Agreement constitutes the entire agreement between the Parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing.
20.2 This Agreement is personal to Customer and may not be assigned by Customer.
20.3 SLC may assign this Agreement to a third party at SLC's sole discretion.
20.4 No right under this Agreement shall be deemed to be waived except by notice in writing signed by the Party waiving the right.
20.5 A waiver made by SLC under clause 20.4 will not prejudice its rights in respect of any subsequent breach of the Agreement by the Customer.
20.6 Subject to clause 20.4, any failure by SLC to enforce any clause of this Agreement or any delay or indulgent granted by SLC to the Customer will not be construed as a waiver of SLC's rights under this Agreement.
20.7 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 provisions which shall be deemed deleted.
20.8 Each Party will act as an independent contractor and not as an agent for the other Party, and neither Party will have the authority to bind or contract in the name of, nor to create any liability against, the other Party.
20.9 This Agreement is governed by the laws of South Australia and the Parties hereby submit to the non-exclusive jurisdiction of the Courts of South Australia.
20.10 No party is liable for any failure to perform or delay in performing its obligations under this Agreement if that failure or delay is due to anything beyond that party's reasonable control. If that failure or delay exceeds 60 days, any party may terminate this Agreement with immediate effect by giving notice to the other party. This clause does not apply to any obligation to pay money.
20.11 The following clauses will survive expiry or termination of this agreement: clause 15 (Intellectual Property Rights), clause 17 (Liability and indemnities), clause 18 (Confidential information), clause 19.2 (Consequences of termination) and clause 20.9 (Governing law).
Last Updated on 2013/01/30