Terms & Conditions

CONFIDENTIALITY OBLIGATIONS

1.1 The Contractor’s obligations in favour of Company

(a) The Contractor (Cruse Partnership Australia) will keep all Confidential Information in strict confidence and will not disclose Confidential Information or any part of it to any other person or make any record or copy of it unless directed or permitted by Company in writing to do so.

(b) Without limiting its obligations under clause 2.1(a), the Contractor will:

  1. keep all documents containing Confidential Information in a secure place; 
  2. restrict access to documents containing Confidential Information except to those persons who have signed a confidentiality agreement with Company or have been authorised to receive Confidential Information in accordance with this Agreement; and 
  3. clearly mark all documents containing Confidential Information as being confidential.

(c) On demand by Company, the Contractor will, at Company’s option, either:

  1. return all Confidential Information to Company; or
  2. destroy the Confidential Information, including any other document or thing to the extent that it reproduces Confidential Information.

 

1.2 Exceptions to confidentiality obligations

The obligations in clause 2.1 do not apply where:

(d) The Contractor is required by law to disclose any Confidential Information, promptly gives notice to Company of that requirement and discloses only that portion of Confidential Information which it is legally required to disclose; or

(e) disclosure of Confidential Information is required to comply with a mandatory requirement of a regulatory or government agency (including any relevant stock exchange) and the Contractor promptly gives notice to and consults with Company and uses its best endeavours to ensure that any Confidential Information so disclosed will be treated confidentially.

(f) the Confidential Information becomes available in the public domain other than as a result of the Contractor’s breach of its obligations under this Agreement. 

1.3 Precautions

(a) The Contractor is permitted to disclose the Confidential Information to its employees, officers, directors and advisors who the Contractor needs them to know the information, provided those individuals agree to keep the Confidential Information confidential and not to use it for any other purpose than that which it is disclosed to them by the Contractor. 

(b) The Contractor will take all reasonable precautions to prevent its employees, officers, directors and Contractors, or any other person who otherwise needs to know and is permitted by this Agreement to know Confidential Information and who is given access to or receives any Confidential Information from using for themselves or for others, or from passing on to others, any Confidential Information.

1.4 Property in Confidential Information

Confidential information will remain the property of Company, its Related Bodies Corporate and contractors (as the case may be) at all times.  Nothing in this Agreement will be treated as granting to the Contractor any licence or any other right in, to or in respect of any Confidential Information.

 

LIABILITY

2.1 Liability and Warranties

(a) Whilst the Contractor will take all reasonable steps to protect the Company data and to ensure that it provides the Services in a professional and competent manner it is an essential pre-condition for Company to access the Software pursuant to this Agreement that it agrees and accepts that the Contractor is not legally responsible for any loss or damage Company might suffer related to its use of the Software, whether from errors or from omissions in the Contractor’s information, loss of data, inability to access data or from any other use of the Software.

(b) Despite anything else in this Agreement, neither party shall be responsible to the other party for any special or consequential or economic loss in connection with this Agreement.

(c) Use of the Software is at Company’s own risk. To the fullest extent permitted by law the Contractor shall not be responsible for any special or consequential or economic loss that results from use of the Software by Company or the inability to access information from the Licensed Application.

(d) Except to the extent that the law does not permit the Contractor to exclude itself from all liability in relation to any loss suffered by Company in the provision of the Services pursuant to this Agreement then the Contractor’s liability during each subscription period is agreed as being limited to a sum equivalent to two times of the Software Subscription made by the Contractor to Company pursuant to this Agreement for that subscription period.

(e) Notwithstanding anything else in this Agreement Company acknowledges that it is responsible for ensuring that its computer system meets all relevant technical specifications necessary to use the Software and that it is compatible with the Licensed Application.

SCOPE OF SERVICES

The purpose of this Agreement is to grant the Company a licence to access and use the Software and to access the associated Services that are contained in Annexure A, using a Software as a Service delivery model.

4. LICENSING OF SOFTWARE AND PAYMENT OF SOFTWARE SUBSCRIPTION AND OTHER FEES

4.1 The Contractor grants Company a nonexclusive, non-transferable license to:

(a) use the Licensed Application; and

(b) use the documentation supplied with the Licensed Application.
The license and this Agreement continues for as long as the Company pays the agreed Software Subscription and complies with the terms of this Agreement and this Agreement is not otherwise terminated in accordance with clause 10.

4.2 Company must not:

(a) alter or remove a copyright statement or other notice of ownership of intellectual property rights which accompanies the Licensed Application;

(b) assign, sublicense, sell, transfer, resell or trade its License, or otherwise make the Software available to any third party, or permit the use of the Software by any person other than as permitted under this Agreement; or

(c) modify, translate, disassemble, reverse engineer or decompile any Software or create a derivative work based on the Software or related documentation.

4.3 The license granted to Company under this clause remains in force until this Agreement expires or terminates for any reason.

4.4 Prior to the commencement of each year in which the Company subscribes to a license to use the Licensed Application the Contractor shall send to the Company a tax invoice for the payment of the Software Subscription Fee. The Company shall pay the Contractor’s tax invoice within 30 days of receipt. The Contractor may also send tax invoices for any training customisation and related costs as an when appropriate.

4.5 The amount of the Software Subscription is adjusted at the commencement of the second 12 month subscription period and annually thereafter based on the Australian Government published CPI.

 

5. ACCEPTANCE

5.1 Company will be deemed to have accepted the Software when Company signs and executes this Agreement. Company shall conduct all reviews, testing and investigation of the Software that it deems necessary prior to executing this Agreement in order to be satisfied that the Software is suitable.


6. COMPANY OBLIGATIONS

6.1 Company will provide the Contractor with such information as the Contractor reasonably requires from Company in order to provide the Services, provided that the Contractor gives Company a reasonable time to respond to requests from the Contractor. The Company acknowledges that the Contractor may be prevented or delayed from providing the Services to the Company until such time as it receives the requested information from the Company.

 

7.0 WARRANTIES

7.1 The Contractor warrants that:

(a) it will provide the Services in a proper, workmanlike and professional manner;
(b) at all times its conduct will not bring discredit to Company or cause any nuisance or disruption to Company;
(c) it possesses and will deploy the skills and experience necessary to provide the Services;
(d) it will comply with all applicable laws, regulations and license requirements; and
(e) the Software and the documentation will not breach the Intellectual Property Rights of any person.



8. INTELLECTUAL PROPERTY RIGHTS

8.1 The Software shall at all times remain the property of the Contractor. However, the Contractor acknowledges that all data that Company inputs via the Software will be the property of Company.

 

9. TERMINATION


9.1 Company may, by notice in writing to the Contractor, terminate the Agreement:


(a) with three months written notice for any reason, or

(b) immediately or at any other time if the Contractor:

  1. has a provisional liquidator appointed or has a controller, receiver, receiver and manager, administrator or manager of any of its assets appointed; or
  2. becomes an externally administered body corporate; or
  3. passes or attempts to pass a resolution for winding up; or
  4. enters into or attempts to enter into any composition or scheme of arrangement; or

(c) immediately or at any other time if the Contractor acting in the discharge of its duties is guilty of any fraudulent act or willful misconduct which is directly related to this Agreement; or

(d) If the Contractor breaches any term of this Agreement and such breach continues for a period of 28 days after Company has requested the Contractor to rectify the breach.


9.2 The Contractor may, by notice in writing to Company, terminate the Agreement:

(a) immediately or at any other time if Company:

  1. has a provisional liquidator appointed or has a controller, receiver, receiver and manager, administrator or manager of any of its assets appointed; or
  2. becomes an externally administered body corporate; or
  3. passes or attempts to pass a resolution for winding up; or
  4. enters into or attempts to enter into any composition or scheme of arrangement; or

(b) immediately or at any other time if Company acting in the discharge of its duties is guilty of any fraudulent act or willful misconduct which is directly related to the Agreement; or

(c) immediately if there is a failure to pay any installment of the Software Subscription which is properly due and payable by the due date for payment and such default continues for a period of 7 days after the Contractor has requested payment in writing to Company.

(d) if the Company breaches any term of this Agreement and such breach continues for a period of 28 days after the Contractor has requested the Company to rectify the breach.

9.3 If the Agreement is terminated under Conditions 10.1 or 10.2:

(a) Company shall pay to the Contractor any part of the Software Subscription which has accrued prior to the termination but has not been paid; and

(b) termination is without prejudice to any rights which may have accrued to either the Contractor or Company prior to the date of termination.

9.4 In the event of any termination of the Agreement, the Contractor shall provide to the Company, upon request from the Company, a copy of data held in the Software at the time of the termination. The data shall be in native database format (able to be interpreted by a suitably skilled professional using commercially available software tools).