1.1. Formation of Contract. Each time you and a third-party channel partner approved by us (Channel Partner) execute an Order Form approved by us that is expressly governed by these Smart-UI Terms of Trade, you will be deemed to have entered into a contract with us under which you agree to procure the Smart-UI Products and/or Services specified in the Order Form from us (each, an Agreement). Each Agreement will consist of this document and any Statement of Work annexed to an Order Form or otherwise agreed in writing between the parties.
2.1. The relationship between you and us pursuant to this Agreement is non- exclusive. Nothing in this Agreement will prevent us from supplying any goods or services to any third party in our absolute discretion.
3.1. In the event that any two of the following documents are inconsistent, they will be interpreted in the following order of precedence (highest to lowest):
(a) the terms set out in these Smart UI Terms of Trade (not including terms set out in any attachments, schedules or annexures);
(b) the terms of any applicable Statement of Work;
(c) any other terms set out in any attachments, schedules or annexures to a Statement of Work.
4. Project Management
4.1. This Agreement will be managed by an appointed Project Manager from each party as set out in the SOW and:
(a) your appointed project manager (Client Project Manager) shall act as a liaison between you and us, on your behalf, with respect to the overall administration of this Agreement. You must ensure that the Client Project Manager coordinates your resources and any relevant Personnel for the purposes of each Statement of Work; and
(b) our appointed project manager (Smart-UI Project Manager) shall act as a liaison between you and us, on our behalf, with respect to the overall administration of this Agreement. We will ensure that the Smart-UI Project Manager coordinates our resources and any relevant for the purposes of each Statement of Work.
4.2. You shall provide us with:
(a) all necessary cooperation, permissions, authorisations, assistance and consents in relation to this Agreement; and
(b) all necessary access to such information, Personnel, facilities, documentation, records, equipment, resources, records, systems and premises as may be reasonably required by us in order to perform our obligations under this Agreement or to comply with Applicable Law.
4.3. You must ensure that you and your Personnel (including each Authorised End User) complies with all Applicable Laws in the course of performing your obligations and exercising your rights under this Agreement and obtain and maintain all relevant licences, consents, and permissions.
4.4. We shall not be liable for any non-performance of our obligations under this Agreement caused by you or your Personnel (including any Authorised End User).
4.5. If we are delayed or prevented from complying with an obligation under this Agreement due to any of your acts or omissions, or those of your Personnel (including any Authorised End User), our obligations will be postponed or relieved accordingly to the extent affected by those acts or omissions and you agree that such period of postponement may be non-linear.
4.6. You are solely responsible for the payment of your Personnel, including all fees, expenses and employee benefits to, by or on behalf of any of your Personnel and, if applicable, the withholding of income taxes and other applicable taxes. You must ensure that no person who has been convicted of any crime involving, in any way, theft, fraud, bribery or the violation of the Crimes Act 1900 (NSW) or any similar Applicable Law uses our Services or accesses our Confidential Information. You are solely responsible for conducting all background checks necessary to comply with the foregoing.
4.7. We may subcontract all or any of our obligations under this Agreement to any third party or third parties at any time or from time to time, in the course of providing the Services to you.
5. Statements of Work
5.1. We will provide the Services as set out in the relevant Statement of Works with all reasonable skill and care.
5.2. We are not obliged to provide Smart-UI Products and/or Services under this Agreement other than those Smart UI Products and/or Services specified in a Statement of Work that has been executed by you and us in respect of such additional Smart-UI Products and Services. If you wish to obtain any Smart-UI Products and/or Services from us, we will prepare a draft Statement of Work for those products and services.
5.3. When a draft Statement of Work has been agreed between you and us, you and we will execute the Statement of Work and the Statement of Work will be governed by and form part of this Agreement.
6.2. If either party issues a Change Request, we will provide you with a written estimate (Change Proposal) of:
(a) the likely time required to implement the changes;
(b) any variations to the Smart-UI Products and Services arising from the changes;
(c) any expenses associated with us complying with the change control process; and
(d) any other impact of the changes on the terms of this Agreement.
6.3. You and we each have no obligation to proceed with any Change Proposal until and unless both parties have agreed in writing to the Change Proposal by executing the Change Proposal. In the absence of our acceptance of a Change Proposal, the parties shall continue to perform each of their respective obligations under this Agreement.
bank account nominated in our tax invoices in accordance with the payment terms set out in the Order Form.
7.2. The Fees are exclusive of GST and all other taxes, duties and customs and you agree to pay to us all freight, shipping charges, taxes, duties and customs, including GST that we incur in connection with this Agreement. You must pay us all applicable taxes, freight, shipping charges, taxes, duties and customs, including GST, at the same time as the Fees.
8.1. Your Project Manager and our Project Manager shall meet from time to time at the frequency specified in the Order Form or as set out in a Statement of Work to monitor and review the performance of this Agreement. These meetings shall be minuted by our Project Manager and copies of those minutes will be circulated to your Project Manager.
8.2. Before each meeting, your Project Manager must notify our Project Manager, and vice versa, of any issues relating to this Agreement that they wish to discuss at the meeting. At each such meeting, the parties shall agree a plan to address such issues. Progress in implementing any agreed resolution will be included in the agenda for the next meeting.
9. Implementation Services
9.1. If a Statement of Work specifies that we will provide Implementation Services, we will develop an implementation workplan (Implementation Workplan) for the setup, configuration and implementation of the Smart-UI Products specified in the Statement of Work (Implementation Services). The Implementation Workplan shall establish the time frames for performing the Implementation Services that each party will use its best endeavors to comply with. The Implementation Workplan shall include the following information, as applicable:
(a) identification of all milestone events and interdependent milestone events;
(b) identification of critical path milestones and the commencement and completion dates for such critical path milestones;
(c) a detailed description of all activities to be performed by you, and a detailed description of all activities to be performed by us, with respect to the implementation, and the party responsible for, and the location for performance of, such activities;
(d) identification of all interdependent activities; and
(e) commencement and completion dates for the setup, configuration and implementation of the Smart-UI Products.
9.2. Where Cloud Hosting is specified as being provided in a Statement of Work, we will monitor the implementation activities performed by any of our third-party hosting suppliers set out in the Implementation Workplan by:
(a) monitoring each third-party hosting supplier’s performance of its
implementation activities; and
(b) notifying you of any third-party supplier's failure to perform its duties and obligations with respect to the implementation of the hosting environment as soon as reasonably practicable.
9.3. We will be entitled to an extension of time for completion of any one or more of the stages of the Implementation Workplan if one or more of the following events occur:
(a) a Force Majeure Event occurs; or
(b) a delay is caused in whole or in part by any third-party supplier’s acts or omissions or your acts or omissions or any acts or omissions of your agents or third-party contractors.
9.4. Each party will ensure that its Project Manager is fully acquainted with the Implementation Workplan.
our obligations under this Agreement. You must provide us with all relevant access to such Hosting Location
9.7. Upon completion of the Implementation Services, we will test the relevant Smart-UI Products and Services deployed under the Implementation Workplan in accordance with the testing procedures set out in the Implementation Workplan (Acceptance Tests) in order to determine and verify that they meet the Specifications in all material respects. We will submit to you a copy of all test results and you will be deemed to have accepted the Implementation Services and the relevant Smart-UI Products and Services upon the relevant Smart-UI Products and Services having successfully passed the Acceptance Tests. You shall not use Smart-UI Products or Services in a live environment until and unless they have successfully passed the Acceptance Tests.
9.8. If any of the relevant Smart-UI Products fail to pass the Acceptance Tests in accordance with the Implementation Workplan, and we can demonstrate that the reason for the failure or non-compliance with the Implementation Workplan was caused by an issue or defect in your materials or an issue, incompatibility or defect in or with your technical environment, network or systems, then:
9.9. If any Smart-UI Product fails to pass the Acceptance Tests in accordance with the Implementation Workplan due to our breach of the Implementation Workplan, we will promptly rectify the failure.
10. Training Services
10.1. If a Statement of Work specifies that we will provide Training Services, unless as otherwise agreed between the parties, we will provide the allocated number of days of training set out in the Statement of Work in the use of the Smart-UI Products, to be attended by up to an agreed number of employees, at our premises in Sydney, Australia or at such other location as we may agree in writing with you.
10.2. The starting date of the training will be determined by you and us.
10.3. Where required by us, each trainee shall execute a confidentiality undertaking, in a form approved by us before attending the training.
11. Smart-UI Products – On Premise Hosting Option
11.1. If On-Premise Hosting is specified in a Statement of Work with respect to any Smart-UI Products, subject to your compliance with this Agreement:
(a) we shall be deemed to have granted you a non-exclusive, non- sublicensable, non-transferable licence to host one Object Code copy of the applicable Smart-UI Products on one computer server (On-Premise Server) during the Term at the Hosting Location for the Permitted Purpose for use by your Authorised End Users only (Hosting Licence);
(b) we will, where required by the Implementation Services, install that Object Code copy of the Smart-UI Products on the On-Premise Server;
(c) you must not use or permit any person to use the Smart-UI Products except for the Permitted Purpose pursuant to the Hosting Licence;
(d) you must not install or permit the Smart-UI Products to be installed on any computer server other than the On-Premise Server at the Hosting Location without our prior written consent;
(e) we are not responsible for the security or maintenance of the On- Premise Server;
(f) we are not responsible for any inability of the Smart-UI Products to communicate with our data centres or networks;
(g) you are responsible for providing or procuring the provision of connectivity and technical support with respect to the applicable Smart-UI Products; and
(h) you must:
(i) maintain a firewall to prevent unauthorised access to the applicable Smart-UI Products and otherwise ensure the security of any communications made to and from the On- Premise Server;
(ii) control access to and use of any passwords and other access credentials that we provide to you or that you create or configure using the applicable Smart-UI Products or with respect to any other software on the On-Premise Server or any firewall;
(iii) take all steps required to prevent the applicable Smart-UI Products and the On-Premise Server from being subjected to viruses, hacking, pirating, unauthorised access and denial of service attacks (Attacks);
(iv) if the On-Premise Server becomes subjected to Attacks, you must promptly take all steps required to perform remedial action on the On-Premise Server and to prevent any further Attacks;
(i) implement and maintain computer and network security at the Hosting Location and on the On-Premise Server; and
(ii) ensure that the On-Premise Server is ready, compatible with, configured and maintained in accordance with any written instructions that we provide to you from time to time.
11.2. For the avoidance of doubt, we are not obligated to provide any Source Code to you with respect to any Smart-UI Products or otherwise.
(a) we shall be deemed to have granted you a non-exclusive, non- sublicensable, non-transferable right for the Term for each of your Authorised End Users to access one instance of those Smart-UI Products, hosted by us or on our behalf for the Permitted Purpose, on approved devices specified by us, for the Term (Approved Devices) (Cloud Subscription);
(b) we undertake to use reasonable endeavours to host or procure the hosting of that instance of the Smart-UI Products during the Term;
(c) you must not use or permit Authorised End Users to use the Smart- UI Products except pursuant to the Cloud Subscription;
(d) we are not responsible for the security or maintenance of the Approved Devices upon which the Smart-UI Products are installed;
(e) you must control access to and use of any passwords and other access credentials that we provide to you or that you create or configure using the Smart-UI Products;
(f) you must implement and maintain reasonable security with respect to the Approved Devices; and
(g) you must ensure that the Approved Devices are ready, compatible with, configured and maintained in accordance with any written instructions that we provide to you from time to time.
13. Maintenance Releases and New Versions of the Smart-UI Products
13.1. You agree and acknowledge that you are not entitled to receive, and that we are not obligated to supply, under this Agreement any version of the Smart-UI Products which from time to time that is a new version of the Smart-UI Products (each, a New Version).
13.2. During the Term, we may release to you updates of the Smart-UI Products that are designed solely to correct faults in the Smart-UI Products (each a Maintenance Release), but which do not constitute a New Version.
13.4. The provisions of this Agreement that apply to the Smart-UI Products will apply equally to any Maintenance Releases and New Versions that we provide to you.
14. Ownership and use of Client Data
14.1. As between you and us, you own all Client Data including all information, text, graphics, audio or visual material that you and/or any Authorised End User uploads or enters into the Smart-UI Products.
14.2. You warrant, agree, represent and acknowledge that:
(a) where a Statement of Work specifies Cloud Hosting, Client Data entered into the Smart-UI Products will be hosted by us or our suppliers on hardware or infrastructure located at the Data Centre Location as set out in the Statement of Work, but we may or may not own or operate the infrastructure upon which the Client Data is hosted, stored, transferred or processed in the course of the provision of the Services;
(b) you are fully entitled and authorised to (including, by obtaining any necessary consent) upload, input, transfer and disclose the Client Data to us and any Authorised End User;
(c) the Client Data and our collection, use, storage and/or disclosure of that Client Data in the course of operating our business will not breach any Applicable Law or right of any person;
(d) it is your responsibility to ensure that the use, hosting, transmission, modification, collection, holding and disclosure of Personal Information in any Client Data through the Smart-UI Products, does not breach any Applicable Law or any person’s rights, and that prior to uploading or entering any Personal Information in any Client Data into the Smart-UI Products, all relevant consents will have been obtained by you as necessary for us to collect, hold, disclose and otherwise process that Personal Information in the course of performing our obligations or exercising our rights under this Agreement;
(f) in the event of any loss or damage to Client Data, your sole and exclusive remedy shall be to request us to use reasonable endeavours to restore the lost or damaged Client Data from the latest back-up of such Client Data that we maintain (where a Statement of Work specifies Cloud Hosting);
(g) we shall not be responsible for any loss, destruction, alteration or unauthorised disclosure of any Client Data.
14.3. You license us and our subcontractors to use Client Data for the purpose of providing the Smart-UI Products and Services to you.
14.4. Notwithstanding any other provision of this Agreement, you agree to maintain your own independent backups of all Client Data.
14.5. Each time you and/or any Authorised End User uses any Smart-UI Product you shall be deemed to have agreed and warranted and represented to us that:
(a) Client Data will only be uploaded, entered, inputted and transferred into and/or via the Smart-UI Product, and Client Data will only be disclosed to us, which can be uploaded, inputted and transferred into and/or via the Smart-UI Product and disclosed to us without contravening any Applicable Laws or the rights of any person;
(b) the Client Data and our collection, use, holding and/or disclosure thereof in the course of performing our obligations under this Agreement, will not breach any person’s rights or any Applicable Law including the Data Protection Laws).
14.6. As between you and us, you are solely responsible for the accuracy, legality and quality of all Client Data, for any claims arising in respect of Client Data and for obtaining any permissions, consents, licences, rights and authorisations necessary for us and our suppliers to use, host, modify, hold, transmit, store and disclose Client Data in connection with this Agreement.
14.7. Except in respect of any Applicable Law that cannot be contracted out of, you agree that as between you and us, we are not responsible for any loss, unauthorised disclosure or access, corruption or hacking of any Client Data.
14.8. If we receive a request from any person for the provision of Personal Information held about them in the Smart-UI Products, you must provide all assistance that we require in order to comply with our legal obligations in connection with any such request.
14.9. Except with respect to Smart-UI Products that are the subject of a Cloud Subscription, you are solely responsible for security of the Smart-UI Products and your networks and systems, including securing them from unauthorised access, including by way of firewalls, and ensuring that they are protected by passcodes that are regularly changed. You shall promptly inform us if you suspect or uncover any breach of security, and shall use all commercially reasonable endeavors to promptly remedy such breach.
(a) use the Smart-UI Products to violate all or any legal rights of any person or company or other entity in any jurisdiction;
(b) use the Smart-UI Products in relation to crimes such as theft and fraud;
(c) use the Smart-UI Products in breach of laws relating to the protection of copyright, trade secrets, patents or other intellectual property and laws relating to spam or privacy and whether such violation is by way of the installation or distribution of "pirated"
14.10. You must indemnify us in respect of any loss and damage that we incur software or otherwise;
in respect of any claim that any Client Data is lost, unavailable, deleted or corrupted or that the transmission, storage, hosting, disclosure, access or use of Client Data by us or our suppliers, or the processing thereof by the Smart-UI Products in connection with this Agreement infringes the Intellectual Property Rights or other rights of any person or breaches any Applicable Law.
15. Authorised End Users
15.1. Where a Statement of Work specifies that we will provide Smart-UI Products to you, we will provide you with access credentials and details for your Authorised End Users.
15.2. We grant you a non-exclusive right to permit your Authorised End Users to use the Smart-UI Products solely for the Permitted Purpose, on Approved Devices in accordance with this Agreement for the Term.
15.3. You must not permit third parties who are not Authorised End Users to use or access the Smart-UI Products and/or Services.
16.1. You may not use or permit any Authorised End User to use the Smart-UI Products except for the Permitted Purpose and may not do or authorise the commission of any act that would or might invalidate or be inconsistent with our Intellectual Property Rights in the Smart-UI Products. Without limiting the foregoing provisions, you agree and acknowledge that except with our prior written consent, you must not, and must not permit any person or entity to:
(a) use the Smart-UI Products who is not an Authorised End User;
(b) license, sublicense, resell, assign, transfer, distribute, or provide others (other than Authorised End Users) with access to, the Smart- UI Products;
(c) “frame”, “mirror” or serve the Smart-UI Products on any web server or other computer server over the Internet or any other network (other than as expressly permitted by this Agreement);
(e) store, transmit or distribute any virus or Client Data or other material using the Smart-UI Products that is unlawful, harmful, threatening, defamatory, infringing, offensive or in breach of any person’s rights;
(f) mine any data from the Smart-UI Products or any database used by the Smart-UI Products;
(g) use the Smart-UI Products in any way which is in breach of any right of any person or any Applicable Law;
(h) use the Smart-UI Products or any part of them (or allow it to be used) (including any component of any graphical user interface or the look and feel of the Smart-UI Products) for the purpose of developing, or contributing to the development of any software competitive with the Smart-UI Products by you or any third party; or
(i) alter, remove or tamper with any trade marks, any patent or copyright notices, or any confidentiality legend or notice, or any numbers, or other means of identification, used on or in relation to the Smart-UI Products.
16.2. You must not, and must not permit any person to:
(d) introduce malicious programs into our network or servers (e.g., viruses, worms, Trojan horses, e-mail bombs);
(e) reveal Smart-UI Products password or other credentials to others or allow use of Smart-UI Products password or other credentials by any person who is not an Authorised End User;
(f) use the Smart-UI Products to make fraudulent offers of goods or services;
(g) use the Smart-UI Products to carry out security breaches or disruptions of network communication. Security breaches include, accessing data of which you are not an intended recipient, logging into a server or account that you are not expressly authorised to access, corrupting any data, network sniffing, pinged floods, packet spoofing, denial of service, and forged routing information for malicious purposes;
(h) use the Smart-UI Products to execute any form of network monitoring which will intercept data not intended for you;
(i) use the Smart-UI Products to circumvent user authentication or security of any of our hosts, networks or accounts or those of our customers or suppliers;
(j) use the Smart-UI Products to interfere with or deny service to anyone;
(k) use any program/script/command, or send messages of any kind, with the intent to interfere with, or disable, any person's use of the Smart-UI Products;
(l) send unsolicited email messages through or to users of the Smart-UI Products in breach of the Spam Act 2003 (Cth);
(m) use the Smart-UI Products to send any form of harassment via email, or any other form of messaging, whether through language, frequency, or size of messages; or
(n) use the Smart-UI Products in breach of any person's privacy (such as by way of identity theft or "phishing").
16.3. You acknowledge that the integrity of the Smart-UI Products is protected by technical protection measures (TPMs) to prevent Intellectual Property Rights, including copyright, in the Smart-UI Products from being misappropriated. You must not attempt in any way to remove or circumvent any TPM from the Smart-UI Products.
16.4. You must comply with any security procedures, policies and standards that we notify you of from time to time with respect to your use of the Smart-UI Products.
16.6. If we expressly authorise you in writing to modify any Smart-UI Products, you are liable for all and any Loss that you incur as a result of any such modifications (Client Modifications), and we shall have no liability for any failure by us to carry out our obligations under this Agreement to the extent caused by the Client Modifications.
16.7. We are not required to provide any warranties or Support Services with respect to any Client Modifications. For the avoidance of doubt, you must not develop, or engage any third party to develop, any Client Modifications except to the extent authorised in writing by us in advance, and subject to any terms and conditions that we impose with respect to any such authorisations.
17. Intellectual Property Rights
17.1. Nothing in this Agreement affects the ownership of any Intellectual Property Rights owned by either party prior to the Commencement Date.
17.2. As between you and us, we own all Intellectual Property Rights in the Smart-UI Products, the Services and the Documentation and in any updates, upgrades, new versions and other modifications of the Smart- UI Products. You must not represent that you own the Smart-UI Products or any updates, upgrades, new versions and other modifications of the Smart-UI Products and/or the Documentation.
17.3. Except as expressly stated herein, this Agreement does not grant you or any third party any rights to or in patents, copyright, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other Intellectual Property Rights or other rights or licences in respect of the Smart-UI Products, the Services or the Documentation.
17.4. You must not directly or indirectly do anything that would or might invalidate, jeopardise, limit, interfere with or put in dispute our or our licensors’ ownership in or rights with respect to the Smart-UI Products, the Services or the Documentation.
17.5. You may not do or authorise the commission of any act that would or might invalidate or be inconsistent with our or our licensors’ Intellectual Property Rights in the Smart-UI Products, the Services or any Documentation.
17.6. You hereby assign to us all and any Intellectual Property rights that you may have in all and any comments in connection with the Smart-UI Products or requests for new Smart-UI Product features that you or your Personnel may suggest or create (each, an Improvement Suggestion). Each Improvement Suggestion becomes our sole and exclusive property. This assignment is effective as soon as you or your Personnel create any Improvement Suggestion or provides an Improvement Suggestion to us including where applicable under section 197 of the Copyright Act 1968 (Cth) and in equity. You further authorise us (or any third parties authorised by us) to infringe any Moral Rights that you have in any Improvement Suggestions. You must execute and procure from your Personnel the execution of any documentation reasonably required by us to give effect to the assignment to us of all Intellectual Property Rights in any Improvement Suggestions and Moral Rights consents from your Personnel in respect of Improvement Suggestions in our favour.
17.7. You must not:
(a) use any of our trade marks or other marks (Marks) except as provided for in this Agreement; or
(b) contest any Mark, apply for registration of any Mark or use or apply for registration of any trade mark, trade name, business name, company name or domain name which is or incorporates any element that is confusingly similar to any Mark.
17.8. Except as expressly provided in this Agreement, you have no rights in respect of any Marks or their associated goodwill, and you hereby acknowledge that all such rights and goodwill inure for the benefit of, and are (and will remain) vested in, us.
18.1. Each party (the first party) agrees and acknowledges that it may receive confidential information of the other party during the term of this Agreement (Confidential Information).
18.2. The first party agrees and acknowledges that the Confidential Information of the other party will be received and held by the first party in strict confidence and will not be disclosed by the first party, except:
(a) with the prior written consent of the other party;
(b) as must be disclosed by Applicable Law;
(c) where disclosed to the Personnel on a confidential basis. The first party must use reasonable endeavours to ensure that its Personnel keep the Confidential Information of the other party that the first party provides to its Personnel confidential;
(d) as required by the rules of any stock exchange; or
(e) as required by a court of competent jurisdiction, and then, only to the extent required, and provided that the first party promptly notifies the other party of such requirement of disclosure and provides full particulars to the other party of the disclosure.
18.3. Confidential Information does not include any information:
(a) that is independently developed, obtained or known by a party, without breaching any obligation of confidence to the other party;
(b) that the first party can prove was already rightfully known by it at the time of disclosure to it as shown by contemporaneous records;
(c) which is or becomes available to the first party from a third party lawfully in possession of such information and who has the lawful power to disclose such information to the first party on a non- confidential basis; or
(d) that is in the public domain or which becomes part of the public domain except where due to a breach of this Agreement or any breach of any obligation of confidence.
18.4. Our Confidential Information includes:
(a) this Agreement;
(b) all parts of the Smart-UI Products (including any designs, graphical user interface, the layout of any parts of the Smart-UI Products and the look and feel of the Smart-UI Products and any Custom Software);
(c) the Documentation;
(d) all Intellectual Property Rights and any proprietary and technical data, trade secrets, patented and unpatented inventions, discoveries, works, improvements, innovations, ideas, concepts, graphs, flow charts, materials, samples, devices, models, know how, techniques, operations, dealings, processes, procedures, secret formula, computer hardware and software programs and designs, drawings, technology, machinery or equipment used or proposed to be used or developed in connection with the Smart-UI Products;
(e) all advertising and marketing information and material provided to you; and
(f) the Object Code and Source Code in the Smart-UI Products, (collectively, Smart-UI Confidential Information).
18.5. Smart-UI Confidential Information is not your Confidential Information and you must not use, modify, reproduce, release, perform, display or disclose it except as is strictly necessary for you to use the Smart-UI Products for the Permitted Purpose in accordance with this Agreement.
19. Support Services
19.1. If Support Services are specified in a Statement of Work, we will provide the Support Services in relation to the Smart-UI Products the subject of the Statement of Work.
20.2. Except as otherwise agreed in a Custom Development Statement of Work, we own all Intellectual Property Rights in all Custom Software. To the extent that we do not automatically own all such Intellectual Property Rights, you hereby assign all such Intellectual Property Rights to us. The assignment pursuant to this clause includes an assignment of future copyright pursuant to section 197 of the Copyright Act 1968 (Cth) and in equity.
20.3. Smart-UI Products will be deemed to include Custom Software for the purposes of this Agreement, except as otherwise expressly specified to the contrary in the applicable Custom Development Statement of Work.
21. Force Majeure Event
21.1. Each party will not be liable to the other party for any breach of this Agreement to the extent that it is caused or contributed to by a Force Majeure Event. In the event that a Force Majeure Event continues for a period of thirty (30) days, either party may, without liability, cancel one or more impacted Services on seven (7) days written notice to the other party.
22. Third Party Software
22.1. You acknowledge that the Smart-UI Products are owned by one or more third parties. There may be third party-owned software, applications, products, platforms and other third party-owned copyrighted material as set out in a Statement of Work and/or Order Form (Third Party Software).
22.2. You must indemnify us from and against any Loss that we incur as a result of your use and/or interfacing Smart-UI Products with any Third Party Software, and you agree and acknowledge that:
(a) the providers of the applicable Third Party Software, and not us, are the suppliers and publishers of the Third Party Software;
(b) we are not responsible for the accuracy, quality or correctness of any Third Party Software and/or their providers;
(c) your use of Third Party Software is pursuant to a contract between you and the applicable Third Party Software provider(s), and not pursuant to a contract between you and us;
(d) your use of Third Party Software is at your sole risk, and not our risk;
(e) we do not make any representations or warranties with respect to any Third Party Software (whether as to their performance, availability, compatibility with the Smart-UI Products and/or otherwise) and/or with respect to any providers of Third Party Software;
(f) we are not responsible for the practices, and/or terms and/or policies of Third Party Software providers;
(g) you warrant that you have read, understood and consented to all and any third party end user agreements, terms, conditions and policies set out in any applicable Statement of Work (Third Party Terms);
(h) you will comply with, and ensure that each of your Authorised End Users comply with, the Third Party Terms;
(i) you must indemnify us from any Loss that we suffer as a result of
your or any Authorised End Users’ breach of any Third Party Terms;
(j) you agree that we have no obligation to provide any technical support or other assistance in connection with any Third Party Software;
(k) you shall be deemed to have irrevocably released us from any claims that you may otherwise have had against us with respect to any non-performance of the Smart-UI Products, and with respect to any loss, damage or corruption of any Client Data, caused by Third Party Software and/or the interfacing of any Third Party Software with Client Data and/or Smart-UI Products;
(l) except where we otherwise expressly specify in writing to the contrary, the providers of Third Party Software are not our partners, co-joint venturers, representatives or agents and any link to any Third Party Software from the Smart-UI Products and/or interfacing and/or integration of the Smart-UI Products with a Third Party Software does not imply that we are affiliated with or sponsor, endorse or approve the Third Party Software
(m) and/or its provider;
(n) we are not responsible for any downtime in the Smart-UI Products that occurs because a third party who operates software that the Smart-UI Products connects to, modifies any part of that software; and
(o) we are not responsible for any loss and/or damage that may be incurred by you directly as a result of claims that your use of Third Party Software breaches the Intellectual Property Rights of any third party.
23.1. Subject to clause 16.5, neither party is liable to the other party for any indirect, special or Consequential Loss incurred by the other party, including liability for loss of profits, loss of business opportunity, loss of savings or loss of data and whether arising in contract, tort (including for negligence) or otherwise, and whether the Consequential Loss is foreseeable or not. This clause does not apply to limit your liability with respect to any indemnity specified in this Agreement or with respect to any liability that cannot be excluded under Applicable Law.
23.2. For any loss or damage that is not otherwise excluded by the provisions of this Agreement, we are only liable for loss or damage that you directly incur as a result of one or more breaches by us of our obligations under this Agreement (“direct loss and damage”). However, our liability for all such direct loss and damage in respect of any one or more events (whether or not pursuant to an indemnity or other provision hereof) and
regardless of the legal or equitable theory (whether under contract, tort or otherwise) is capped, in the aggregate for all claims and all events, to 75% of the fees paid by you to the Channel Partner in accordance with the Order Form or paid by you to us under this Agreement (whichever is the greater) and which cap is reduced to the extent that you or your Personnel was responsible for, or any Force Majeure Event caused such loss or damage.
23.3. We shall not be liable for any non-performance of our obligations under this Agreement where caused by your acts or omissions. If we are delayed or prevented from complying with an obligation under this Agreement due to any of your acts or omissions or those of your Personnel, in such circumstances our obligations will be postponed or relieved accordingly to the extent affected by that act or omission.
24. Warranties and implied guarantees
24.1. Each party warrants that:
(a) it has full capacity, authority and all necessary consents to enter into and to perform this Agreement and to grant the rights referred to in this Agreement and that this Agreement is executed by its duly authorised representative and represents a binding commitment on it;
(b) it shall comply with all Applicable Laws in the performance of its obligations under this Agreement; and
(c) if it is not subject to the Privacy Act 1988 (Cth), it will comply with the Privacy Act 1988 (Cth) as if it were an APP Entity for the purposes of that legislation.
24.2. You warrant that your entering into and/or performance of your obligations under this Agreement does not and will not violate or conflict with or result in a breach of, or constitute a default under, or result in the imposition of, any encumbrance under the provisions of your constitution or any contract or other instrument. If any such conflict, breach or default occurs or is likely to occur:
(a) you must immediately disclose full particulars of the actual and/or likely conflict, breach or default and you must indemnify us for any Loss that we may incur as a result thereof;
(b) we may terminate this Agreement by notice to you.
24.3. You warrant that you have made full disclosure to us of all information which would be material to our decision as to whether or not to enter into this Agreement and that the information given by or on your behalf to us to date is true, complete and accurate in all respects and none of that information is misleading whether by inclusion of misleading information or omission of material information or both.
24.4. The goods and services supplied under this Agreement may come with implied non-excludable guarantees which are regulated by the Australian Consumer Law. The extent of the implied guarantees depends on whether you are a 'consumer' of goods or services within the meaning of that term pursuant to the Australian Consumer Law as amended. Where you are a 'consumer' for the purposes of the Australian Consumer Law, we are required to provide and shall be deemed to have provided the following mandatory statement to you: "Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure."
24.5. If the goods or services supplied by us to you are supplied to you as a 'consumer' of goods or services within the meaning of that term in the Australian Consumer Law as amended you will have the benefit of certain non-excludable rights and remedies in respect of the goods or services and nothing in this Agreement excludes or restricts or modifies any condition, warranty, guarantee, right or remedy which pursuant to the Competition and Consumer Act 2010 (Cth) is so conferred. However, if the goods or services are subject to a non-excludable condition, warranty, guarantee, right or remedy implied by the Australian Consumer Law and the goods or services are not ordinarily acquired for personal, domestic or household use or consumption, then pursuant to section 64A of the Australian Consumer Law, we limit our liability for
breach of any such non-excludable warranty, guarantee, right or remedy implied by the Australian Consumer Law (other than a guarantee implied by sections 51, 52 or 53 of the Australian Consumer Law) or expressly given by us to you, in respect of each of the goods and services, at our option, to one or more of the following:
(a) if the breach relates to goods:
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of such goods;
(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(iv) the payment of the cost of having the goods repaired; and
(b) if the breach relates to services:
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again.
24.6. Any warranty against defects that may be provided by us to you as a 'consumer' under the Australian Consumer Law is in addition to your other rights and remedies under a law in relation to the goods or services to which the warranty relates.
24.7. Other than with respect to any non-excludable guarantees implied into this Agreement under the Australian Consumer Law, to the maximum extent permitted by Applicable Law (if any and if permitted by Applicable Law):
(a) all conditions, warranties and guarantees implied in this Agreement are excluded, to the extent possible by Applicable Law;
(b) we will not have any liability to you for any Loss howsoever incurred in relation to Authorised End Users’ use or inability to use the Smart-UI Products;
(c) we do not warrant that the Smart-UI Products are error-free or will operate accurately, correctly or without interruption or will achieve your intended results; and
(d) you accept sole responsibility for the selection of the Smart-UI Products to achieve your intended results and for any results that you or any Authorised End Users obtain therefrom.
24.8. You must indemnify us from and against all and any Loss that we may incur resulting from any claim by any Authorised End User against us in connection with any Smart-UI Products.
24.9. Notwithstanding any other provisions in this Agreement, nothing in this Agreement excludes your liability for Loss relating to:
(a) a breach of Applicable Law;
(b) use of the Smart-UI Products in combination with any Third Party Software or other software not supplied or approved in writing by us;
(c) unauthorised use, collection, disclosure, modification or processing of Client Data;
(d) any modification or enhancement of Smart-UI Products made by you or any third party;
(e) use of any version of a Smart UI Product other than the latest version supplied by us, if such liability could have been avoided by the use of such latest supplied version;
(f) a breach of any provision of this Agreement concerned with Client Data, privacy and/or personal information;
(g) wilful misconduct;
(h) breach of any provision of this Agreement concerning Confidential Information and/or Intellectual Property Rights; and/or
(a) workers compensation insurance in accordance with applicable legislation for all or your employees;
(b) public liability insurance in the sum of twenty million dollars ($20,000,000) in respect of each claim; and
(c) cyber liability and privacy protection insurance in the amount of five million dollars ($5,000,000) in respect of each claim covering losses for unauthorised access to data and systems, business interruption, data breaches, any damage to or loss of data, cyber extortion and network security events.
(a) pay any cost necessary for obtaining and maintaining any insurance;
(b) procure each insurance with an independent, reputable and solvent insurer approved by us;
(c) provide to us upon request any certificate of currency and upon request any other specific information reasonably requested by us in relation to any insurance;
(d) not perform or permit any action which may cause any prejudicial effect to any insurance or potential claim under any insurance;
(e) perform any action and provide any document, evidence and information necessary to enable us to recover any moneys due at any time under any insurance;
(f) notify us of any fact giving rise to any claim under any insurance, and any material amendment to any insurance, immediately following notice of that fact or amendment by you;
(g) not perform or permit any action which may cause the termination of, or a material change or reduction in, any insurance without our prior written consent; and
(h) permit us without liability to procure any insurance at your full cost in the event of any default by you to obtain that insurance under this Agreement or the invalidity of any insurance.
25.3. For each insurance policy taken out by you in accordance with this Agreement, you must provide us with a certificate of currency which identifies the insurer, policy number, term of the policy, type of insurance and limits of liability for the cover upon request by us from time to time. In addition, you must provide us with a copy of the policy wording as and when requested by us.
26. Suspension and Termination
26.1. We may temporarily and/or permanently suspend and/or disable the performance of the whole or any part of the Smart-UI Products and/or Authorised End User’s access to or use of the Smart-UI Products by way of TPM or otherwise if we know or reasonably suspect that:
(a) you or they are in breach of any of your obligations under this Agreement;
(b) any Authorised End User has not used or is not using the Smart-UI Products in compliance with the Permitted Purpose;
(c) we determine that you or any Authorised End User’s use of the Smart-UI Products is likely to lead to any third-party instituting or threatening legal proceedings against us or any other person;
(d) if you do not pay any amount specified in an Order Form by the time required by that Order Form; or
(e) you do not pay any Fees payable under this Agreement.
26.2. A party may terminate this Agreement, an SOW or your subscription to any Smart-UI Product by written notice to the other party (the defaulting party) if the defaulting party is in material breach of this Agreement which is not remediable, or if capable of remedy and the defaulting party fails to remedy the breach within twenty-eight (28) days of written notice from the other party requiring the remedying of the breach.
26.3. Either party may terminate this Agreement, an SOW or your subscription to any Smart-UI Product by written notice to the other party if the other party suffers an Insolvency Event, except where such termination would contravene the Corporations Act 2001 (Cth) or any other Applicable Law.
26.4. We may terminate this Agreement, an SOW or your subscription to any Smart-UI Product if you undergo a change of Control without our prior written consent.
26.5. If this Agreement, an SOW or your subscription to any Smart-UI Product is terminated or expires for any reason:
(a) any rights or obligations that, by their nature, survive termination shall so survive;
(b) you shall at our option either promptly return all copies of any applicable Smart-UI Confidential Information and Documentation in your possession or control or destroy all such copies of such Smart-UI Confidential Information and Documentation and provide us with a certificate executed by one of your directors based on that director’s actual knowledge that all copies of the Smart-UI Confidential Information Documentation in your possession or control have been deleted and/or destroyed;
(c) in absence of any direction from you within 7 days following termination or expiry of this Agreement, we shall delete all applicable Client Data in our possession or control;
(d) we do not have any obligation to provide you with any refund, except to the extent that we must do so pursuant to Applicable Law;
(e) your right to use and access the Smart-UI Products and Documentation immediately ceases;
(f) our obligation to supply the Smart-UI Products and Services ceases;
(g) you must pay all outstanding Fees payable to us as at the date of termination and any other Fees that would otherwise have been payable to us had the Agreement continued until the end of the Initial Term or the then current Renewal Term (as applicable). All such Fees must be paid to us within seven (7) days of demand by us; and
(h) any licences granted by us pursuant to this Agreement, the SOW or your subscription to any Smart-UI Product (as applicable) immediately cease.
26.6. If this Agreement is terminated, each Statement of Work and your subscription to each of the Smart-UI Products will automatically terminate.
interlocutory relief from any court of competent jurisdiction at any time.
29.1. Assignment: You shall not assign, transfer, license or novate your rights or obligations under this Agreement without our prior written consent (not to be unreasonably withheld).
29.2. Amendments: This Agreement may be amended only by a written document signed by all parties and a provision of or a right under this Agreement may not be waived or varied except in writing signed by the party to be bound.
29.3. Further Steps: Upon a party's reasonable request, the other party shall, at the requesting party's sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to this Agreement.
29.4. Severability: If any provision of this Agreement or its application to any party or circumstance is or becomes invalid or unenforceable to any extent, the remainder of this Agreement and its application shall not be affected and shall remain enforceable to the greatest extent permitted by law.
29.5. Waiver: No exercise or failure to exercise or delay in exercising any right or remedy by a party shall constitute a waiver by that party of that or any other right or remedy available to it.
29.6. Entire Agreement: This Agreement constitutes the entire agreement of the parties about its subject matter and supersedes all other proposals, prior agreements, oral or written, arrangements, agreements and all other communications between the parties about its subject matter.
29.7. Relationship: Nothing contained in this Agreement creates any relationship of partnership, employment, joint venture or agency between the parties.
29.8. Jurisdiction: This Agreement is governed by the laws of New South Wales and each party irrevocably submits to the exclusive jurisdiction of the courts located in New South Wales, and the courts of appeal from them in relation to any dispute concerning this Agreement.
Days after posting if posted domestically, or ten (10) Business Days after29.9. Counterparts: This Agreement may be executed in counterparts
posting if posted internationally.
27.4. Any notice issued by email shall be deemed delivered if the sender receives a read or delivery receipt confirming delivery or receipt of the email or the sender must receive a reply to the email (which reply must include a copy of the original email), in order for the email to be deemed to be delivered. If an email is sent out of Business Hours, it shall be deemed to be delivered at 9am on the next Business Day.
27.5. For email notice to be effective, the sender must receive a read or delivery receipt confirming delivery or receipt of the email or the sender must receive a reply to the email, in order for the email to be deemed to be delivered.
27.6. Any party may change its address for notice hereunder by giving seven
(7) days’ written notice to the other party.
27.7. Text messages, instant messages, messages sent through social media websites, and similar messages are not considered “written” or “in writing” for the purposes of this Agreement.
28.2. A party seeking to resolve a Dispute must notify the existence and nature of the Dispute to the other party (Notification). Upon receipt of a
provided that no binding agreement shall be reached until the executed counterparts are exchanged. A counterpart of a document exchanged by email shall constitute evidence of the execution of the original.
30.1. In this Agreement, the following rules of construction applies, unless the context otherwise requires:
(a) headings and underlinings are for convenience only and do not affect the construction of this Agreement;
(b) a provision of this Agreement will not be interpreted against a party because the party prepared or was responsible for the preparation of the provision, or because the party’s legal representative prepared the provision;
(c) currency or “$” refers to Australian Dollars;
(d) a reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time;
(e) a reference to a clause, subclause or paragraph is a reference to a clause, subclause or paragraph of this Agreement;
(f) a reference to a subclause or paragraph is a reference to the subclause or paragraph in the clause in which the reference is made;
(g) a reference to time is to time in New South Wales;
(h) a reference to a person includes a reference to an individual, a partnership, a company, a joint venture, government body, government department, and any other legal entity;
(i) words in the singular shall include the plural and in the plural, shall include the singular;
(j) a provision of this Agreement shall not be construed against a party merely because the party or its solicitors prepared the provision;
(a) the phrases “specified in the Order Form”, “specified in the Statement of Work” and similar, means specified as being applicable or in the affirmative in the Order Form or relevant Statement of Work;
(b) this Agreement shall not bind you or us until and unless the “Acceptance” section of the Order Form has been executed by both you and us; and
(k) the words 'such as', 'including', ‘includes’ and similar expressions are not used as, nor are intended to be, interpreted as words of limitation and shall be interpreted as if the words “but not limited to” immediately followed them in each case.
31.1. In this document, terms in bold font in brackets have the meanings given thereto as set out in the applicable clauses in which they are defined. Any word starting with a capital letter that is not otherwise defined in this document, shall have the meaning given to it in a Statement of Work. In addition, in this document the following words have the following meanings:
‘Applicable Law’ means any applicable act, law, legislation, rule of the general law, including common law and equity, judicial order or consent or requisition from, by or with any governmental agency, including any Data Protection Law in any applicable jurisdiction.
‘Australian Consumer Law’ means schedule 2 to the Competition and Consumer Act 2010 (Cth).
‘Authorised End User’ means an individual that you authorised to use the Smart-UI Products as set out in the applicable Statement of Work.
‘Back-Up Policy’ means any backup policy that we institute from time to time with respect to Client Data hosted by us, if applicable.
‘Business Days’ means Monday to Friday in New South Wales, excluding public and bank holidays in New South Wales.
‘Business Hours’ means 9:00AM – 5:00PM on Business Days.
‘Commencement Date’ means the commencement date as set out in the Order Form.
‘Consequential Loss’ means any loss or damage which is:
(a) indirect or consequential to another loss;
(b) a loss of revenue, loss of profits, loss of anticipated savings or business, loss of data, loss of opportunity or expectation loss;
(c) a special, punitive or exemplary loss or damage (including, without limitation, any penalty or fine imposed); or
(d) a pure economic loss.
‘Control’ has the meaning given in section 50AA of the Corporations Act 2001 (Cth).
‘Custom Development Statement of Work’ means a document executed by you and us entitled “Custom Development Statement of Work”.
‘Client Data’ means any data transmitted by you, any Authorised End User or any of your Personnel into or via the Smart-UI Products or Services and includes all and any Personal Information.
‘Data Protection Law’ means all applicable data protection and privacy laws in any applicable jurisdiction, including the Privacy Act 1988 (Cth). ‘Documentation’ means any information, materials or documents (whether in electronic form or not) referring to or describing the Smart- UI Products and/or Services that we provide to you from time to time. Documentation also includes any written specifications, Statements of Work and manuals.
‘Force Majeure Event’ means any act, event, omission, accident or
circumstance beyond our reasonable control.
‘GST’ has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended or replaced from time to time. ‘Hosting Location’ means the location designated by you for the provision of on premise hosting services as set out in a Statement of Work.
‘Initial Term’ means the initial term of the subscription to the Smart-UI Product as specified in the Order Form.
‘Insolvency Event’ means, in respect of a party: (a) the party ceases to carry on business, is unable to pay its debts as and when they fall due, or is deemed to be insolvent or bankrupt; (b) a receiver or a liquidator or provisional liquidator or an administrator is appointed to the party, or an application (including voluntary application filed by that party) is lodged or an order is made or a resolution is passed for the winding up (whether voluntary or compulsory) or reduction of capital of that party;
(c) the party enters into an arrangement with its creditors; (d) where the party is a partnership, the partnership is dissolved or an application is made for its dissolution; (e) the party suspends payment of its debts to the other party or a third party, or the party takes the benefit of any law for the relief of insolvent debtors; or (f) anything analogous or having a substantially similar effect to any of the events described in (a) through
(e) above occurs under the law of any applicable jurisdiction.
‘Intellectual Property Rights’ means all current and future intellectual property rights, including all copyright, patents, trade marks, design rights, trade secrets, domain names, and other rights of a similar nature and all other rights to intellectual property as defined under Article 2 of the convention establishing the World Intellectual Property Organization, whether registrable or not and whether registered or not, and any applications for registration or rights to make such an application, anywhere in the World.
‘Loss’ means any direct or indirect loss, cost, expense, penalties, fines, liability or damage including legal costs on a solicitor/client basis and any claim, demand or proceedings brought, or judgment or order obtained, by a third party.
‘Moral Rights’ has the meaning given in the Copyright Act 1968 (Cth).
‘Object Code’ means computer code in a form that a computer can execute, when compiled or converted from its Source Code version.
‘Parties’ or ‘parties’ means you and us and ‘Party’ or ‘party’ means
either you or us as the context dictates.
‘Payment Terms’ means any payment terms and conditions set out in a valid tax invoice.
‘Permitted Purpose’ means as set out in an SOW.
‘Personal Information’ has the meaning given in Privacy Act 1988 (Cth), as amended from time to time.
‘Personnel’ means officers, agents, employees and subcontractors. For the avoidance of doubt, we are not your Personnel and you are not our Personnel.
‘Smart-UI Products’ means as set out in the applicable Order Form and/or SOW.
‘Smart-UI Terms of Trade’ means this document entitled “the Smart-UI Terms of Trade”.
‘Services’ means the services that we expressly agree to provide to you, as set out in an Order Form and/or SOW.
‘Source Code’ means computer code in human-readable form, that when compiled becomes Object Code.
‘Specifications’ means any written specifications set out in a Statement of Work.
‘Statement of Work’ or ‘SOW’ means a document entitled “Statement of Work” executed by you and us. The SOW will be substantially in the form approved by us and include any such information as reasonably required by us.
‘Term’ means the Initial Term and each Renewal Term.