Commerce Vision Pty Ltd ACN 095 933 430 (“Commerce Vision”) General Terms and Conditions.
The Terms are intended to explain Our obligations as a service provider and Your obligations as a customer. We ask that You read them carefully. They apply to the use of the Licensed Software and Our Services.
The Terms are binding on Your use of the Services and apply to You from the time that you are provided access to the Services.
In agreeing to use the Services by completing the Customer Order Form you acknowledge that You have read and understood the Terms and have agreed to use the Services strictly in compliance with the Terms.
“Agreement” means Our agreement to provide You with the Services on the terms and conditions contained in this document, together with the Scope of Works and the Customer Order Form, and includes any schedule hereto.
“Business Day” means a day on which banks are open for business in Brisbane, Australia.
“Commencement Date” means the date specified in Item 1A of the Customer Order Form.
“Confidential Information” includes all information exchanged between the parties to this Agreement, whether in writing, electronically or orally, including this Agreement, which information is identified as confidential at the time of its disclosure, or ought reasonably to be considered confidential based on its content, nature or the manner of its disclosure, but excluding information which is, or becomes, publicly available other than through the unauthorised disclosure by a party.
“Customer” means the customer specified in the Customer Order Form.
“Customer Data” means all information, text, data, logos, images, audio, movie clips and all content in any form provided by the Customer which forms part of the Licensed Web Sites.
“Customer Order Form” means the order form signed by You agreeing to the terms and conditions on which the Services are supplied and to Our Fees.
“Developed Software” means all Software which is developed under this Agreement for You.
“Documentation” means such documents, user manuals, online resources and other materials as are reasonably necessary for the effective installation, operation and use of the Services including without limitation any relevant training manuals or other training materials.
“Fees” means the fees charged by Us from time to time for supplying the Services.
“Fixed Hosting Fee” means the fixed recurring fee listed in Item 1B of the Customer Order Form invoiced and payable in advance by You to Us for hosting the Licensed Software for the Licensed Web Sites in the Hosting Environment.
“Force Majeure Event” means any event beyond the control of the relevant party.
“Governmental Agency” means any government or any governmental, semi-governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity.
"Hosting Environment" means the operating environment provided by the Hosting Provider where the Licensed Software is installed.
“Hosting Fee” means the Fixed Hosting Fee or the Variable Hosting Fee which has been ordered by You and specified in the Customer Order Form.
“Hosting Provider” means Us or a company subcontracted by Us to provide the Hosting Environment for hosting the Licensed Software.
“Initial Term” means the period referred to in Item 1 of the Customer Order Form or such shorter period if this Agreement is terminated in accordance with clause 14.
“Intellectual Property Rights” means any intellectual property rights, including all patents, trade marks, service marks, copyrights, Moral Rights, rights in a design, trade secrets, domain names, know-how and any other intellectual or industrial property rights of a similar nature, whether registrable or not and whether registered or not and applications for registration or rights to make such an application and industrial rights anywhere in the world.
“Internet” means the worldwide connection of computer networks providing for the transmittal of electronic mail, on-line information, information retrieval and file transfer protocol.
“Laws” means all laws applicable in the State of Queensland including rules of common law, principles of equity, statutes, regulations, proclamations, ordinances, by-laws, rules, regulatory principles and requirements, mandatory codes of conduct, writs, orders, injunctions, judgments, contracts, agreements and deeds.
“Licence” means the licence granted to You to utilise the Licensed Software for the Licensed Web Sites.
“Licensed Software” includes all computer programs and programming (including source code, object code and micro code), middleware, sub-system software, operating systems, database management systems, system utilities and all software tools, methodology, associated documentation and media on which the software is stored.
“Licensed Web Sites” means the web sites listed in Item 1A of the Customer Order Form.
“Moral Rights” means the moral rights as defined in the Copyright Act 1988 (Cth).
“Party” means either You or Us, as the context requires.
“Prevailing Hourly Rate” means the rate set out in Item 2A of the Customer Order Form (as amended from time to time).
“Representatives” means Your or Our respective directors, officers, employees and agents.
“Scheduled Maintenance” means tasks planned in advance which need to be performed on the Hosting Environment by Us under this Agreement.
“Schedules” means any schedule to this Agreement, including any future additional schedule separately executed as a Schedule to this Agreement.
“Scope of Works” means the document that specifies the works to be carried out by Us in supplying the Services for You and which will be supplied by Us to You contemporaneously with the Customer Order Form.
“Services” means the supply of the Licenced Software by Us to You by way of subscription, the support required for maintaining the Licenced Software, the implementation services in delivering the Scope of Works and website hosting in accordance with this Agreement.
“Software Subscription Fee” means the composite fee charged by Us for the provision of the Licensed Software listed in Item 1A of the Customer Order Form.
“Supplementary Services” means any services supplied by Us at Your request which are not contained in the Scope of Works.
“Third Party” means a person or entity other than You or Us.
“Unscheduled Maintenance” means faults or tasks not planned in advance which need to be performed on the Hosting Environment by us under this Agreement.
“Variable Hosting Fee” means the fee listed in Item 1D of the Customer Order Form invoiced to You monthly in arrears which is based on actual usage of hosting resources and will vary from month to month for hosting the Licensed Software for the Licenced Web Sites in the Hosting Environment.
“We” means Commerce Vision Pty Ltd ACN 095 933 430 “Our” and “Us” have a corresponding meaning.
“You” means the Customer and "Your" has a corresponding meaning.
2. INTERPRETATION2.1 In the interpretation of this Agreement, the following provisions apply unless the context otherwise requires:
3. WORKS AND SERVICES
3.1 We will undertake the works referred to in the Scope of Work and provide You with the Services in accordance with the terms of this Agreement.
4.1 We warrant that We have the right and authority to grant You the Licence.
4.2 You shall not copy, alter, modify or reproduce the Licensed Software without Our prior written consent.
4.3 The Licence is not transferable by You to a Third Party.
5. PAYMENT OBLIGATIONS
5.1 You must pay to Us:
5.2 Our tax invoices are payable in Australian dollars within fourteen (14) days of the date of issue.
5.3 Our fees do not include taxes and You are responsible for all taxes and duties whatsoever which may be or may become payable pursuant to this Agreement or arising from the use of the Licensed Software including but not limited to GST referred to in clause 7.
5.4 The fees listed in the Customer Order Form will remain fixed for the Initial Term and thereafter We shall notify You in writing thirty (30) days in advance of any increases;
5.5 After the Initial Term, We shall be entitled to increase Our fees in accordance with movements in the Consumer Price Index, Australia (All Groups) (“CPI”) as published by the Australian Bureau of Statistics or at the rate of 5% per annum, whichever is the greater provided that, subject to clause 5.6, increases in Our fees will be limited to once per year.
5.6 We reserve the right to increase the Software Subscription Fee and the Fixed Hosting Fee in circumstances where You merge with, amalgamate with, acquire, or transact on behalf of another business or entity which has the effect of increasing the level of use of the Licensed Software.
6. MAINTENANCE AND BACKUP
6.1 We will perform Scheduled Maintenance from time to time during the hours of 10pm to 6am AEST. You will be notified by email at least 48 hours prior to Us conducting any Scheduled Maintenance. Scheduled Maintenance may affect connectivity from the Hosting Environment to the Internet. Examples of Scheduled Maintenance include, but are not limited to, the application of security patches and upgrading hardware.
6.2 Unscheduled Maintenance may need to be performed from time to time. Unscheduled Maintenance may affect connectivity from the Hosting Environment to the Internet. Examples of Unscheduled Maintenance include but are not limited to the rectification of equipment failure or network connectivity failure. Where Unscheduled Maintenance has affected connectivity from the Hosting Environment to the Internet You will be notified by email.
6.3 We will perform nightly backups of the Customer Data between the hours of 1am and 4am AEST to location redundant storage.
7. GOODS AND SERVICES TAX
7.1 For the purpose of this Agreement “GST” means the goods and services tax as defined in the A New Tax System (Goods and Services Tax) Act 1999.
7.2 The Parties acknowledge that GST shall be payable in respect of a supply made under this Agreement;
7.3 Where GST becomes payable in respect of a supply made under this Agreement We shall recover the GST from You by increasing the consideration payable by You to Us by an amount equal to that which We are obliged to remit to the Commonwealth as GST on the supply and that amount shall be recovered from You as part of the monies payable to Us under this Agreement.
7.4 We shall issue to You a valid GST Tax Invoice in respect of any taxable supply made under this Agreement.
7.5 Terms used in this Agreement have the meanings given to them in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
8. SECURITY, PRIVACY, AND LAWS
8.1 We must:
8.2 We must ensure that adequate perimeter defence is in place in order to safeguard Customer Data
8.3 If We become aware of a breach or potential breach of such procedures and safeguards We must immediately:
9.1 Each Party warrants that:
10. ACKNOWLEDGEMENT AND AUTHORISATION
10.1 You acknowledge that:
11.1 We shall not be liable for:
12.1 Each Party agrees to keep confidential and not to use or disclose, other than as permitted by this Agreement, any Confidential Information of the other Party.
12.2 The obligations of confidence extend to Confidential Information provided to or obtained by a Party before entering into this Agreement.
12.3 The following items are specifically agreed by the Parties to be excluded from the restraints contained in this clause being applied to Confidential Information:
12.4 Each Party may use and disclose Confidential Information of the other only on a "need to know" and confidential basis with the prior written consent of the other Party:
12.5 Each Party which discloses Confidential Information of the other pursuant to clauses 12.4(a) and 12.4(b) must ensure that such information is kept confidential by the recipient.
12.6 Each Party's obligations under this clause 12 continue until the Confidential Information disclosed to it lawfully becomes part of the public domain.
13. INTELLECTUAL PROPERTY
13.1 If a Party intends to copy material obtained from the other it must reproduce any copyright confidentiality attribution or other legend which appears on such material.
13.2 We must include copyright confidentiality attribution and other similar legends in a form reasonably required by You on any material You create which is to be owned or controlled by You.
13.3 Each Party must perform its obligations and exercise its rights under this clause in a manner consistent with the reasonable directions of the other Party so as not to infringe or misappropriate any Intellectual Property Rights of any person.
13.4 We must not make any copy of the Customer Data except for back-up and security.
13.5 The copies for backup and security belong to You and are subject to this Agreement as if they were Confidential Information.
13.6 We must not use the copy for any other purpose.
13.7 Ownership of the Intellectual Property of the Licensed Software and any Developed Software remains with Us even though You may have contributed to its creation.
14.1 Either You or We may terminate this Agreement in the following circumstances:
15. EFFECT OF TERMINATION
15.1 Upon termination of this Agreement by whatever means and howsoever effected:
15.2 Notwithstanding clause 15.1, the terms and conditions of clauses 11 and 14, together with any definitional or interpretational clauses required to give effect to those clauses will remain operative and in full force and effect after the expiry or termination of this Agreement, by whatever means and howsoever effected.
16. DISPUTE RESOLUTION
16.1 Subject to clause 16.4 before any legal proceedings are commenced the Parties must promptly enter into good faith negotiations pursuant to this clause and to engage in the mediation process pursuant to clause 16.4 to attempt to resolve any disputes arising under the Agreement.
16.2 A dispute will be regarded as having arisen on the date that a Party gives the other written notice identifying the dispute.
16.3 In the first instance any dispute will be referred to the chief executive officer of each Party or his nominee to seek a mutual resolution of the dispute.
16.4 The Parties agree that any dispute which cannot be satisfactorily resolved by the Parties themselves within 14 (fourteen) days of the dispute arising will be referred to a process of non-binding mediation to be conducted by a mediator in accordance with guidelines to be agreed by the Parties provided that if the Parties fail to agree on who should be the mediator or how the mediation should be conducted they will request the Institute of Arbitrators and Mediators Australia to recommend a suitable mediator who will conduct the mediation in accordance with the guidelines and procedures of the Institute of Arbitrators and Mediators Australia and the Parties will seek to complete the mediation within 28 (twenty-eight) days of the matter being referred to mediation.
16.5 Nothing in this clause will prevent a Party from seeking urgent interlocutory relief.
16.6 Notwithstanding the existence of a dispute We must at all times continue to perform the Agreement and to provide the Services and You and We must continue to comply with the other requirements of the Agreement.
17. FORCE MAJEURE
17.1 Neither Party shall be liable for any delay or failure to perform its obligations pursuant to this Agreement if such failure or delay is due to Force Majeure.
17.2 The Party to this Agreement seeking to rely on a circumstance of Force Majeure shall immediately notify the other Party of any anticipated delay due to Force Majeure and the performance of the Party's obligations under this Agreement will be suspended for the period of the delay due to Force Majeure.
17.3 If the period of the delay due to Force Majeure exceeds sixty (60) days the Party for whose benefit an obligation remains unperformed may immediately terminate this Agreement on providing notice to the other Party and if such notice is given:
18. ENTIRE AGREEMENT
18.1 This Agreement constitutes the entire agreement between the Parties hereto with respect to the subject matter hereof and shall supersede all previous negotiations commitments and writings and it shall not be varied except by an instrument in writing signed by a duly authorised representative of each of the Parties.
19. ESCROW ARRANGEMENTS
19.1 We warrant that We will enter into an escrow deposit agreement with an escrow agent if requested by You at Your expense.
19.2 We shall at Your request notify the escrow agent that You are authorised to enter into an escrow services agreement with the escrow agent on terms and conditions satisfactory to Us for the Licensed Software.
20.1 Any notice or communication given to a Party is only given if it is in writing and sent in one of the following ways:
20.2 If a Party gives the other Party three (3) Business Days' notice of a change of its address any notice or communication is only given by that other Party if it is delivered or posted to the latest address.
20.3 A notice is effective:
20.4 If any notice or communication is given on a day that is not a Business Day or after 5pm on a Business Day in the place of the Party to whom it is sent it is to be treated as having been given at the beginning of the next Business Day.
Except as otherwise set out in this document each Party must pay its own costs and expenses in relation to preparing negotiating executing and completing this document and any document related to this document.
21.3 Execution of separate documents
This document is properly executed if each Party executes either this document or an identical document and in the latter case this document takes effect when the separately executed documents are exchanged between the Parties.
21.4 Further acts
Each Party must at its own expense promptly execute all documents and do or use all reasonable endeavours to cause a Third Party to do all things that the other Party from time to time may reasonably request in order to give effect to perfect or complete this document and all transactions incidental to it.
21.5 Joint and individual liability and benefits
Except as otherwise set out in this document any agreement, covenant representation or warranty under this Agreement by two or more persons binds them jointly and each of them individually, and any benefit in favour of two or more persons is for the benefit of them jointly and each of them individually.
Each provision of this Agreement is individually severable and if any provision is or becomes illegal unenforceable or invalid in any jurisdiction it is to be treated as being severed from this document in the relevant jurisdiction but the rest of this document will not be affected and the legality validity and enforceability of the provision in any other jurisdiction will not be affected.
No variation of this Agreement will be of any force or effect unless it is in writing and signed by each Party to this document.