Legal

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Terms of Service

Introduction

1. Interpretation

2. Duration of Agreement

3. Provision of access

4. Service level

5. Data and access

6. Intellectual Property Rights

7. Privacy

8. Charges

9. Compliance with law

10. Confidentiality

11. General exclusion and operation of laws

12. Liability of AssetFuture

13. Termination

14. Force majeure

15. Dispute Resolution

16. Entire Agreement

17. Assignment and novation

18. Waiver and variation

19. Severability

20. Governing law

21. Notices

22. Execution

Introduction

A. The Customer requires access to an AssetFuture software application to assist the Customer with its business.

B. AssetFuture owns the software application referred to in paragraph A and has the right to allow other parties to access and use the application under licence.

C. The parties have agreed that AssetFuture will make the software application referred to in paragraph A available to the Customer as a service on these General Terms and Conditions.

It is agreed

Interpretation

1.1. In these General Terms and Conditions, unless otherwise indicated by the context:

(a) Additional Charge means a charge in accordance with AssetFuture’s standard rates in effect from time to time;

(b) Application means the software application, more specifically as described in the Order Form;

(d) Confidential Information means in the case of Customer, Customer Data and in the case of AssetFuture, includes:

(i) information relating to the Application;

(ii) information relating to the personnel, policies, business, systems and data of AssetFuture; and

(iii) information relating to the terms on which the Services are to be provided to Customer pursuant to these Terms and Conditions, the Order Form and the Service Levels;

(e) Customer Access Facilities means telecommunications, networks, systems and any other facilities used or required by or on behalf of Customer for accessing and making use of any Services other than the facilities actually provided by AssetFuture from time to time under these Terms and Conditions, the Order Form and Service Levels;

(f) Customer Data means data to which AssetFuture is provided access by Customer for the purpose of the Services;

(g) Force Majeure means a circumstance beyond the reasonable control of AssetFuture which results in AssetFuture being unable to observe or perform on time an obligation under these Terms and Conditions, the Order Form and Service Levels. Such circumstances shall include but shall not be limited to:

(i) any faults, defects, incorrect operation of or other circumstance affecting or relating to Customer Access Facilities; and

(ii) acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires, pandemics and any natural disaster, acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution and strikes;

(h) GST means:

(i) the same as in the GST Law;

(ii) any other goods and services tax, or any tax applying to this transaction in a similar way; and

(iii) any additional tax, penalty tax, fine, interest or other charge under a law of such a tax;

(i) GST Law means the same as GST Law in A New Tax System (Goods and Services Tax) Act 1999 (Cth);

(j) Initial Term means the period so specified in the Order Form;

(k) Intellectual Property Rights means all present and future rights, title and interest conferred by statute, common law or equity in or in relation to copyright, trade marks, designs, inventions (including patents), circuit layouts, software, software code, business or domain names, whether or not existing and whether or not registered or registrable and includes:

(i) any right to apply for registration of these rights;

(ii) all renewables and extensions of these rights; and

(iii) all ancillary rights or related rights other than Moral Rights;

(l) Moral Rights means all present and future personal and non-assignable rights of integrity of authorship, rights of attribution of authorship, rights not to have authorship falsely attributed and rights of similar nature conferred by statute anywhere in the world;

(m) Project Material means:

(i) data derived from use of the Application by or on behalf of the Customer; or

(ii) data or documentation created by AssetFuture specifically for the Customer pursuant to the provisions of the Services;

(n) Schedule means the Oder Form and Service Levels as a schedule to these Terms and Conditions;

(o) Service Levels means the level of application support to be provided by AssetFuture as specified in the Service Levels;

(p) Services means the services which AssetFuture agrees to provide under these Terms and Conditions, namely access to the Application as specified in the Order Form and Service Levels; and

(q) Subsequent Term(s) means the period so specified in the Oder Form

(r) Terms and Conditions means the 22 clauses of this document and the Schedules to it;

1.2. In these Terms and Conditions, the Order Form and Service Levels, unless otherwise the contrary intention appears:

(a) the clause headings are for ease of reference only and shall not be relevant to interpretation;

(b) a reference to a clause number is a reference to its subclauses;

(d) words importing a gender include any other gender;

(e) a reference to a person includes bodies corporate and unincorporated associations and partnerships:

(f) a reference to a clause is a reference to a clause or subclause of these Terms and Conditions;

(g) a reference to a subclause is a reference to a subclause of the clause in which that reference is made;

(h) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;

(i) a reference to a Schedule includes a reference to any part of that Schedule which is incorporated by reference;

(j) the recitals to these Terms and Conditions do not form part of the Agreement; and

(k) monetary references are references to Australian currency.

2. Duration of Agreement

2.1. The Initial Term shall commence on the Commencement Date and continue for the Initial Term and Subsequent Term specified in the Order Form.

2.2. Subject to subclause 2.3, this Agreement may be renewed for subsequent terms of similar duration to the Initial Term. The Customer shall provide at least thirty (30) days’ notice in writing prior to the expiry of the Initial Term or expiry of any Subsequent Term if it wishes to terminate the Agreement pursuant to this subclause.

2.3. Renewal of this Agreement pursuant to subclause 2.2 is subject to the consent of AssetFuture. The Customer agrees that AssetFuture may require an adjustment of the Charges as a condition of providing its consent to renewal.

3. Provision of access

3.1. Subject to these Terms and Conditions, AssetFuture will provide the Customer with access to the Application in the manner specified in the Order Form.

3.2. The Customer agrees that it may only acquire and make use of the Services for the sole purpose of meeting the internal business needs of its business and that its business is accurately described in The Order Form.

3.3. Other than for AssetFuture’s obligation to give Customer access to the Application as part of the Services, if any consents (which may include, without limitation, consents for AssetFuture to access use, store and disclose Customer Data) are required for AssetFuture to provide the Services, Customer must procure those consents for AssetFuture. AssetFuture’s obligations to provide the Services are conditional on those consents having been procured. Customer shall comply with AssetFuture’s reasonable requests for confirmation of this.

3.4. AssetFuture may configure its system and determine the nature and manner of its internal technical support in its discretion. Customer agrees to comply with such access and use procedures (including as to communications and security) as AssetFuture notifies Customer from time to time.

3.5. Other than as expressly permitted by these Terms and Conditions, Customer shall not do or permit anything to be done in respect of the Application or the Services. Without limiting the preceding sentence, Customer shall not:

(a) decompile, reverse engineer or derive the source code of the Application;

(b) bypass security measures or tamper with the Application to cause it to operate in a manner that is not intended;

(d) make programs or materials resulting from the Services available to any third party for use in the third party’s business or for any other person;

(e) commercially exploit the Services or the Application (including by making it available to any third party); and

(f) distribute or transmit any part of the Services by any means.

3.6. Customer shall use reasonable efforts to prevent unauthorised third parties from accessing the Services.

3.7. Customer agrees that the access rights of any individual user permitted to use the Services (for example on a named or password-enabled basis) cannot be shared or used by more than one individual, unless the right is reassigned in its entirety to another individual authorised user in which case the first user shall no longer have any right to access all or any part of the Services.

3.8. The Customer agrees that the maximum disk storage space to be made available to it for the purposes of these Terms and Conditions as at the Commencement Date is as specified in The Order Form. The Customer agrees to comply with any notice from AssetFuture (giving at least 30 days in advance) for any changes to AssetFuture’s practices, policies and limits relating to disk storage space.

3.9. Customer agrees not to make or permit any use of the Services in a way which is unacceptable. Use is unacceptable if:

(a) it involves anything which is false, defamatory, harassing or obscene;

(b) it involves unsolicited electronic messages;

(d) it may offend any laws: or

(e) it may otherwise be regarded by AssetFuture, on reasonable grounds, to be unacceptable.

Customer agrees that AssetFuture may immediately suspend all or any part of the Services, and remove or disable access to anything that contravenes those restrictions or is otherwise in breach of these Terms and Conditions.

4. Service Level

Subject to the terms of these Terms and Conditions, during the Initial and Subsequent Term(s) AssetFuture shall provide the Services to the levels of service in accordance with the Service Levels.

5. Data and access

5.1. AssetFuture agrees that Customer Data is Customer's Confidential Information.

5.2. AssetFuture shall, to the extent specified in The Order Form, make backup copies of Customer Data.

5.3. AssetFuture shall on reasonable notice make Customer Data and related data, documentation or records maintained on behalf of Customer available once annually for inspection by Customer or Customer's auditors.

5.4. Customer agrees to pay any Additional Charge invoiced by AssetFuture in respect of additional services provided pursuant to subclauses 5.2 and 5.3.

5.5. Customer agrees that it has sole responsibility for the accuracy, quality, integrity, legal compliance, reliability, appropriateness and rights of ownership in all Customer Data. Customer also agrees that there are limitations to the Application’s and Services’ ability to assist in Customer’s business. Customer agrees that the Application and the Services do not detect faulty or aberrant input data, do not take into account all of the matters that should be considered in decision making regarding matters of relevance to Customer’s business and should not be used as a substitute for Customer's independent and appropriately qualified decisions regarding matters of relevance to Customer’s business. Customer warrants that it will not make or permit any access to or use of the Application or Services unless it has in place appropriate strategies, in addition to (and not reliant on) its use of the Application and Services to manage all risks attendance on its business.

5.6. Customer shall be responsible for providing its own Customer Access Facilities.

5.7. Customer warrants and shall ensure compliance with all Customer Access Facilities security standards required or as agreed by AssetFuture from time to time and will protect from any circumstances (including viruses) which may adversely affect AssetFuture, the Application or the Services and are otherwise reasonably appropriate for conjunction with the Services.

5.8. Third party facilities, including software programs, may be necessary or appropriate for access to or use with the Application. Customer agrees that its right to make any use of such facilities is governed by the terms of the relevant third-party licence/services agreement and not by these Terms and Conditions.

6. Intellectual Property Rights

6.1. Customer retains sole and exclusive ownership of or the licence rights to all Intellectual Property Rights in the Customer Data.

6.2. To the extent that Customer Data is necessary for the Services to be rendered by AssetFuture, the Customer grants to AssetFuture a royalty free, non-exclusive licence or sub-licence, as the case may be to use the Customer Data to render those Services.

6.3. AssetFuture retains sole and exclusive ownership of or the licence rights to all Intellectual Property Rights in the Application or other material supplied by AssetFuture to the Customer pursuant to these Terms and Conditions.

6.4. Subject to subclause 6.5, the parties agree that all Intellectual Property Rights in the Project Material vest in the Customer.

6.5. Customer grants to AssetFuture a royalty free and licence free perpetual licence to use the Project Material for its own business purposes provided the identity of the Customer is not disclosed to a third party.

7. Privacy

7.1. In performing the Services, AssetFuture shall comply with its privacy policy in force at the date of signing the Order Form, the Privacy Act 1988 (Cth), and all applicable subordinate legislation, regulations, or other applicable laws. AssetFuture’s privacy terms are subject to change from time to time, provided that any such change will not materially reduce the level of privacy protection tor Customer Data during the period for which any Charges have been paid.

7.2. AssetFuture may provide the Services from any locations, and/or through the use of contractors, worldwide.

7.3. Without limiting clauses 3.3 and 10.1, Customer agrees to provide any information, and to obtain any consents, relevant to its use of the Services and Application, including those in relation to the collection, use, disclosure and storage of personal information of any individual whose personal information may be included in Customer Data.

8. Charges

8.1. Customer shall pay the Charges and any Additional Charges at the rate and in the manner specified in the Order Form.

8.2. Customer shall pay AssetFuture such Additional Charges as AssetFuture invoices from time to time for the supply of goods or services not expressly required by these Terms and Conditions or (without limiting AssetFuture’s remedies at law) which were;

(a) either requested by Customer; or

(b) incurred by AssetFuture as a result of carrying out any works which were reasonably appropriate in connection with Customer’s non-performance of these Terms and Conditions and. such non-performance is not remedied within seven (7) days of it notifying Customer.

8.3. If Customer disputes the whole or any portion of an invoice submitted by AssetFuture, Customer shall pay the portion, of the amount stated in the invoice which is not in dispute and shall notify AssetFuture in writing (within twenty-eight (28) days of receipt of invoice) of the reasons for disputing the remainder of the invoice. If it is resolved that some or all of the amount in dispute ought properly to have been paid at the time it was first invoiced, then Customer shall pay the amount finally resolved together with interest on that amount in accordance with the terms of payment set out in these Terms and Conditions (and at the rate of interest specified in the Order Form).

8.4. Customer shall pay AssetFuture interest on any amount due and not paid by Customer within the time required by these Terms and Conditions at the rate of interest specified in the Order Form.

8.5. In addition to paying the Charges and any other amount payable under or in connection with these Terms and Conditions (which are exclusive of GST), Customer will:

(a) pay to AssetFuture an amount equal to any GST payable for any supply by AssetFuture in connection with these Terms and Conditions, the Order Form and Service Levels; and

(b) make such payment on the date when the Charges or other amounts to which it relates is due.

9. Compliance with law

9.1. AssetFuture is not liable to Customer under these Terms and Conditions or otherwise if and to the extent Customer’s access to or use of any Services is contrary to any obligations, including those owed under contract or any laws.

9.2. AssetFuture may (but is not bound to) make Customer Data and any other information (in any form) relevant to Customer's relationship with AssetFuture under these Terms and Conditions available to any person who provides reasonable evidence to AssetFuture of their right to this, including a law enforcement officer, a person representing any professional or industry standards organisation and representatives of any person to whom Customer Data pertains.

9.3. Customer shall indemnify AssetFuture against all loss (including costs, expenses, damages and liability, whether actual or prospective) incurred or likely to be incurred as a result of:

(a) AssetFuture’s collection, use, disclosure, storage or other involvement with Customer Data and any other information (in any form) relevant to Customer’s relationship with AssetFuture under these Terms and Conditions; and

(b) acting in accordance with the preceding subclause 9.2,

10. Confidentiality

10.1. A party shall not, without the prior written approval of the other party, disclose the other party's Confidential Information.

10.2. A party shall not be in breach of subclause 10.1 for any uses or disclosures of Confidential Information which:

(a) are required by law;

(b) are to related companies, advisers, contractors, auditors or insurers; or

10.3. This clause shall survive the termination of these Terms and Conditions.

11. General exclusion and operation of laws

11.1. Nothing in these Terms and Conditions excludes, restricts or modifies any condition, warranty, right or liability implied in these Terms and Conditions or protected by law to the extent that such exclusion, restriction or modification would render these Terms and Conditions or any provision of these Terms and Conditions void, illegal or unenforceable. Subject to that, any condition, warranty, right or liability which would otherwise be implied in these Terms and Conditions or protected by law is excluded.

11.2. The Customer acknowledges and agrees that:

(a) prior to signing the Order Form and entering into these Terms and Conditions it has been given a reasonable opportunity to examine and satisfy itself regarding all goods and services which are the subject of these Terms and Conditions and that prior to entering into these Terms and Conditions it has availed itself of that opportunity;

(b) where any acquisition of goods and services under these Terms and Conditions has been made by reference to a sample or demonstration model, prior to entering into these Terms and Conditions the Customer has been given a reasonable opportunity:

(i) to satisfy itself that the goods and services correspond with the sample or demonstration model as to quality, state and condition; and

(ii) to examine the sample or demonstration model for any apparent defects, and that it has availed itself of that opportunity.

11.3. The application of the United Nations Convention on Contracts for the International Sale of Goods (the Vienna Convention) to these Terms and Conditions (by virtue of any law relevant to (his Agreement) is excluded.

11.4. Pursuant to s 64A of the Australian. Consumer Law (under the Competition and Consumer Act 2010 (Cth)):

(a) this sub-clause applies in respect of any of the goods or services supplied under these Terms and Conditions which are not of a kind ordinarily acquired for personal, domestic or household use or consumption, provided that this sub-clause will not apply if the Customer establishes that reliance on it would not be fair and reasonable;

(b) liability for breach of a guarantee conferred by the Australian Consumer Law (under the Competition and Consumer Act 2010 (Cth)), other than those conferred by ss 51-53 of that Law is limited:

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

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

(B) the repair of the goods; or

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

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

(A) the supplying of the services again; or

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

12. Liability of AssetFuture

12.1. Except in relation to:

(a) liability for personal injury or death;

(b) liability referred to in the preceding clause 11; and

(c) liability for AssetFuture’s breach of these Terms and Conditions (which Customer agrees shall be limited, for all claims in aggregate, to paying an amount equal to a monthly Charge paid by Customer applicable to the month in which the first claimed breach occurred),

AssetFuture shall be under no liability to Customer in respect of any loss or damage (including loss of profits, loss of goodwill, loss of data and any special, indirect or consequential loss or damage) which may be suffered or incurred or which may arise directly or indirectly in any way in connection with these Terms and Conditions (including in respect of goods or services supplied pursuant to these Terms and Conditions).

12.2. Without limiting the following sentence, Customer warrants that it has not relied on any representation made by AssetFuture which has not been stated expressly in these Terms and Conditions, the Order Form and Service Levels, or upon any descriptions, illustrations or specifications in any way relating to the Services including catalogues, website or publicity material produced by AssetFuture. Customer acknowledges that to the extent AssetFuture has made any representation which is not otherwise expressly stated in these Terms and Conditions, the Order Form and Service Levels, Customer has been provided with an opportunity to independently verify the accuracy of that representation.

12.3. Customer shall at all times indemnify and hold harmless AssetFuture and its officers, employees, contractors and agents (those indemnified) from and against any loss (including legal costs and expenses and liability) incurred or suffered by any of those indemnified arising from any claims against those indemnified where such loss or liability was caused by a breach by Customer of its obligations under these Terms and Conditions or any wilful, unlawful or negligent act or omission of Customer.

12.4. In respect of any claim between the parties under or in connection with these Terms and Conditions, the parties agree that to the maximum extent permitted by law, these Terms and Conditions excludes the operation of any laws which would apportion any liability to AssetFuture which would not have been so apportioned but for such laws.

13. termination

13.1. Without limiting the generality of any other clause in these Terms and Conditions, AssetFuture may terminate these Terms and Conditions or suspend performance of its obligations under these Terms and Conditions (for such period as AssetFuture specified) immediately by notice in writing if:

(a) Customer is in breach of any term of these Terms and Conditions and such breach is not remedied within seven (7) days of it notifying AssetFuture;

(b) Customer becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration;

(d) Customer, being a natural person, dies; or

(e) Customer ceases or threatens to cease conducting its business in the normal manner.

13.2. If any of the circumstances referred to (a)-(e) of the preceding subclause occur, Customer shall, if requested by AssetFuture, comply with AssetFuture’s requirement for AssetFuture (in addition to terminating these Terms and Conditions) to:

(a) repossess any of its property in the possession, custody or control of Customer;

(b) retain any moneys paid;

(d) be regarded as discharged from any further obligations under these Terms and Conditions; and

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

13.3. Customer agrees that on expiry or termination of these Terms and Conditions for any reason, all of its rights in respect of the Services (including its right to access the Application) shall end.

13.4. If Customer requests, and subject to Customer having discharged all of its obligations under these Terms and Conditions, AssetFuture shall, within one (1) month after termination or expiry of these Terms and Conditions, provide Customer with a file containing Customer Data.

13.5. Customer agrees and acknowledges that AssetFuture has no obligation to retain any information relating to Customer (including Customer Data) and that all such information may be irretrievably deleted by AssetFuture after one (I) month from the date of any suspension, termination or expiry of these Terms and Conditions.

13.6 Customer may at any time and for its sole convenience and without penalty, terminate these Terms and Conditions by providing 30 days’ written notice to AssetFuture. If the Customer terminates these Terms and Conditions during the Initial Term pursuant to this clause 17.5, then the Customer must pay AssetFuture for any Charges payable for the period from the date of termination until the end of the Initial Term that remains unpaid. This condition should apply to any subsequent terms.

14. Force Majeure

14.1. AssetFuture shall not be liable for any delay or failure to perform its obligations under these Terms and Conditions if such delay is due to Force Majeure. If a delay or failure is caused or anticipated due to Force Majeure, AssetFuture’s obligations will be suspended. If a delay or failure by AssetFuture to perform its obligations due to Force Majeure exceeds sixty (60) days, AssetFuture may immediately terminate the Agreement on providing notice in writing to Customer.

14.2. If these Terms and Conditions are terminated pursuant to the preceding subclause, AssetFuture is not liable to refund any moneys paid by Customer pursuant to these Terms and Conditions.

15. Dispute Resolution

15.1. Neither party shall commence court proceedings to seek resolution of a dispute under these Terms and Conditions without first attempting by alternative means to resolve the dispute in accordance with this Clause 15.

15.2. Notice of a dispute under these Terms and Conditions must be given in writing by one party to the other, stating the issues that are in dispute (the “Dispute”) and naming a representative to whom the disputing party gives authority to negotiate and settle the Dispute. The other party must respond to such notice within seven (7) business days of receipt of same and name a representative with authority to negotiate and settle the Dispute on its behalf.

15.3. Within fourteen (14) calendar days of the second party notifying the first of its representative, the parties must act in good faith to resolve the Dispute. The terms of any settlement reached are to be recorded in writing and signed by each representative and will be binding on the parties.

15.4. Should the Dispute not be resolved within the time period specified in Clause 18.3 either party is at liberty to commence litigation

16. Entire Agreement

These Terms and Conditions, the Order Form and Service Levels constitutes the entire Agreement between the parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing.

17. assignment and novation

The benefit of these Terms and Conditions, the Order Form and Service Levels shall not be assigned by Customer without AssetFuture’s written consent. A change in control of or affecting Customer shall be deemed to be an assignment, with ‘control’ referring to the power to materially influence Customer’s decision making or policies.

18. waiver and variation

18.1. No right under these Terms and Conditions shall be deemed to be waived except by notice in writing signed by each party. A waiver by AssetFuture will not prejudice its rights in respect of any subsequent breach of the Agreement by Customer. Any failure by AssetFuture to enforce any clause of these Terms and Conditions, or any forbearance, delay or indulgence granted by AssetFuture to Customer, will not be construed as a waiver of AssetFuture’s rights under these Terms and Conditions.

18.2. The provisions of these Terms and Condition, the Order Form and Service Levels will not be varied, except by agreement in writing signed by the parties.

19. Severability

If any provision of these Terms and Condition, the Order Form and Service Levels is held invalid, unenforceable or illegal for any reason, the Terms and Conditions shall remain otherwise in full force apart from such provisions which shall be deemed read down to the extent reasonably appropriate to remove the invalidity, unenforceability or illegality.

20. Governing Law

These Terms and Conditions, the Order Form and Service Levels will be governed by and construed according to the law of the State of New South Wales, Australia.

21. Notices

21.1. Notices under these Terms and Conditions may be delivered by hand, by mail or by email to the addresses specified in The Order Form.

21.2. Notice will be deemed given:

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

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

(c) in the case of email, at the time of receipt of the email, namely when that email enters the receiving party’s information system (if received on a business day, or otherwise at the commencement of the first business day following that receipt).

22. Execution

These Terms and Conditions are executed by the Customers authorised person signing the Order Form and may be executed in counterparts by the respective parties, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement, provided that these Terms and Conditions shall be of no force and effect until the counterparts are exchanged.