Software Agreement And Support Agreement
DO NOT USE THE SOFTWARE TO WHICH THIS AGREEMENT RELATES UNTIL YOU HAVE READ AND ACCEPTED ALL THE TERMS OF THIS AGREEMENT AND WISH TO BECOME A USER OF THE SOFTWARE. ACCEPTANCE OF THE TERMS AND CONDITIONS WILL BIND YOU, AS A USER, TO THE TERMS OF THIS AGREEMENT. CLICKING ON THE “I ACCEPT” BUTTON WILL BE DEEMED TO BE YOUR ACCEPTANCE OF THE FOLLOWING TERMS.
IF YOU ARE AGREEING TO THESE TERMS ON BEHALF OF YOUR ORGANISATION, YOU ARE REPRESENTING TO US THAT YOU HAVE READ THESE TERMS, YOU HAVE THE AUTHORITY TO BIND YOUR ORGANISATION AND THE TERM “YOU” SHALL REFER TO YOUR ORGANISATION AND ITS EMPLOYEES INCLUDING CONTRACTORS WORKING FOR YOU WHERE YOU GIVE THEM ACCESS TO THE SOFTWARE.
IF YOU DO NOT HAVE SUCH AUTHORITY OR YOU DO NOT AGREE TO THESE TERMS, YOU ARE NOT PERMITTED TO USE ANY OF RISKTOOLS SOFTWARE OR RELATED CONSULTANCY. YOU MUST BE AT LEAST 18 YEARS OF AGE TO PURCHASE OR USE THE RISKTOOLS SERVICE OR PROFESSIONAL SERVICES.
General Terms and Conditions
1. The Agreement
- This Agreement is made between RiskTools Pty Ltd (RISKTOOLS) (ABN 48 109 447 618) of 21 Darmody Street, Weetangera in the Australian Capital Territory Australia and the User.
- This Agreement entitles the User to:
- use the Software in accordance with the provisions of Clause 2 of this Agreement:
- professional services;
- receive RISKTOOLS bulletin reports of errors updates;
- receive information on upgraded versions of the Software at such cost (if any) as may be notified to the User.
- For the purposes of this Agreement:
- “upgraded versions of the Software” will mean enhancements, improvements or modifications to the Software.
- The terms and conditions of this Agreement are deemed to be accepted by the parties as follows:
- by RISKTOOLS receiving funds and sending information to enable the User to access the software
- by the User by Using the Software.
2. Use of Software
- For the purposes of this Agreement, “Use” will mean
- Using the Software
- utilizing (but not copying) the instructional and/or
operational manuals relating to the Software.
3. Agreement Fee And Support Charges
- The Subscription Fee specified on the RISKTOOLS website or in the relevant RISKTOOLS documentation is payable in advance unless otherwise agreed in writing by RISKTOOLS.
- Annual Subscription Fees may be subject to annual review upon thirty (30) days prior written notice from
RISKTOOLS. Such reviewed fee will take effect on expiry of the period of notice, unless the User has notified RISKTOOLS within such notice period that it wishes to terminate this Agreement.
- All charges subscription fees are inclusive of Australian GST but exclusive of any other taxes, duties or such other additional sums including, but without prejudice to the foregoing generality, value added/purchase tax, excise tax, (tax on sales, property or use), import or other duties, and whether levied in respect of this Agreement, the Software, its use or otherwise.
- Professional service charges may also be subject to review as specified in (b) above
- The professional service charges payable in terms of this Agreement are based on services provided during normal working hours (0900-1730) (Australian Eastern Standard Time) Monday to Friday, excluding public holidays. Additional or out-of-hours support is subject to a higher charge.
- The following items do not include GST:
- the professional service charges payable by the User; or
- any other Taxable Supply made or provided by RISKTOOLS to the User, whether or not in accordance with the Agreement.
- In addition to the amounts payable in respect of any one or more of the amounts in clause 3(f), the User
must pay, to RISKTOOLS, GST on those amounts, as indicated in a Tax Invoice.
- RISKTOOLS will provide a Tax Invoice to the User on or before the time that GST is payable in accordance with clause 3 of the Agreement.
- GST is payable to RISKTOOLS by the User at the same time as the User pays the amounts in clause 3(f) to RISKTOOLS.
- If the User fails to remit GST to RISKTOOLS as otherwise required by the Agreement the User will indemnify RISKTOOLS in relation to the GST that the User failed to remit.
- In this clause:
- “Support Charges” means the charges specified in the documentation issued by RISKTOOLS;
- “Tax Invoice” has the same meaning as in the A New Tax System (A Goods and Services Tax) Act 1999 (Cth); and
- “GST” has the same meaning as in the A New Tax System (A Goods and Services Tax) Act 1999 (Cth).
4. Software Enhancement and Other Services
- RISKTOOLS offers support and enhancement of the Software in accordance with the provisions of this Agreement and the RISKTOOLS documentation. RISKTOOLS will provide support to the User if specified in the RISKTOOLS documentation.
- Where the Software is dependent on another software or mother products, the User cannot have support services in respect of the Software without also having such services with respect to the software or other product upon which it depends.
- RISKTOOLS shall charge for services requested by the User which are not specifically covered by this Agreement.
5. User’s Undertakings
- The User undertakes not to perform any of the acts referred to in this sub clause (a) except to the extent and only to the extent permitted by the applicable law to the User as a lawful user (i.e. a party with an express right to use) of the Software and only then for the specific limited purposes stated in such applicable
law or hereunder. The User undertakes:
- not to copy the Software nor otherwise reproduce the same;
- not to translate, adapt, vary, or modify the Software;
- not to disassemble, decompile or reverse engineer the Software;
- not to rent, lease or transfer the Software to any other person, whether on a permanent or temporary basis;
- not to permit any person, whether a competitor of RISKTOOLS or otherwise, to use or demonstrate the Software for any reason, including for the purposes of improving any product or selling any product to any person without the express permission in writing of RISKTOOLS;
6. RISKTOOLS’s Liability
- RISKTOOLS WILL NOT BE LIABLE TO THE USER FOR ANY LOSS OR DAMAGE WHATSOEVER OR HOWSOEVER CAUSED ARISING DIRECTLY OR INDIRECTLY IN CONNECTION WITH THIS AGREEMENT, THE SOFTWARE, ITS USE OR OTHERWISE, EXCEPT TO THE EXTENT TO WHICH IT IS UNLAWFUL TO EXCLUDE SUCH LIABILITY UNDER THE APPLICABLE LAW.
- NOTWITHSTANDING THE GENERALITY OF (a) ABOVE, RISKTOOLS EXPRESSLY EXCLUDES LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGE WHICH MAY ARISE IN RESPECT OF THE SOFTWARE, ITS USE OR IN RESPECT OF EQUIPMENT OR PROPERTY, OR FOR LOSS OF PROFIT, BUSINESS, REVENUE, GOODWILL OR ANTICIPATED SAVINGS.
- IN THE EVENT THAT ANY EXCLUSION CONTAINED IN THIS AGREEMENT WILL BE HELD TO BE INVALID FOR ANY REASON AND RISKTOOLS BECOMES LIABLE FOR LOSS OR DAMAGE THAT MAY LAWFULLY BE LIMITED, SUCH LIABILITY WILL BE LIMITED TO THE ANNUAL, MONTHLY OR ONE-TIME AGREEMENT FEE AS THE CASE MAY BE.
- ISKTOOLS DOES NOT EXCLUDE LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT ONLY THAT THE SAME ARISES AS A RESULT OF THE NEGLIGENCE OF RISKTOOLS, ITS EMPLOYEES, AGENTS OR AUTHORIZED REPRESENTATIVES.
- NOTWITHSTANDING ANY OTHER PROVISIONS CONTAINED HEREIN, WHERE ANY ACT OF PARLIAMENT IMPLIES ANY TERM INTO THIS AGREEMENT, AND THAT ACT AVOIDS OR PROHIBITS PROVISIONS IN A CONTRACT EXCLUDING OR MODIFYING SUCH TERM, THAT TERM WILL BE DEEMED TO BE INCLUDED IN THIS AGREEMENT, BUT RISKTOOLS’S LIABILITY FOR A BREACH OF THAT TERM IS LIMITED IN ONE OR MORE OF THE WAYS (AT RISKTOOLS’S OPTION) PERMITTED BY SECTION 68A(1) OF THE TRADE PRACTICES ACT 1974 (CTH).
7. Copyright, Patents, Trade Marks and Other Intellectual Property Rights
- The User acknowledges that any and all of the copyright, trade marks, trade names, patents and other
intellectual property rights subsisting in or used in connection with the Software including all documentation and manuals relating thereto, are and will remain the sole property of RISKTOOLS. The User will not during or at any time after the expiry or termination of this Agreement in any way question or dispute the ownership by RISKTOOLS thereof.
- In the event that new inventions, designs or processes evolve in performance of or as a result of this Agreement, the User acknowledges that the same will be the property of RISKTOOLS unless otherwise agreed in writing by RISKTOOLS.
- The User will indemnify RISKTOOLS fully against all liabilities, costs and expenses which RISKTOOLS may incur as a result of work done in accordance with the User’s specifications involving infringement of any patent or other proprietary right.
- THE USER ACKNOWLEDGES THAT SOFTWARE IN GENERAL IS NOT ERROR-FREE AND AGREES THAT THE EXISTENCE OF SUCH ERRORS WILL NOT CONSTITUTE A BREACH OF THIS AGREEMENT.
- IN THE EVENT THAT THE USER DISCOVERS A MATERIAL ERROR WHICH SUBSTANTIALLY AFFECTS THE USER’S USE OF THE SAME AND NOTIFIES RISKTOOLS OF THE ERROR WITHIN 90 DAYS FROM THE DATE OF THIS AGREEMENT (THE “WARRANTY PERIOD”) RISKTOOLS WILL AT ITS SOLE OPTION EITHER REFUND THE AGREEMENT FEE OR USE ALL REASONABLE ENDEAVOURS TO CORRECT BY NEW RELEASE (AT ITS OPTION) THAT PART OF THE SOFTWARE WHICH DOES NOT SO COMPLY PROVIDED THAT SUCH NON-COMPLIANCE HAS NOT BEEN CAUSED BY ANY MODIFICATION, VARIATION OR ADDITION TO THE SOFTWARE NOT PERFORMED BY RISKTOOLS OR CAUSED BY ITS INCORRECT USE, ABUSE OR CORRUPTION OF THE SOFTWARE OR BY USE OF THE SOFTWARE WITH OTHER SOFTWARE OR ON EQUIPMENT WITH WHICH IT IS INCOMPATIBLE.
- SUBJECT TO CLAUSE 6(e) ABOVE AND EXCEPT AS OTHERWISE PROVIDED IN THIS CLAUSE AND TO THE EXTENT PERMITTED BY THE APPLICABLE LAW, RISKTOOLS DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE SOFTWARE, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
- RISKTOOLS agrees to indemnify and save harmless and defend at its own expense the User from and
against any and all claims of infringement of copyright, patents, trade marks, industrial designs, or other intellectual property rights affecting the Software PROVIDED THAT (i) the User will not have done, permitted or suffered to be done anything which may have been or become an infringement of any rights in any copyright, patent, trade mark or other rights as hereinbefore provided, and (ii) the User will have exercised a reasonable standard of care in protecting the same; failing which, the User will indemnify RISKTOOLS against all actions, proceedings, costs, claims and expenses incurred in respect thereof.
- The User undertakes to give RISKTOOLS prompt notice of any claim specified in (a) above that is made against the User and RISKTOOLS will have the right to defend any such claims and make settlements thereof at its own discretion and the User will give such assistance as RISKTOOLS may reasonably require to settle or oppose any such claims.
- In the event that any such infringement occurs or may occur, RISKTOOLS may at its sole option and expense:
- procure for the User the right to continue using the Software or infringing part thereof; or
- modify or amend the Software or infringing part thereof so that the same becomes non-infringing; or
- replace the Software or infringing part thereof by other software of similar capability; or
- repay to the User the Subscription Fee relating to the whole or the infringing part of the Software.
10. Confidential Information
- All information, data, drawings, specifications, documentation, software listings, source or object code which RISKTOOLS may have imparted and may from time to time impart to the User relating to the Software (other than the ideas and principles which underlie the Software) is proprietary and confidential (Confidential Information). The User will use the same solely in accordance with the provisions of this Agreement and will not at any time during or after expiry or termination of this Agreement, disclose the same, whether directly or indirectly, to any third party without RISKTOOLS’s prior written consent.
- The User will not itself or through any subsidiary, agent or third party use such Confidential Information to copy, reproduce, translate, adapt, vary, modify, decompile, disassemble or reverse engineer the Software nor will the User sell, lease, license, sub-license or otherwise deal with the Software or any part or parts or variations, modifications, copies, releases, versions or enhancements thereof or have any software or other program written or developed for itself based on any Confidential Information supplied to it by RISKTOOLS.
- The foregoing provisions will not prevent the disclosure or use by the User of any information which is or hereafter, through no fault of the User, becomes public knowledge or to the extent permitted by law.
- On termination or expiration of this Agreement, each party will return or destroy all Confidential Information obtained from the other party and copies thereof.
- Nothing in this Clause will prohibit or restrict RISKTOOLS’s right to provide the same or similar
products or services furnished hereunder to other parties. The User acknowledges and agrees that the
restrictions on Confidential Information contained in this Agreement will not apply to the general knowledge, skills and experience gained by RISKTOOLS or RISKTOOLS’s employees or contractors while engaged by the User.
11. Force Majeure
RISKTOOLS will be under no liability to the User in respect of anything which, apart from this provision, may constitute breach of this Agreement arising by reason of force majeure, namely, circumstances beyond the control of RISKTOOLS which will include (but will not be limited to) acts of war (declared or undeclared), terrorism, acts of God, perils of the sea or air, fire, flood, drought, explosion, sabotage, accident, embargo, riot, civil commotion, including acts of local government and parliamentary authority; inability to supply the Software, materials, breakdown of equipment and labour disputes of whatever nature and for whatever cause arising including (but without prejudice to the generality of the foregoing) work to rule, overtime bars, strikes and lockouts and whether between either of the parties hereto and any or all of its employees and/or any other employer and any or all of its employees and/or between any two or more groups of employees (and whether of either of the parties hereto or any other employer).
- In addition to provisions for termination as herein
provided, RISKTOOLS may by notice in writing to the
User terminate this Agreement if any of the following
events will occur:
- if the User is in breach of any term, condition or provision of this Agreement or required by the applicable law and fails to remedy such breach (if capable of remedy) within 30 days of having received written notice of such breach from RISKTOOLS;
- if the User enters into any form of insolvency administration, including liquidation, bankruptcy, receivership, voluntary administration or otherwise.
- Upon termination, the User will pay to RISKTOOLS all costs and expenses, including legal and other fees
incurred and all arrears of fees, charges or other payments arising in respect of the Software, professional services, this Agreement or otherwise.
- Termination, howsoever or whenever occasioned will be subject to any rights and remedies RISKTOOLS may have under this Agreement or in law.
- Upon termination or expiration of this Agreement, the following provisions will survive: Clauses 5, 6, 7, 8, 9 and 10.
The User will not assign or otherwise transfer all or part of the Software or this Agreement without the prior written consent of RISKTOOLS.
Failure or neglect by RISKTOOLS to enforce at any time any of the provisions hereof will not be construed nor will be deemed to be a waiver of RISKTOOLS’s rights hereunder nor in any way affect the validity of the whole or any part of this Agreement nor prejudice RISKTOOLS’s rights to take subsequent action.
The headings of the terms and conditions herein contained are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of any of the terms and conditions of this Agreement.
In the event that any of these terms, conditions or provisions will be determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
Any notice to be given by either party to the other may be sent by recorded delivery to the address of the other party as appearing herein or such other address as such party may from time to time have communicated to the other in writing and if so sent will be deemed to be served 5 days following the date of posting.
This Agreement will be exclusively governed by, and interpreted in accordance with, the law in force in the Australian Capital Territory, Australia.
- If Support is to be provided by RISKTOOLS under this Agreement, the Support will include:
- Online Help facilities by way of email;
- Out-of-hours support shall be provided by RISKTOOLS at such additional cost to be advised by RISKTOOLS at the time of the request for support;
- correction of critical errors or assistance to overcome problems. RISKTOOLS may, in its sole discretion, correct errors by a new version; and
- information on availability of new versions of
20. Support which is not included
- If Support is to be provided by RISKTOOLS in
accordance with clause 19, the following support is not
Included in the Agreement and, accordingly separate
charges will apply:
- support of other software, accessories, attachments, machines, systems or other devices not supplied by RISKTOOLS;
- rectification of lost or corrupted data arising for any reason other than RISKTOOLS’s own negligence;
- support rendered more difficult because of any changes, alterations, additions, modifications or variations to the Software or the System or operating environment;
- attendance to faults caused by using the Software outside design or other specifications or outside the provisions laid down in any documentation or manual supplied with the Software; or caused by operator error or omission;
- diagnosis and/or rectification of problems not associated with the Software.