Terms & Conditions
Terms & Conditions
Last Updated 29 May, 2019
Red Arc integration products provide an integration connection between two services. They enable the transfer of specific data between the systems, in defined ways in order for these two systems to communicate with each other and facilitate a connected system.
By using Red Arc integration products you agree to be bound by these Terms.
1.1 Definitions: In the Agreement, the following terms have the stated meaning:
|Agreement||these terms and conditions.|
|Confidential Information||the terms of the Agreement and any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, the Agreement. The Supplier’s Confidential Information includes Intellectual Property owned by the Supplier (or its licensors), including the [insert name] Software. The Client’s Confidential Information includes the Data.|
|Data||all data, content, and information (including Personal Information) owned, held, used or created by or on behalf of the Client that is stored using, or inputted into, the Services.|
|End Date||the end date set out in the Key Details.|
|Fees||the fees set out in the Key Details, as updated from time to time in accordance with clause 5.4.|
an event that is beyond the reasonable control of a party, excluding:
|Intellectual Property Rights||includes copyright and all rights existing anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trade marks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity. Intellectual Property has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property.|
|Objectionable||includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way.|
|Payment Terms||the payment terms set out in the proposal document (if any).|
|Personal Information||has the meaning given in the Privacy Act 1993.|
|Related Services||any related service described in the Key Details and any further services that the Supplier agrees to provide to the Client under the Agreement.|
|SaaS Service||the service having the core functionality described in the Key Details. [The SaaS Service is described in more detail on the Website, as the Website is updated from time to time.]|
|Services||the SaaS Service and any Related Service.|
|Start Date||the start date set out in the Proposal Document|
|Underlying Systems||the Red Arc Software, IT solutions, systems and networks (including software and hardware) used to provide the Services, including any third party solutions, systems and networks.|
|Website||the internet site at the domain set out in the Proposal Document, or such other site notified to the Client by the Supplier.|
|Year||a 12 month period starting on the Start Date or the anniversary of that date.|
1.2 Interpretation: In the Agreement:
a. clause and other headings are for ease of reference only and do not affect the interpretation of the Agreement;
b. words in the singular include the plural and vice versa;
c. a reference to:
i. a party to the Agreement includes that party’s permitted assigns;
ii. personnel includes officers, employees, contractors and agents, but a reference to the Client’s personnel does not include the Supplier;
iii. a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity;
iv. including and similar words do not imply any limit; and
v. a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them;
d. no term of the Agreement is to be read against a party because the term was first proposed or drafted by that party; and
e. if there is any conflict between Section B and Section A of the Agreement, Section B prevails unless expressly stated otherwise in Section A.
2.1 General: The Supplier must use reasonable efforts to provide the Services:
a. in accordance with the Agreement and NSW law;
b. exercising reasonable care, skill and diligence; and
c. using suitably skilled, experienced and qualified personnel.
3. Client Obligations
3.1 General use: The Client and its personnel must:
a. use the Services in accordance with the Agreement solely for:
i. the Client’s own internal business purposes; and
ii. lawful purposes (including complying with the Unsolicited Electronic Messages Act 2007); and
b. not resell or make available the Services to any third party, or otherwise commercially exploit the Services.
4.1 Supplier access to Data:
a. The Client acknowledges that:
i. the Supplier may require access to the Data to exercise its rights and perform its obligations under the Agreement; and
ii. to the extent that this is necessary but subject to clause 7, the Supplier may authorise a member or members of its personnel to access the Data for this purpose.
b. The Client must arrange all consents and approvals that are necessary for the Supplier to access the Data as described in clause 4.1a.
5.1 Fees: The Client must pay to the Supplier the Fees.
6. Intellectual Property
a. Subject to clause 6.1b, title to, and all Intellectual Property Rights in, the Services, the Website, and all Underlying Systems is and remains the property of the Supplier (and its licensors). The Client must not contest or dispute that ownership, or the validity of those Intellectual Property Rights.
b. Title to, and all Intellectual Property Rights in, the Data (as between the parties) remains the property of the Client. The Client grants the Supplier a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate the Data for any purpose in connection with the exercise of its rights and performance of its obligations in accordance with the Agreement.
7.1 Security: Each party must, unless it has the prior written consent of the other party:
a. keep confidential at all times the Confidential Information of the other party;
b. effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorised access or use; and
c. disclose the other party’s Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party’s Confidential Information is aware of, and complies with, the provisions of clauses 7.1a and 7.1b.
8.1 Mutual warranties: Each party warrants that it has full power and authority to enter into and perform its obligations under the Agreement which, when signed, will constitute binding obligations on the warranting party.
8.2 No implied warranties: To the maximum extent permitted by law:
a. the Supplier’s warranties are limited to those set out in the Agreement, and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise (including any warranty under Part 3 of the Contract and Commercial Law Act 2017) are expressly excluded and, to the extent that they cannot be excluded, liability for them is limited to AUD 1,000.00; and
b. the Supplier makes no representation concerning the quality of the Services and does not promise that the Services will:
i. meet the Client’s requirements or be suitable for a particular purpose
ii. be secure, free of viruses or other harmful code, uninterrupted or error free.
9.1 Maximum liability: The maximum aggregate liability of the Supplier under or in connection with the Agreement or relating to the Services, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not in any Year exceed [insert cap e.g. an amount equal to the Fees paid by the Client under the Agreement in the previous Year (which in the first Year is deemed to be the total Fees paid by the Client from the Start Date to the date of the first event giving rise to liability)]. The cap in this clause 9.1 includes the cap set out in clause 8.2a.
10. Term, Termination and Suspension
10.1 Duration: Unless terminated under this clause 10, the Agreement:
a. starts on the Start Date and ends on the End Date; but
b. where no End Date is set out in the Key Details, continues for successive terms of 12 months from the Start Date unless a party gives 60 days notice that the Agreement will terminate on the expiry of the then-current term.
10.2 Termination rights:
a. Either party may, by notice to the other party, immediately terminate the Agreement if the other party:
i. breaches any material provision of the Agreement and the breach is not:
- remedied within 10 days of the receipt of a notice from the first party requiring it to remedy the breach; or
- capable of being remedied;
ii. becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason; or
iii. is unable to perform a material obligation under the Agreement for 30 days or more due to Force Majeure.
b. If the remedies in clause 6.5c are exhausted without remedying or settling the IP Claim, the Supplier may, by notice to the Client, immediately terminate the Agreement.
10.3 Consequences of termination or expiry:
a. Termination or expiry of the Agreement does not affect either party’s rights and obligations that accrued before that termination or expiry.
b. On termination or expiry of the Agreement, the Client must pay all Fees for Services provided prior to that termination or expiry.
c. Except to the extent that a party has ongoing rights to use Confidential Information, at the other party’s request following termination or expiry of the Agreement and subject to clause 10.4d, a party must promptly return to the other party or destroy all Confidential Information of the other party that is in the first party’s possession or control.
d. At any time prior to one month after the date of termination or expiry, the Client may request:
i. a copy of any Data stored using the SaaS Service, provided that the Client pays the Supplier’s reasonable costs of providing that copy. On receipt of that request, the Supplier must provide a copy of the Data in a common electronic form. The Supplier does not warrant that the format of the Data will be compatible with any software; and/or
ii. deletion of the Data stored using the SaaS Service, in which case the Supplier must use reasonable efforts to promptly delete that Data.
To avoid doubt, the Supplier is not required to comply with clause 10.4di to the extent that the Client previously requested deletion of the Data.
10.4 Obligations continuing: Clauses which, by their nature, are intended to survive termination or expiry of the Agreement, including clauses 4.6, 6, 7, 9, 10.4, 10.5 and 11, continue in force.
10.5 Rights to restrict: Without limiting any other right or remedy available to the Supplier, the Supplier may restrict or suspend the Client’s access to the SaaS Service and/or delete, edit or remove the relevant Data if the Supplier considers that the Client (including any of its personnel) has:
a. undermined, or attempted to undermine, the security or integrity of the SaaS Service or any Underlying Systems;
b. used, or attempted to use, the SaaS Service:
i. for improper purposes; or
ii. in a manner, other than for normal operational purposes, that materially reduces the operational performance of the SaaS Service;
c. transmitted, inputted or stored any Data that breaches or may breach the Agreement or any third party right (including Intellectual Property Rights and privacy rights), or that is or may be Objectionable, incorrect or misleading; or
d. otherwise materially breached the Agreement.
a. The Supplier must notify the Client where it restricts or suspends the Client’s access, or deletes, edits or removes Data, under clause 10.6.
b. Clause 10.4di will not apply to the extent that it relates to Data deleted or removed under clause 10.6.
11.1 Good faith negotiations: Before taking any court action, a party must use best efforts to resolve any dispute under, or in connection with, the Agreement through good faith negotiations.
11.2 Obligations continue: Each party must, to the extent possible, continue to perform its obligations under the Agreement even if there is a dispute.
11.3 Right to seek relief: This clause 11 does not affect either party’s right to seek urgent interlocutory and/or injunctive relief.
12.1 Force Majeure: Neither party is liable to the other for any failure to perform its obligations under the Agreement to the extent caused by Force Majeure, provided that the affected party:
a. immediately notifies the other party and provides full information about the Force Majeure;
b. uses best efforts to overcome the Force Majeure; and
c. continues to perform its obligations to the extent practicable.
12.2 Rights of third parties: No person other than the Supplier and the Client has any right to a benefit under, or to enforce, the Agreement.
12.3 Waiver: To waive a right under the Agreement, that waiver must be in writing and signed by the waiving party.
12.4 Independent contractor: Subject to clause 4.3, the Supplier is an independent contractor of the Client, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under the Agreement.
12.5 Notices: A notice given by a party under the Agreement must be delivered to the other party via email using the email address set out in the Key Details or otherwise notified by the other party for this purpose. If the notice is a notice of termination, a copy of that email must be immediately delivered (by hand or courier) to the Chief Executive or equivalent officer of the other party at the other party’s last known physical address.
a. If any provision of the Agreement is, or becomes, illegal, unenforceable or invalid, the relevant provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity.
b. If modification under clause 12.6a is not possible, the provision must be treated for all purposes as severed from the Agreement without affecting the legality, enforceability or validity of the remaining provisions of the Agreement.
12.7 Variation: Subject to clause 5.4, any variation to the Agreement must be in writing and signed by both parties.
12.8 Entire agreement: The Agreement sets out everything agreed by the parties relating to the Services, and supersedes and cancels anything discussed, exchanged or agreed prior to the Start Date. The parties have not relied on any representation, warranty or agreement relating to the subject matter of the Agreement that is not expressly set out in the Agreement, and no such representation, warranty or agreement has any effect from the Start Date. Without limiting the previous sentence, the parties agree to contract out of sections 9, 12A and 13 of the Fair Trading Act 1986, and that it is fair and reasonable that the parties are bound by this clause 12.8.
12.9 Subcontracting and assignment:
a. The Client may not assign, novate, subcontract or transfer any right or obligation under the Agreement without the prior written consent of the Supplier, that consent not to be unreasonably withheld. The Client remains liable for its obligations under the Agreement despite any approved assignment, subcontracting or transfer. Any assignment, novation, subcontracting or transfer must be in writing.
b. Any change of control of the Client is deemed to be an assignment for which the Supplier’s prior written consent is required under clause 12.9a. In this clause change of control means any transfer of shares or other arrangement affecting the Client or any member of its group which results in a change in the effective control of the Client.
12.10 Law: These Terms and Conditions are governed by the laws of the state of New South Wales, Australia, and you irrevocably submit to the exclusive jurisdiction of the courts of the State of New South Wales;
12.11 Counterparts: The Agreement may be signed in counterparts, each of which constitutes an original and all of which constitute the same agreement. A party may enter the Agreement by signing and emailing a counterpart copy to the other party.