SaaS – Licence Terms – TELLEC Access

 

These Terms are our offer to make the Software and Software Services available to you and constitute our Agreement with you.

(a) You accept this Agreement where after receiving a copy of these Terms you:

    (i) gain or are provided Access to the Software; or

    (ii) otherwise indicate to us, whether directly or indirectly, that you accept the Agreement.

 

(b) Any person that accepts this Agreement on your behalf represents and warrants to us that:

    (i) they are duly authorised to accept this Agreement and to bind you to this Agreement; and

    (ii) to the extent they purport to accept this Agreement on your behalf and are not duly authorised to do so, that person will be liable in their personal capacity and will indemnify us against any Loss suffered because of such purported acceptance.

(a) We may, from time to time:

    (i) update the Software or a part of it; and

    (ii) make modifications to the Services and the Software (provided such variations do not limit your rights under this Agreement).

 

We may at our discretion make User Documentation available to you containing information regarding the Software and our Services.  Where we do so, you agree that you will only use the Software in accordance with the directions or instructions provided in the User Documentation.

 

You must provide us with all information and co-operation reasonably necessary to enable us to perform our obligations under this Agreement.

(a) In order to Access the Software you and your Users will require an Account.

(b) You must not, and must ensure that none of your Users:
    (i) create an Account on behalf of any other person, or provide false or misleading information when establishing an Account; or
    (ii) disclose their password or any other information relating to their Account that would enable access to their Account.

(c) You must notify us immediately in the event of any known or suspected unauthorised use of an Account, or any known or suspected breach of security, including loss, theft or unauthorised disclosure of a password.

(d) You acknowledge and agree that our delivery of the Software Services via the Software is contingent upon you and each User having a valid Microsoft365 account. If you or any User does not have a valid Account:
    (i) the Services may not be able to be provided, or if they are provided may be adversely affected; and
    (ii) we will not be liable to you for any Loss suffered due to the Services not being provided.

(a) You are responsible for storing and backing up all Data. Unless we have expressly indicated that we will provide back-up services, we will not retain copies of any of the Data that you make available to us.

(b) You are responsible for obtaining all relevant consents from, and providing all relevant notices to, individuals whose Personal Information is accessed during use of the Software to ensure that our dealings with that information pursuant to this Agreement comply with our obligations under any privacy laws.

(c) Your warrant that the disclosure of Personal Information to us for the purposes of this Agreement, and the collection of such information by the Software or us, will not contravene the Australian Privacy Principles.

(d) The parties agree to use their best endeavours to cooperate and take all reasonable steps to contain any suspected or known data breach.

(e) You acknowledge that you may share obligations with us in relation to the Services under the Notifiable Data Breaches (NDB) Scheme pursuant to the Privacy Act 1988 (Cth). Under this Agreement, an “eligible data breach” has the meaning given in section 26WE of the Privacy Act.

(f) The parties mutually agree that all eligible data breaches related to the Services or the Software, whether you are an entity covered by the NDB scheme, will be notified to the Australian Information Commissioner and to affected individuals in the manner prescribed by the NDB Scheme.

(g) If either of the parties becomes aware that a suspected or known eligible data breach has, or may have, occurred in relation to the Services or the Software, it must:
    (i) Notify the other party by email as soon as it becomes aware of the known or suspected data breach; and
    (ii) Confirm the full details the full details of the known or suspected data breach by written notice to the other party as soon as is reasonably practicable.

You are solely responsible for obtaining and maintaining all Systems needed to connect to, Access or Use the Software and to receive the Services.

You represent and warrant that:

(a) you have the right to provide us with all Data that you make available to us through the Software;

 

(b) you have the capacity and authority to enter this Agreement and to perform all your obligations under it; and

 

(c) the terms of this Agreement have been accepted by you or by a duly authorised representative of yours and accordingly the terms of this Agreement legally bind you.

You acknowledge and agree that:
(a) computer and telecommunications services are not fault free and occasional periods of downtime may occur;

(b) the availability of the Software Services is dependent upon the availability of Microsoft365 and that any downtime in Microsoft365 (or any other third party system on which the Software or the Software Services are dependent) will affect your ability to access the Software Services and you hereby release and hold us harmless in respect of any Loss that you suffer as a consequence thereof;

(c) we have not made any representations or warranties that the Software or the Software Services will be error free or available at all times without interruption;

(d) we do not represent or warrant that Data, information or documentation that is retrieved using the Software Services will be up to date, current or correct; and

(e) we may immediately suspend any or all Users’ Access to the Software without any liability or notice to you where we consider it necessary because:
    (i) a Claim is made alleging that the continued provision of the Software or any part of it infringes the rights of any person or any Law;
    (ii) we are reasonably of the view that either you or a User has breached or is likely to breach a provision of this Agreement; or
    (iii) any Fees that are due and payable in accordance with the terms of this Agreement have not been paid as and when they fall due.

(f) We may use the meta-data to compile reports and recommendations using a closed AI facility. No data or meta-data will be used to train public AI models.

 

We will:
(a) use appropriate security procedures to safeguard against unauthorised third-party access to the Software; and

(b) ensure that the Software and the Software Services will be provided in accordance with the provisions of this Agreement and all applicable Laws.

 

(a) For the purposes of this clause 7, if you have been engaged by a Reseller, references to us include references to the Reseller as the context requires.

(b) For the avoidance of doubt, any right of termination or suspension that arises as a consequence of your failure to make a payment of Fees, will arise equally with respect to your failure to make a payment of fees to the Reseller.

(c) All indemnities and releases that you provide in our favour in respect of any Claim or Loss that you suffer as the result of our exercise of a right of termination or suspension due to your failure to pay Fees, will apply equally to the extent we exercise our rights of termination or suspension due to your failure to pay Fees to a Reseller.

(d) In consideration of our grant of the Licence, providing Access to the Software and delivering the Software Services, you must pay us the Fees.

(e) Our Fees will be charged as an ongoing annual or monthly fee, payable in advance for continued access to the Software

(f) You acknowledge and agree that we may reasonably vary our Fees from time to time via notice to you and that any variation will become effective upon the commencement of the immediately following Rollover Period.

Any costs and reasonable out-of-pocket expenses which are necessary to provide Access to the Software or to deliver the Services (Expenses) will be paid or reimbursed (as the case may be) by you where we have received prior written approval from you. We will upon request, submit evidence verifying the Expenses that have been incurred.

If you fail to make payment of any amounts rightfully due and owing to us in accordance with this Agreement, we may:
(a) immediately suspend Access to the Software;

(b) charge interest on the overdue amount at the Default Rate as from the first day that payment is overdue; and

(c) charge you for all costs and expenses incurred by us in recovering our outstanding Fees from you, including legal fees (on a solicitor and own client basis) and court costs, which you agree to pay upon demand.

Unless otherwise expressly stated, all amounts under this Agreement are exclusive of GST. If GST is imposed on any supply made under or in connection with this Agreement and GST has not been accounted for in determining the consideration payable, we may recover the GST amount from you.

 

(a) Each party retains all right, title and interest in and to its pre-existing IPR’s.

(b) You acknowledge that we either own, or provide under licence, all IPR’s in the Software.

(c) Nothing in this Agreement affects the ownership of our Moral Rights in the Software, including our rights of attribution, authorship and integrity.

(d) You acknowledge that all IPR’s in any improvement, modification or alteration (Improvement) made to the Software vest in us, even where such Improvement has been undertaken at your request or instruction, including where you have paid for such Improvements.

(e) For the avoidance of doubt nothing in this Agreement prohibits us from using our IPR’s to provide services to third parties, even if such services are the same or substantially the same as those provided to you.

(f) You consent to us and/or our related companies, disclosing and publicising in any promotional or marketing materials, customer lists or business presentations, that you use TELLEC® and we provide or have provided you with the Services. In consenting to same, you grant us a limited licence to use your IPRs and branding for this purpose.

 

(a) A party will not without the prior written approval of the other party, disclose the other party’s Confidential Information.

(b) A party will not be in breach of 9(a) in circumstances where legally compelled to disclose the other party’s Confidential Information.

(c) Each party will take all reasonable steps to ensure that its Personnel do not make public or disclose the other party’s Confidential Information.

(d) Despite any other provision of this clause, a party may disclose the terms of this Agreement (other than Confidential Information of a technical nature) to its related companies, solicitors, auditors, insurers and accountants.

(e) This clause will survive the termination of this Agreement.

 

(a) If a dispute (Dispute) arises between the parties to this Agreement which they cannot resolve, then the party claiming that a Dispute has arisen must deliver to the other party a notice containing particulars of the Dispute (Dispute Notice).

(b) During the period of 10 Business Days after delivery of the Dispute Notice, or any longer period agreed in writing by the parties to the Dispute (Initial Period), the parties must meet in good faith in an attempt to resolve the Dispute.

(c) If the parties cannot resolve the Dispute within the Initial Period then unless they all agree otherwise, they must appoint a mediator to mediate the Dispute in accordance with the rules of the Resolution Institute. The parties must participate in the mediation in good faith.

(d) The mediator must be agreed on by the parties within 10 Business Days after the Dispute Notice is given to the parties.

(e) If the parties cannot agree within that time the mediator will be nominated by the president of the Resolution Institute.

(f) The mediation concludes when:
    (i) all the parties agree in writing on a resolution of the Dispute; or
    (ii) a party, not earlier than 20 Business Days after appointment of the mediator, has given 5 Business Days’ notice to the other parties and to the mediator, terminating the mediation, and that 5 Business Days has expired without all the parties agreeing in writing on a resolution of the issue.

 

(a) Either party may terminate this Agreement by written notice to the other (Termination Notice).

(b) Where a Termination Notice has been issued:
    (i) by us – termination will become effective at the conclusion of either the Initial Term or the then current Rollover Term (as the case may be); and
    (ii) by you – termination will become effective from the date you specify (which must be on or prior to the date of expiry of the Initial Term or then current Rollover Period). However, you acknowledge that you will not be entitled to a refund of any Fees if you elect to terminate prior to the expiry of the Initial Term or then current Rollover Period.

(a) If either party breaches any provision of this Agreement and such a breach is capable of rectification, the other party must give the defaulting party written notice requesting that the breach be rectified within 10 Business Days (Breach Notice).

(b) If a breach has not been rectified within 10 Business Days of the giving of a Breach Notice, the party giving the Breach Notice may terminate this Agreement immediately by notice in writing to the other.

(c) If any party breaches a material term and the breach is not capable of rectification, the other party may terminate this Agreement immediately by notice in writing to the party in breach.

Upon termination or expiry of this Agreement:

(a) you must pay all outstanding Fees, Expenses and any other payments due to us under or in connection with this Agreement; and

 

(b) any accrued rights or liabilities of a party will not be affected.

 

You acknowledge and agree that:

(a) the Software and Services are supplied on an “as available” basis;

 

(b) to the maximum extent permitted by Law, we exclude all liability for any Loss that you suffer as a result of any Data (including information or documents) returned by the Software Services being inaccurate, incomplete, out of date or unavailable; and

 

(c) to the maximum extent permissible at Law, we disclaim all liability and you fully release and hold us harmless from any Loss that you suffer as a consequence of your reliance on the Software Services or use of the Software, that results from your failure to take an appropriate level of diligence and care.

 

You agree to indemnify us and to keep us indemnified against any Loss that may be suffered by us arising from or in connection with (directly or indirectly):

(a) any breach or default by you or your Personnel of this Agreement (including any breach of warranty);

 

(b) misuse, misappropriation or unauthorized use of the Software or any part of it by you or your Personnel;

 

(c) a negligent act or omission by you or your Personnel; and

 

(d) your failure or the failure of your Personnel to comply with any Law.

 

(a) Neither party will be liable to the other whether in contract, tort (including negligence) or otherwise in connection with the Agreement, for loss or damage to the extent that the other party (or the other party’s Personnel) contributed to the loss or damage.

 

(b) Subject to clause 14(d), to the extent permitted by Law, neither party will be liable to the other party for any Consequential Loss suffered or incurred by the other party whether in contract, equity, tort (including negligence) or otherwise in connection with the Agreement even where the other party were appraised of the likelihood of such Loss occurring.

 

(c) Subject to clause 14(d), to the extent permitted by Law, our maximum liability to you, whether in contract, equity, tort (including negligence) or otherwise in connection with the Agreement (including under an indemnity) is the aggregate of our Fees that arose during the Initial Term.

 

(d) The exclusions and limitations of liability in clauses 14(b) and 14(c) do not apply to liability in relation to:

    (i) personal injury, including sickness and death;

    (ii) loss of, or damage to, tangible property; or

    (iii) any fraudulent act or omission of ours or that of our Personnel.

 

(e) A party who suffers Loss must use reasonable steps to mitigate its Loss. The other party will not be responsible for any Loss to the extent that the injured party could have avoided or reduced the amount of the Loss by taking reasonable steps to mitigate its Loss.

 

(f) Subject to sub clause 14(g), any condition, guarantee or warranty which would otherwise be implied in this Agreement is excluded.

 

(g) Liability for breach of a guarantee conferred by the Australian Consumer Law (other than those conferred by ss 51 to 53 of the Australian Consumer Law) is limited (at our election) to us providing the Services again or the payment of the cost of having the Services supplied again.

 

Any notice given under or in connection with this Agreement:

(a) must be in legible writing and in English;

 

(b) must be addressed to a party’s contact address as published on our website or as otherwise notified by a party to the other party from time to time;

 

(c) must be:

    (i) delivered to that party’s address;

    (ii) sent by prepaid mail to that party’s address; or

    (iii) sent by email to that party’s email address; and

 

(d) will be deemed to be received by the addressee:

    (i) if delivered by hand, at the time of delivery;

    (ii) if sent by post, on the third business day after the day on which it is posted, the first business day being the day of posting; or

     (iii) if sent by email, at the time that would be the time of receipt under the Electronic Transactions Act 1999 (Cth).

 

(a) Subject to clause 16(b), a party cannot assign, novate or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other party.

 

(b) You agree that if we merge or amalgamate with another company, business or otherwise sell or dispose of our business, we may:

     (i) transfer your matter, including all materials, personal information, confidential information and ideas supplied by you, to that other person, provided they agree to be bound on terms equivalent to those contained in this Agreement; and

     (ii) assign, novate or otherwise transfer any of our rights or obligations under this Agreement.

 

This Agreement may only be varied by a further written agreement signed by or on behalf of each of the parties.

Neither party will be liable for any delay or failure to perform its obligations pursuant to this Agreement if such delay is due to Force Majeure. If a delay or failure of a party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that party’s obligations will be suspended. If a delay or failure by a party to perform its obligations due to Force Majeure exceeds thirty (30) days, either party may immediately terminate this Agreement on providing Notice to the other party.

Unless this Agreement expressly states otherwise, a party may in its absolute discretion, give conditionally or unconditionally or withhold, any consent under this Agreement. To be effective any consent under this Agreement must be in writing.

This Agreement contains the entire agreement between the parties about its subject matter.  Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this Agreement and has no further effect.

Each party must promptly do all further acts and execute and deliver all further documents required by Law or reasonably requested by another party to give effect to this Agreement.

This Agreement is governed by the law in force in the State of Victoria, Australia and each party submits to the non-exclusive jurisdiction of the courts of Victoria and the courts competent to determine appeals from those courts, in relation to any proceedings that may be brought at any time relating to this Agreement.

 

Access means to provide a User with entry into an operational fully functioning version of the Software.
Acceptance Date means the date the agreement is accepted by you or on your behalf under clause 2.2.
Account means a user account with Microsoft365 (or such other provider as we advise from time to time) required in order for Users to Access the Software.
Agreement means this document and any schedules or annexures to it or contemplated by it.
Artificial Intelligence (AI) means the computer systems that use machine learning algorithms. These algorithms find complex patterns in data.
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Business Day means a day that is not a Saturday, Sunday or any other day that is a public holiday or bank holiday in the place where an act is to be performed or a payment is to be made.
Claim includes a demand, claim, action, dispute or proceeding made or brought by or against the person, however arising and whether present, unascertained, immediate, future or contingent.
Confidential Information means information that is by its nature confidential, including the Software, your business information, but does not include:
(a) Information already known to the receiving party at the time of disclosure by the other party;
(b) Information in the public domain other than because of disclosure by a party in breach of its obligations of confidentiality under this Agreement; or
(c) The fact that you use TELLEC® or that we provide Services to you.
Consequential Loss means indirect economic loss, loss of income or profit, loss or damages resulting from wasted management time, damage to goodwill or business reputation, loss of contract, loss of data, liability under other agreements or to third parties, loss of opportunity or any other special, indirect, remote or punitive loss or damage.
Copyright Act means the Copyright Act 1968 (Cth).
Corporations Act means the Corporations Act 2001 (Cth).
Data means all information accessed by, uploaded or collected by, the Software or by you.
Default Rate means 10% per annum accruing from and including the date that payment is one day overdue and ceasing to accrue on the date we receive payment in full of all overdue Fees and other amounts rightfully due and owing to it under the Agreement.
Fees mean the fees payable to us under this Agreement calculated in accordance with the quotation provided to you at the time of entry into this Agreement.
Force Majeure means any cause beyond the reasonable control of a party and which that party is unable to overcome by the exercise of reasonable diligence and at a reasonable cost, including an act of God, fire, earthquake, storm or flood, and the failure of third-party equipment, software, technology or other services necessary for the performance of a party’s obligations under this Agreement.
Initial Term means 12 months, or such date as quoted or varied in writing, from the date on which you are granted Access to the Software.
Insolvent means if a person is insolvent or an insolvent under administration, or has a controller appointed (each as defined in the Corporations Act), are in receivership, in receivership and management, in liquidation, in provisional liquidation, under administration, wound up, subject to any arrangement, assignment or composition, protected from creditors under any statute, dissolved (other than to carry out a reconstruction whilst solvent) or otherwise unable to pay debts when they fall due.
IPR’s include all copyright, trade mark, design, patents, software, database, semiconductor or circuit layout rights and other proprietary rights, and any rights to registration of such rights existing anywhere in the world, whether created before or after the date of the Agreement but excludes Moral Rights.
Law includes any requirement of any statute, rule, regulation, proclamation, ordinance or by-law, present or future, and whether state, federal or otherwise.
Licence means a revocable, worldwide, non- exclusive and non-transferable licence to Access and Use the Software.
Loss includes any damage, loss, cost, liability or expense of any kind and however arising (including as a result of any Claim) including penalties, fines and interest whether prospective or contingent and any amounts that for the time being are not ascertained or ascertainable.
Moral Right means moral rights as defined in the Copyright Act.
Personal Information means information or an opinion about an individual as defined in section 6 of the Privacy Act 1988 (Cth) which is collected, used, disclosed, stored or handled by a party for the purposes of this Agreement.
Personnel means officers, directors, employees, agents and contractors.
Reseller means a third party that we have engaged to sell the Software or provide Software Services to you on our behalf.
Rollover Period means further consecutive 12 months period arising:
(a) at the expiration of the Initial Term; and
(b) again in perpetuity on the expiry of each earlier Rollover Period.
Software means the program, application or platform that we make available to you that enables you to Access the Software Services.
Software Services / Services means the cloud-based content management system available to you through the Software called: TELLEC® Access (or as updated from time to time).
System means all computer firmware, middleware, protocols and other computer programs and all computer hardware, peripheral equipment, networks, communications systems and other equipment of whatever nature, used in the provision or receipt of the Software Services.
Term means the duration of this Agreement comprising the Initial Term and each subsequent Rollover Period.
Terms mean these TELLEC® Access terms and conditions.
Use means to load, execute, display and perform.
User means Personnel of yours that have your authorisation to Access and Use the Software.
User Data means all information relating to a User that the User has input or uploaded into the Software that forms a part of or relates to an Account.
User Documentation means any documentation or material provided or made available to you by us containing technical information regarding effective Use of the Software.
You means you, the customer or client, the party entering into and being bound by this Agreement.

 

Unless it is expressly stated that a different rule of interpretation will apply:

(a) a reference to an agreement includes any variation or replacement of the agreement;

 

(b) if the due date for any obligation is not a Business Day, the due date will be the next Business Day;

 

(c) all currency amounts are in Australian dollars;

 

(d) headings are provided for convenience and do not affect the interpretation of the documents making up the Agreement;

 

(e) “include”, “includes” and “including” must be read as if followed by the words “without limitation”;

 

(f) if a word or phrase is defined its other grammatical forms have corresponding meanings;

 

(g) agreements, representations and warranties made by two or more people will bind them jointly and severally;

 

(h) a reference to any legislation includes any consolidation, amendment, re-enactment or replacement of legislation;

 

(i) a person includes the person’s executors, administrators and permitted novatees and assignees;

 

(j) no rule of construction will apply to a provision of a document to the disadvantage of a party merely because that party drafted the provision or would otherwise benefit from it;

 

(k) if any part of the Agreement is invalid, unlawful or unenforceable, the invalid, unlawful or unenforceable part of the Agreement will not apply but the other parts of the Agreement will not be affected.