The following Terms and Conditions, imposed by INVISION MARKETING SERVICES PTY LTD (ACN 082 866 911) of Suite 8, 410 Burwood Highway, Wantirna South VIC 3152 (“the Licensor”), apply to the ongoing use of Passtab by the Registered User (“the Licensee”).
A. The Licensor owns certain computer software marketed as "Passtab".
B. The Licensor has agreed to grant to the Licensee a non-exclusive licence to use the Passtab web application and its associated documentation on the terms and conditions set out below.
1. Definitions and interpretation
In these Terms and Conditions, unless the context indicates the contrary:
Commencement Date means the date that the Licensee first accesses the Licensed Application using a username and password provided by the Licensor.
Confidential Information means all information provided by one party to the other in connection with this Agreement where such information is identified as confidential at the time of its disclosure or ought to reasonably be considered confidential based on its content, nature or the manner of its disclosure, but excluding:
(a) information that enters the public domain or is disclosed to a party by a third party, other than through a breach of this Agreement, and
(b) information developed independently by a party.
Designated End-User means a person authorised by the Registered User to have password access to the Licensed Application for the Purpose.
Documentation means any and all proprietary documentation made available to the Licensee by the Licensor for use with the Licensed Application, including any documentation available online.
Fees means the fees (as amended) provided to the Licensee by the Licensor at or before the Invoicing Date and detailed on the Website.
Force Majeure Event means any event beyond the control of the relevant party.
GST has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth), or any other similar tax.
Intellectual Property Rights means all intellectual property rights, including all copyright, patents, trademarks, design rights, trade secrets, domain names, knowhow and other rights of a similar nature, whether registrable or not and whether registered or not, and any applications for registration or rights to make such an application.
Invoicing Date means the date of the conclusion of a free trial period or, if there is no free trial period, the Commencement Date.
Licensed Application means the Passtab web application owned by the Licensor and provided to the Licensee by the Licensor pursuant to this Agreement.
Personally Identifiable Information means information about persons, as defined by the Privacy Act 1988 (Cth) (as amended) which is stored by the Licensed Application for its Purpose.
Moral Rights has the meaning given under the Copyright Act 1968 (Cth) and includes any similar rights existing in other countries.
Purpose means the use or purpose of Passtab, which includes monitoring and tracking visitors, leavers, key holders in an institution or premises or a range of institutions or premises.
Registered User means an organisation or person that has requested and has been supplied with a username and password by the Licensor in order to access the Licensed Application.
Term means the time from the Commencement Date until termination in accordance with clause 14.
Visitor means a person who uses the Licensed Application but has not been provided password access by the Registered User.
Website means passtab.com
Unless the context requires otherwise:
(a) a reference to a person includes a corporation or any other legal entity;
(b) the singular includes the plural and vice versa;
(c) headings are for convenience and do not form part of this Agreement or otherwise affect the interpretation of this Agreement;
(d) the term "includes" (or any similar term) means "includes without limitation"; and
(e) a reference to any statute includes references to any subsequently amended, consolidated or re-enacted version of that statute and all delegated legislation or other statutory instruments made under it.
2. Grant of licence
The Licensor grants to the Licensee a non-exclusive, non-transferable licence to use the Licensed Application and the Documentation during the Term, subject to and in accordance with the Purpose and these terms and conditions.
The Licensee may permit Visitors and Designated End-Users to use the Licensed Application as part of the normal Purpose of the Licensed Application.
The Licensee must not:
(a) use the Licensed Application for any purpose or in any manner other than as set out in clause 2.1;
(b) use the Licensed Application in any way that could damage the reputation of the Licensor or the goodwill or other rights associated with the Licensed Application;
(c) permit any third party to use the Licensed Application other than as set out in clause 2.2;
(d) permit any person to change, amend or customise any part of the Licensed Application, including the relocation of the Licensed Application to another physical location outside of the initial location of use of the
Licensed Application, without the Licensor's written consent;
(e) except as expressly permitted by this Agreement, and except to the extent that applicable laws, including the Copyright Act 1968 (Cth), prevent Licensor restraining Licensee from doing so:
(i) reproduce, make error corrections to or otherwise modify or adapt the Licensed Application or the Documentation or create any derivative works based upon the Licensed Application or the Documentation;
(ii) de-compile, disassemble or otherwise reverse engineer the Licensed Application or permit any third party to do so; or
(f) modify or remove any copyright or proprietary notices on the Licensed Application or the Documentation.
3. Delivery and installation
The Licensor shall provide a username and password to the licensee, in order to access the Licensed Application and the Documentation, on the Commencement Date.
If the Licensee reasonably requests, the Licensor will provide technical support to aid the installation of the Licensed Application on the Licensee's computer or device at a time agreed between the parties.
The Licensee must ensure that the computer or device on which the Licensed Application is to be installed is in good, up to date working order and operating condition when the Licensor accesses the Licensed Application.
At its discretion, the Licensor may assist the Licensee by selling hardware.
4. 30-day free trial period
The Licensor may agree to provide the Licensed Application to the Licensee for a free, no obligation period of 30-days to trial the Licensed Application.
During this 30-day trial, the Licensee agrees that it must still abide by these terms and conditions but will not be required to pay the Fees during this time.
If, at the end of the 30-day trial period, the Licensee chooses to pay the Fees, it will be governed by these terms and conditions for the Term.
If, at the end of the 30-day trial period, the Licensee chooses not to pay the Fees, the requirements provided in clauses 13 and 14 shall immediately apply.
The Licensee must advise the Licensor in writing at the conclusion of the 30-day trial period whether it intends to proceed in accordance with clause 4.3 or 4.4 of these terms and conditions.
5. Licensor's obligations and acknowledgement
The Licensor has the following obligations under this Agreement:
(a) To provide access to the Licensed Application to the Licensee for the Term;
(b) To provide technical support to the Licensee, during normal business hours in Melbourne, for the Licensed Application.
(d) To keep the Licensee's password and account details confidential.
The Licensor acknowledges that data provided by the Licensee in the course of the Purpose is owned by the Licensee.
6. Licensee's obligations and acknowledgment
The Licensee has the following obligations and makes the following acknowledgment under these terms and conditions:
(a) To provide accurate identification information requested by the Licensor including name, organisation, address, phone number and email address
(b) To provide accurate and up to date account information for invoicing or direct deduction of the Fees;
(c) Keep all passwords and usernames secure and not to allow any other person other than Designated End-Users to access the usernames and passwords for the use of the Licensed Application; Visitors may use the Licensed Application for the Purpose.
(d) The Licensee acknowledges and accepts that during the Term:
(i) The Licensor may update, alter or change the Licensed Application or these terms and conditions at any time. Such updates, alterations or changes shall be effective immediately and incorporated into this Agreement. The Licensee will be advised of the changes by email;
(ii) The Licensor may assign or sell its rights to the Licensed Application without notice to the Licensee;
(iii) The Licensee is responsible for durable storage of data downloaded from the Licensed Application. The Licensor will retain data in the Licensed Application for a maximum of five years during the Term and for a maximum of one month after termination.
(iv) The Licensor cannot guarantee 100% availability of the Licensed Application. Events such as maintenance, capacity restraints, security requirements and disruptions beyond the control of the Licensor, such as power failures, network disruptions and updates to web browser software, may result in temporary disruptions or malfunctions
7. Intellectual Property Rights
Nothing in this Agreement constitutes a transfer of any Intellectual Property Rights.
(a) acknowledges that the Licensor owns all Intellectual Property Rights in the Licensed Application; and
(b) will not directly or indirectly do anything that would or might invalidate or put in dispute the Licensor's title in the Licensed Application.
If any person makes any claim alleging that any of the Licensed Application (or use of the Licensed Application) infringes any Intellectual Property Rights or Moral Rights of any person, the Licensee must:
(a) promptly notify the Licensor in writing;
(b) not make any admissions or take any action in relation to the claim without the Licensor's written consent;
(c) permit the Licensor control over any and all investigations, negotiations, settlement and dispute resolution proceedings relating to the claim; and
(d) cooperate with, assist and act at all times in accordance with the reasonable instructions of the Licensor, in relation to the claim and any consequent investigations, negotiations, settlement and dispute resolution proceedings
The Licensee must pay the Licensor the Fees on the Invoicing Date and thereafter on each anniversary of the Invoicing Date.
The Licensor will invoice the Licensee for the Fees on a yearly basis in advance and will provide access to the Licensed Application provided the Fees are paid in full.
The Fees are posted to the Website. The Licensor may change the Fees at any time and the new Fees will apply at the next invoice.
All amounts payable under this Agreement are expressed exclusive of GST.
With the Licensor's reasonable belief of a breach, the Licensee must permit the Licensor (or its nominated auditor) to audit the records and premises of the Licensee at any time during the Term and for 3 years following the end of the Term, on at least 5 days written notice, for the purpose of confirming the Licensee's compliance with these terms and conditions.
The Licensor warrants to the Licensee that the Licensed Application will meet the description set out in the Website, as updated from time to time.
The Licensee is responsible for any civil or criminal liability that is incurred as a result of its use of the Licensed Application or Documentation. The Licensee indemnifies the Licensor against all liabilities, expenses, legal fees on a full indemnity basis and damages arising out of claims based upon use of the Licensed Application or Documentation.
To the full extent permitted by law, the Licensor excludes all liability in respect of loss of data, interruption of business or any consequential or incidental damages.
To the full extent permitted by law, the Licensor excludes all representations, warranties or terms (whether express or implied) other than those expressly set out in this Agreement.
The Licensor's total aggregate liability for all claims relating to this Agreement is limited to the Fees payable under this Agreement.
Either party's liability for any claim relating to this Agreement will be reduced to the extent to which the other party contributed to the damage arising from the claim.
This Agreement is to be read subject to any legislation which prohibits or restricts the exclusion, restriction or modification of any implied warranties, conditions, guarantees or obligations. If such legislation applies, to the extent possible, the Licensor limits its liability in respect of any claim to, at the Licensor's option:
(a) in the case of goods:
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of the goods;
(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(iv) the payment of having the goods repaired, and
(b) in the case of services:
(i) the supply of the services again; or
(ii) the payment of the cost of having the services supplied again.
A party may terminate this Agreement by written notice to the other.
15. Consequences of Termination
If this Agreement is terminated or expires for any reason, then, in addition and without prejudice to any other rights or remedies available:
(a) the parties are immediately released from their obligations under the Agreement except those obligations in clauses 6, 7, 8, 10, 11, 12, 13, and 16 and any other obligations that, by their nature, survive termination;
(b) each party retains the claims it has against the other;
(c) the Licensee's right to use the Licensed Application immediately ceases and the licences granted under this Agreement terminate;
(d) the Licensee must immediately remove all web links to the Licensed Application from all devices
(e) the Licensee must immediately pay all outstanding Fees.
(f) if the Licensor terminates this agreement the Licensor will pay to the Licensee a pro rata refund of fees that have been paid in advance.
(g) if the Licensee terminates this agreement no refund of Fees apply.
(h) the Licensor will deactivate the Licensee's account so that the username and password do not access the Licensed Application.
A party must not, without the prior written consent of the other, use or disclose the other party's Confidential Information unless expressly permitted by this Agreement or required to do so by law or any regulatory authority.
A party may:
(a) use the Confidential Information of the other party solely for the purposes of complying with its obligations and exercising its rights under this Agreement; and
(b) disclose the Confidential Information to its personnel or advisers to the extent necessary for them to know the information for purposes related to this Agreement, but only if reasonable steps are taken to ensure that the confidentiality of the information is retained.
Each party must implement and maintain effective security measures to prevent unauthorised use and disclosure of the other party's Confidential Information whilst it is in the receiving party's possession or control.
Each party must return, or at the other party's option destroy, all Confidential Information of the disclosing party in the receiving party's possession or control, on the earlier of the Licensor's request or on termination of this Agreement for any reason
The parties' contact details for notices under this Agreement are as follows, or as otherwise notified by one party to the other from time to time:
Licensor: INVISION MARKETING SERVICES PTY LTD
Address: Suite 8, 410 Burwood Highway, Wantirna South VIC 3152
Licensee: Name, address, and email address provided by the Registered User.
All notices must be in writing and can be given by:
(a) hand delivery during normal business hours;
(b) registered post; or
(c) email followed within 2 business days by one of the means listed above.
A notice is deemed to be given and received:
(a) if delivered in accordance with clause 16.2(a) on the next business day after the day of delivery;
(b) if sent in accordance with clause 16.2(b) within 5 clear business days after the day of posting;
(c) if sent in accordance with clause 16.2(c) on the next business day after transmission
The Licensee must not assign, sublicence or otherwise deal in any other way with any of its rights under this Agreement without the prior written consent of the Licensor.
Nothing contained in this Agreement creates any relationship of partnership or agency between the parties.
If a provision of this Agreement is invalid or unenforceable it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.
Each party must at its own expense do everything reasonably necessary to give full effect to this Agreement and the events contemplated by it.
This Agreement (and any documents executed in connection with it) is the entire Agreement of the parties about its subject matter and supersedes all other representations, arrangements or agreements. Other than as expressly set out in this Agreement, no party has relied on any representation made by or on behalf of the other.
A provision of or a right under this Agreement may not be waived or varied except in writing signed by the person to be bound.
By accepting the username and password provided by the Licensor and using the username and password on the Commencement Date to access the Licensed Application, the Licensee agrees to these terms and conditions which constitute the agreement between the Licensee and Licensor.
A party will not be responsible for a failure to comply with its obligations under this Agreement to the extent that failure is caused by a Force Majeure Event, provided that the party keeps the other closely informed in such circumstances and uses reasonable endeavours to rectify the situation.
Without limiting any other right to terminate under this Agreement, if a Force Majeure Event affects a party's performance under this Agreement for more than thirty (30) consecutive days, the other party may immediately terminate this Agreement by written notice.
All stamp duties and other government charges in relation to this Agreement must be paid by the Licensee.
This Agreement is governed by the laws of Victoria, Australia and each party submits to the jurisdiction of the courts of Victoria.