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 (“Invision”), apply to the ongoing use of the Services and Software by the End-User and the Customer.
A. Invision is the owner and provider of Software and Services marketed as “Passtab”.
B. Invision has agreed to grant to the Customer a non-exclusive, non-transferable right to use and access the Passtab Software, Services and 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:
Agreement means these terms and conditions.
Claim means a claim, notice, demand, action, proceeding, litigation, investigation, judgment, damage, loss, cost, expense or liability however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort or statute and whether involving a third party or a party to this Agreement.
Commencement Date means the date that the Customer first accesses the Services, Software, and Documentation using a username and password provided by Invision.
Confidential Information means all information provided by one Party to the other Party in connection with this Agreement and the use of the Services, Software, and Documentation, including the Customer Information, where such information is identified as confidential at the time of its disclosure or ought reasonably to 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.
Customer means an organisation or person that has been supplied with a username and password by Invision in order to access and use the Services, Software and Documentation in accordance with this Agreement.
Customer Information means all information entered, posted, uploaded or otherwise transmitted by, for, or in respect of, the Customer, End-Users or Registrants in the course of accessing or using the Services, Software, and Documentation and all information generated, compiled, arranged, stored or otherwise developed by the Services and Software which relates to the Customer, End-Users or Registrants and includes data and information generated, imported or uploaded from sources or systems operated or controlled by third parties.
Documentation means any and all proprietary documentation made available to the Customer by Invision for use of the Services or Software, including any documentation available online.
End User means an individual authorised by the Customer to have password access to, and use of the Services, Software, and Documentation for the Purpose.
Fees means the fees (as varied from time to time) payable by the Customer to Invision at or before the Invoicing Date in accordance with this Agreement.
Force Majeure Eventmeans any circumstance beyond the reasonable control of a Party which results in that Party being unable to observe or perform on time an obligation under this Agreement other than an obligation to pay money (including Fees). Such circumstances will include:
(a) acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disasters;
(b) acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution;
(c) industrial disputes, strikes and embargos; and
(d) internet, power, water, telecommunications or other utility outage or shortage.
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 the Free Trial Period or, if there is no Free Trial Period, the Commencement Date.
Moral Rights has the meaning given under the Copyright Act 1968 (Cth) and includes any similar rights existing in other countries.
Party means a Party to this Agreement.
Personal Information Means ‘personal information’ about persons, as defined by the Privacy Act 1988 (Cth) (as in force from time to time) which is stored by the Services, Software, and Documentation for its Purpose.
Purpose means the use or purpose of Passtab, which includes recording ingress and/or egress of Registrants in an organisation or premises and information associated with the Registrants.
Registrant means a person who uses the Services and Software but has not been provided password access by the Customer.
Services means the Passtab products and software services, including any mobile or web application programming interface that accesses functionality provided to the Customer by Invision pursuant to this Agreement.
Set-up Charge means a one-off set up fee payable by the Customer on the first Invoicing Date in addition to the Fees.
Software means the object code version of any downloadable software provided by Invision solely for the purposes of accessing the Services, together with updates, new releases or versions, modifications or enhancements, owned and provided by Invision to the Customer pursuant to this Agreement.
Technical Support means support provided by Invision by email or telephone communication only, during normal business hours in Melbourne (Australian Eastern Standard Time) to assist the Customer with initial installation of or access to the Services and Software at the organisation and premises nominated by the Customer on the Commencement Date, and to rectify technical problems relating to the ongoing operation of the Services and Software. Technical Support does not include:
(b) set-up support after the initial installation;
(c) support to set up new devices after the initial installation;
(d) improvements to the Services, Software, and Documentation;
(e) attendance at the Customer’s premises; or
(f) correction of errors or defects caused by;
(i) data entry or operational error;
(ii) any use of the Services and Software in a manner not permitted or intended by this Agreement or the Documentation;
(iii) faulty equipment or hardware provided by the Customer;
(iv) use or reliance on third party or the Customer’s software or infrastructure;
(v) any negligent act or omission by the Customer; or
(vi) any event beyond Invision’s reasonable control.
Term means the time from the Commencement Date until termination in accordance with clause 14.
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. Uses of Service
Invision grants the Customer a non-exclusive, non-transferable right to access, use and install (if applicable) the Services, Software, and Documentation during the Term for the organisation(s) or premises nominated by the Customer at the Commencement Date, subject to and in accordance with the Purpose and this Agreement
The Customer may permit Registrants and End-Users to use the Services, Software, and Documentation as part of the normal Purpose of the Services, Software, and Documentation.
The Customer must not:
(a) use the Services, Software, or Documentation for any purpose or in any manner other than as set out in clause 2.1;
(b) use the Services, Software, or Documentation in any way that could damage the reputation of Invision or the goodwill or other rights associated with the Services, Software, and Documentation;
(c) permit any third party to use the Services, Software, or Documentation other than as set out in clause 2.2;
(d) permit any person to change, amend or customise any part of the Services, Software, or Documentation;
(e) use the Services, Software, or Documentation or allow them to be used, for any organisation or premises that was not nominated by the Customer at the Commencement Date, without Invision's written consent;
(f) except as expressly permitted by this Agreement, and except to the extent that applicable laws, including the Copyright Act 1968 (Cth), prevent Invision restraining Customer from doing so:
(i) reproduce, make error corrections to or otherwise modify or adapt the Services, Software, or Documentation or create any derivative works based upon the Services, Software, or Documentation;
(ii) de-compile, disassemble or otherwise reverse engineer the Services, Software, or Documentation or permit any third party to do so; or
(iii) modify or remove any copyright or proprietary notices on the Services, Software, or Documentation.
3. Delivery and Access
Invision shall provide a username and password to the Customer, in order for the Customer to access the Services, Software, and Documentation, on the Commencement Date.
If the Customer reasonably requests, Invision will provide Technical Support to aid the installation of or access to the Services, Software, and Documentation on the Customer's computer or device at a time agreed between the parties.
The Customer must ensure that the computer or device on which the Services, Software, and Documentation are to be installed and used is in good, up to date working order and operating condition when the Customer accesses the Services, Software, and Documentation.
4. Free trial period
Invision may agree to provide the Services, Software, and Documentation to the Customer for a free, no obligation, 30 day period (or such longer or shorter period as Invision may determine in its ultimate discretion) to trial the Services, Software, and Documentation (Free Trial Period).
During the Free Trial Period, the Customer agrees that it will abide by the terms of this Agreement but will not be required to pay the Fees.
If, at the end of the Free Trial Period, the Customer pays the Fees, it will be governed by the terms of this Agreement for the Term.
If, at the end of the Free Trial Period, the Customer does not pay the Fees, this Agreement will have been deemed to be terminated by the Customer under clause 14 and the obligations of clause 15 of this Agreement shall immediately apply. All terms which survive termination of this Agreement will continue to apply.
The Customer must advise Invision in writing at least 2 business days prior to the end of the Free Trial Period whether it intends to proceed in accordance with clause 4.3 or 4.4 of this Agreement.
5. Invision’s obligations and acknowledgement
Invision has the following obligations under this Agreement:
(a) to provide access to the Services, Software, and Documentation to the Customer during the Term;
(b) to provide Technical Support to the Customer, during normal business hours in Melbourne, Australia for the use of the Services and Software;
(d) to keep the Customer’s password and account details confidential; and
(e) to retain the Customer Information for a maximum of five years during the Term and for a maximum of one month after termination in accordance with clause 14.
Invision acknowledges that the Customer Information provided by the Customer in the course of the Purpose is owned by the Customer.
6. Customer’s obligations and acknowledgment
6.1. The Customer has the following obligations:
(a) to provide accurate identification information requested by Invision including name, organisation, address, phone number and email address;
(b) on the Commencement Date, nominate the organisation(s) and premises where the Services and Software will be used;
(c) provide accurate and up to date account information for invoicing or direct deduction of the Fees;
(d) keep all passwords and usernames secure and not allow any other person other than End-Users to access the usernames and passwords; and
(e) ensure Registrants use the Services and Software for the Purpose only.
The Customer acknowledges and accepts that during the Term:
(a) Invision may update, alter or change the Services, Software, or Documentation or the terms of this Agreement at any time without notice. Such updates, alterations or changes shall be effective immediately and incorporated into this Agreement and are deemed to be accepted by the Customer;
(b) Invision may assign or sell its rights to the Services, Software, or Documentation without notice to the Customer;
(c) the Customer is solely responsible for durable storage of data downloaded from the Services or Software;
(d) the Customer is solely responsible for managing Personal Information downloaded from the Services or Software;
(e) the Customer is solely responsible for the accuracy of Customer Information;
(f) Invision cannot guarantee 100% availability of the Services and Software. Events such as maintenance, capacity restraints, security requirements and disruptions beyond the control of Invision, such as power failures, network disruptions, third party service unavailability, and updates to web browser software, may result in temporary disruptions, malfunctions, delayed notifications and missing or non-retrievable data; and
(g) Invision is not responsible for the internet or any telecommunication infrastructure required to access and use the Services, Software, and Documentation or for any failures thereof and Invision does not and cannot provide any warranty that the internet, any web site or any telecommunications infrastructure will be continuously accessible.
The Customer acknowledges it is solely responsible for obtaining all necessary consents and authorisations from Registrants and End-Users for the collection, storage and use of their Personal Information by the Services or Software for the Purpose.
7. Intellectual Property Rights
Nothing in this Agreement constitutes a transfer of any Intellectual Property Rights.
(a) acknowledges that Invision owns all Intellectual Property Rights in the Services, Software, and Documentation; and
(b) will not directly or indirectly do anything that would or might invalidate or put in dispute Invision's title in the Services, Software, and Documentation.
If any person makes any claim alleging that any of the Services, Software, or Documentation (or use of the Services, Software, or Documentation) infringes any Intellectual Property Rights or Moral Rights of any person, the Customer must:
(a) promptly notify Invision in writing;
(b) not make any admissions or take any action in relation to the claim without Invision's written consent;
(c) permit Invision 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 Invision, in relation to the claim and any consequent investigations, negotiations, settlement and dispute resolution proceedings.
Invision acknowledges that, subject to any lien and the terms of this Agreement the Customer Information remains the Customer’s property and Invision will not disclose, sell, assign or licence Customer Information to any person unless compelled to by law or required to comply with any obligation pursuant to this Agreement.
The Customer must pay Invision the Fees and the Set-up Charge on the Invoicing Date and thereafter must pay the Fees yearly on each anniversary of the Invoicing Date during the Term.
Invision will invoice the Customer for the Fees on a yearly basis in advance and will provide access to the Services, Software, and Documentation only if the Fees are paid in full by no later than the yearly anniversary of the Invoicing Date.
Invision will determine the Fees payable on the Invoicing Date based on the Customer’s nominated organisation(s) and premises and agreed functionality. The Fees may differ from a price published on the Website.
Invision may change the Fees at any time without notice and the amended Fees will apply at the next invoice.
All amounts payable under this Agreement are expressed exclusive of GST.
In respect of any taxable supply, the Customer must pay to Invision an additional amount equal to the prevailing GST rate, payable at the same time and in the same manner as the Fees, subject to the receipt by the Customer of a valid tax invoice.
If Invision reasonably suspects there has been a breach of this Agreement, the Customer must permit Invision (or its nominated auditor) to audit the records and premises of the Customer at any time during the Term and for three (3) years following the end of the Term, on at least five (5) days’ written notice, for the purpose of confirming the Customer's compliance with this Agreement.
Invision warrants to the Customer that the Services, Software, and Documentation will meet the description set out in the Website, as updated from time to time.
Each Party warrants to the other that it has the right and ability to enter into this Agreement and that the terms and conditions of this Agreements will be legally binding on it
12. Indemnity and Release
The Customer is responsible for any civil or criminal liability that is incurred as a result of its use of the Services, Software, or Documentation.
The Customer releases and indemnifies Invision its servants and agents in respect of all Claims, liabilities, expenses, legal fees on a full indemnity basis, costs, and damages (including the cost of defending or settling any Claims) arising out of:
(a) a breach of this Agreement by the Customer;
(b) any wilful, unlawful or negligent act or omission by the Customer;
(c) any failure to comply with Invision’s reasonable instructions in relation to the use of the Services and Software; and
(d) any Claim by any third party, including Registrants and End Users, arising out of or in connection with the Customer’s use of the Services, Software, or Documentation.
This clause will survive the expiration or termination of this Agreement.
To the full extent permitted by law, Invision excludes all representations, warranties or terms (whether express or implied) other than those expressly set out in this Agreement.
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, Invision limits its liability in respect of any Claim to, at Invision'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.
Subject to clause 13.1 and 13.2 Invision will not be liable to the Customer for Claims arising out of or in connection with this Agreement or the Customer’s use of the Services, Software, or Documentation.
In no event will Invision be liable to the Customer for loss of use, production, profit, revenue, business, data, contract or anticipated savings or for delay or for any financing costs or increase in operating costs or any economic loss or any indirect or consequential loss or damage.
Invision'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.
Without limiting the foregoing clauses, the Customer acknowledges that the Services and Software may be used in an emergency and for monitoring currency of certificates, including certificates relating to registration for working with children, and whilst the Services and Software are designed to assist the Customer with emergency management procedures and monitoring currency of certificates they are not designed to ensure or guarantee appropriate or adequate emergency management procedures or currency of certificates and should not be relied upon solely by the Customer for that purpose. The Customer remains solely liable and responsible for its emergency management procedures and performance of same and monitoring of currency of certificates and compliance with relevant laws and standards. The Customer must not make any Claim against Invision in respect of any liability or loss suffered by the Customer or a third party as a result of the Customer’s emergency management procedures and performance or monitoring of currency of certificates or any non-compliance with relevant laws and standards.
This clause will survive the expiration or termination of this Agreement.
A Party may terminate this Agreement by giving 7 days 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 17 and any other obligations that, by their nature, survive termination;
(b) each Party retains the claims it has against the other;
(c) the Customer's right to use the Services, Software, and Documentation immediately ceases and all rights granted under this Agreement terminate;
(d) the Customer must immediately remove all Software and all web links to the Services, Software, and Documentation from all devices;
(e) the Customer must immediately pay all outstanding Fees;
(f) if Invision terminates this Agreement, other than for a breach of the Agreement by the Customer, Invision will pay to the Customer a pro rata refund of Fees that have been paid in advance;
(g) if the Customer terminates this Agreement no refund of Fees will apply;
(h) Invision will deactivate the Customer’s account so that the username and password do not access the Services, Software, and Documentation.
16. Third-Party Provider
The Customer acknowledges that Invision may engage the Third-Party Provider to provide some or all of the Services on its behalf.
The Customer acknowledges that the Third-Party Provider is engaged as a subcontractor of Invision and that the Customer shall have no rights or remedies against the Third-Party Provider arising out of this Agreement and to the fullest extent permitted by law the Customer releases the Third-Party Provider from all liability relating to the provision of the Services.
Invision may limit or suspend access to any or all of the Services, temporarily or permanently, without notice, if the Third-Party Provider limits or suspends the provision of access to the corresponding services, and the Customer is not entitled to make any claim against Invision in those circumstances.
16.4. The Customer agrees to comply with the Third-Party Provider’s Acceptable Use Policy as made available and updated by the Third-Party Provider from time to time.
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 Invision'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:
(a) Invision: INVISION MARKETING SERVICES PTY LTD
Address: Suite 8, 410 Burwood Highway, Wantirna South VIC 3152
(b) Customer: Name, address, and email address provided by the Customer.
All notices must be in writing and can be given by:
(a) hand delivery during normal business hours; or
(b) registered post; or
A notice is deemed to be given and received:
(a) if delivered in accordance with clause 18.2(a) on the next business day after the day of delivery;
(b) if sent in accordance with clause 18.2(b) within 5 clear business days after the day of posting;
(c) if sent in accordance with clause 18.2(c) on the next business day after transmission.
The Customer must not assign, sub-licence or otherwise deal in any other way with any of its rights under this Agreement without the prior written consent of Invision.
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 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 Invision and using the username and password on the Commencement Date to access the Services, Software, and Documentation, the Customer agrees to the terms and conditions which constitute the Agreement between the Customer and Invision.
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 Customer.
This Agreement is governed by the laws of Victoria, Australia and each Party submits to the jurisdiction of the courts of Victoria.