Terms – Passtab

Customers that are located within the European Union, click here to see our EU Terms & Conditions.

Introduction

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.

RECITALS:

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

1.1
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.

Customer Legal Obligation means any applicable law, regulation, rule, policy, process, procedure, standard, guideline or any other requirement or obligation that the Customer may be subject to and or required to comply with from time to time.

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) notified by Invision to the Customer and 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.

Incident includes any accident, injury or other incident.

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 in any form whatsoever, 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.

Privacy Policy means Invision’s privacy policy applicable to the Services, Software, and Documentation, as updated from time to time, available on the Website.

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 (the amount of which is to be notified by Invision to the Customer) payable by the Customer to Invision on the first Invoicing Date in addition to the Fees.

Software means the object code version of any program and other operating information used by a computer, phone or tablet provided by Invision solely for the purposes of accessing the Services, together with all updates, new releases or versions, modules, 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 Invision’s 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:
(a) training;
(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 of the Agreement in accordance with clause 14.

Third-Party Provider means Amazon Web Services Inc. or such other third party provider engaged by Invision from time to time.

Website means poc.passtab.com and poc.passtab.com.au

1.2
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

2.1
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.

2.2
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.

2.3
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

3.1
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.

3.2
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.

3.3
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

4.1
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).

4.2
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.

4.3
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.

4.4
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.

4.5
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

5.1
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 during the Term for the use of the Services and Software;
(c) to adhere to the Privacy Policy;
(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.

5.2
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.

6.2
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 ensuring that all Customer Information downloaded from the Services or Software by the Customer (or any other employee, agent, adviser or representative of the Customer, or any End-User, Registrant or any other third person or party) is stored securely and confidentially at all times and that all Customer Legal Obligations in relation to the Customer Information, including in relation to privacy and the handling of Personal Information, are complied with at all times.
The Customer acknowledges and agrees that Invision shall have no liability whatsoever and the Customer and third parties shall not be able to make any Claim against Invision in relation to any Customer Information which is downloaded from the Software or Services (including where a copy of such Customer Information is retained on the Services or Software or on the Invision server) including in relation to any breach or alleged breach of confidentiality of any Customer Information or any breach or alleged breach of a Customer Legal Obligation in relation to the handling of Customer Information and or Personal Information.
(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 to the fullest extent permitted by law Invision shall have no liability whatsoever to the Customer and the Customer shall not be entitled to make any Claim against Invision in those circumstances; 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 and to the fullest extent permitted by law Invision shall have no liability whatsoever to the Customer and the Customer shall not be entitled to make any Claim against Invision in those circumstances.

6.3
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

7.1
Nothing in this Agreement constitutes a transfer of any Intellectual Property Rights.

7.2
The Customer:
(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.

7.3
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.

7.4
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.

8. Payment

8.1
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.

8.2
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.

8.3
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.

8.4
Invision may change the Fees at any time without notice and the amended Fees will apply at the next invoice.

9. GST

9.1
All amounts payable under this Agreement are expressed exclusive of GST.

9.2
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.

10. Audit

10.1
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.

11. Warranties

11.1
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

12.1
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.

12.2
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.

12.3
This clause will survive the expiration or termination of this Agreement.

13. Liability

13.1
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.

13.2
The Customer acknowledges and agrees that, without limiting any other clause of this Agreement,:
(a) while Invision may from time to time provide advice and or recommendations (for example in relation to the application to, or customisation for, the Customer of particular Services or Software) to the fullest extent permitted by law, Invision makes no representations or gives any warranties and shall have no liability whatsoever to the Customer, and the Customer shall not be entitled to bring any Claim against Invision, in relation to:
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the adequacy, suitability, applicability, and or appropriateness of any or all of the Services, Software and Documentation to the Customer’s needs or requirements and or the Customer’s compliance with any Customer Legal Obligation; and
(iii) the Software, Services and Documentation provided by Invision to the Customer are in the form of a generalised template and it is the sole responsibility of the Customer to review the template(s) provided and to ensure that the Software and Services provided by Invision are suitable and sufficient for the needs of the Customer and are compliant with any applicable Customer Legal Obligation. If the Customer wishes to seek any variation or customisation of the Software or Services, the Customer may request Invision to make such customisation, which request Invision may choose to fulfil or refuse (either whole or in part) at Invision’s sole discretion. Any request so fulfilled, is done so only on the basis that the Customer at all times remains solely responsible for ensuring that the Services and Software meet the Customer’s needs and each applicable Customer Legal Obligation and to the fullest extent permitted by law, Invision makes no representations or gives any warranties and shall have no liability whatsoever to the Customer as to the adequacy, suitability, applicability, and or appropriateness of any or all of the Services, Software and Documentation to the Customer’s needs or requirements and or the Customer’s compliance with any Customer Legal Obligation; and

(b) the Customer is solely responsible at all times for implementing and maintaining its own independent backup durable storage of all Customer Information. To the fullest extent permitted by law, Invision shall have no liability whatsoever to the Customer, and the Customer shall not be entitled to make any Claim against Invision, in respect of any loss of Customer Information or inability to access Customer Information

13.3
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.

13.4
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.

13.5
Invision’s total aggregate liability for all Claims relating to this Agreement is limited to the Fees payable under this Agreement.

13.6
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.

13.7
Without limiting the foregoing clauses, the Customer acknowledges that the Services and Software may be used in an emergency, Incident and or 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 Incident and emergency management procedures and monitoring currency of certificates they are not designed to ensure or guarantee appropriate or adequate Incident and or 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 Incident and emergency management procedures and performance of same and monitoring of currency of certificates and compliance with each relevant Customer Legal Obligation. Invision shall have no liability whatsoever to the Customer and 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 Incident and or emergency management procedures and performance or monitoring of currency of certificates or any non-compliance with any Customer Legal Obligation.

13.8
This clause will survive the expiration or termination of this Agreement.

14. Suspension and Termination

14.1
A Party may terminate this Agreement by giving 7 days written notice to the other.

14.2
Invision may terminate this Agreement immediately upon notice to the Customer if the Customer breaches an obligation under this Agreement (including any payment obligation) or acts or omits to act in such a way as to require, in the opinion of Invision, immediate termination of the Agreement.

14.3
Invision may limit or suspend access to any or all of the Software, Services and or Documentation, temporarily or permanently, immediately without notice (provided that Invision shall endeavour to provide notice to the Customer as soon as practicable), if:
(a) The Customer breaches an obligation under this Agreement (including any payment obligation) or acts or omits to act in such a way as to require, in the opinion of Invision, suspension of the Software, Services and or Documentation as the case may be; and or
(b) Invision considers it necessary or desirable for operational or emergency circumstances.

15. Consequences of Termination

15.1
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, 9, 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; and
(i) Invision is entitled to delete any or all Customer Information at any time after 7 days after the date on which this Agreement is terminated (regardless of the reason for such termination).

15.2
The Customer shall be solely responsible for ensuring that it has downloaded and retained a copy of all Customer Information on or before the date of termination of the Agreement. The Customer may request a copy of the Customer Information from Invision, provided that such request is made in writing, in English, to Invision and is received by Invision within 7 days of the date of termination of this Agreement.

16. Third-Party Provider

16.1
The Customer acknowledges that Invision may engage the Third-Party Provider to provide some or all of the Services on its behalf.

16.2
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.

16.3
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 Invision shall have no liability whatsoever, 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.

17. Confidentiality

17.1
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.

17.2
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.

17.3
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.

17.4
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

18. Notices

18.1.
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
Email: support@invision.net.au

(b) Customer: Name, address, and email address provided by the Customer.

18.2
All notices must be in writing, in English, and can be given by:
(a) hand delivery during normal business hours; or
(b) registered post; or
(c) email.

18.3
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.

19. General

19.1.
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.

19.2
Nothing contained in this Agreement creates any relationship of partnership or agency between the parties.

19.3
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.

19.4
Each Party must at its own expense do everything reasonably necessary to give full effect to this Agreement and the events contemplated by it.

19.5
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.

19.6
A provision or a right under this Agreement may not be waived or varied except in writing signed by the person to be bound.

19.7
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.

19.8
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.

19.9
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.

19.10
All stamp duties and other government charges in relation to this Agreement must be paid by the Customer.

19.11
This Agreement is governed by the laws of Victoria, Australia and each Party submits to the jurisdiction of the courts of Victoria.

Terms & Conditions European Union – Passtab

Introduction

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.

RECITALS:

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

1.1
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.

Customer Legal Obligation means any applicable law, regulation, rule, policy, process, procedure, standard, guideline or any other requirement or obligation that the Customer may be subject to and or required to comply with from time to time.

Data Processor Addendum means an addendum to the Agreement which forms part of this Agreement where the Customer is in the European Union.
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) notified by Invision to the Customer and payable by the Customer to Invision at or before the Invoicing Date in accordance with this Agreement.

Force Majeure Event means 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.

Incident includes any accident, injury or other incident.

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 in any form whatsoever, 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 Data means ‘personal data’ about persons in the European Union, as defined by the European Union General Data Protection Regulation (EU 2016/679) (as in force from time to time) which is stored by the Services, Software, and Documentation for its Purpose.

Personal Information means ‘personal information’ about persons not in the European Union, as defined by the Australian Privacy Act 1988 (Cth) (as in force from time to time) which is stored by the Services, Software, and Documentation for its Purpose.

Personal Notice means Invision’s privacy notice applicable to the Services, Software, and Documentation for Customers in the European Union, as updated from time to time, available on the Website.

Privacy Policy means Invision’s privacy policy applicable to the Services, Software, and Documentation for Customers not in the European Union, as updated from time to time, available on the Website.

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 (the amount of which is to be notified by Invision to the Customer) payable by the Customer to Invision on the first Invoicing Date in addition to the Fees.

Software means the object code version of any program and other operating information used by a computer, phone or tablet provided by Invision solely for the purposes of accessing the Services, together with all updates, new releases or versions, modules, 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 Invision’s 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:
(a) training;
(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 of the Agreement in accordance with clause 14.

Third-Party Provider means Amazon Web Services Inc. or such other third party provider engaged by Invision from time to time.

Website means poc.passtab.com and poc.passtab.com.au

1.2
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

2.1
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.

2.2
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.

2.3
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

3.1
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.

3.2
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.

3.3
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

4.1
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).

4.2
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.

4.3
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.

4.4
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.

4.5
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

5.1
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 during the Term for the use of the Services and Software;
(c) where the Customer is not in the European Union, to adhere to the Privacy Policy;
(d) where the Customer is in the European Union, to process Personal Data according the the Data Processor Addendum and the Privacy Notice
(e) to keep the Customer’s password and account details confidential; and
(f) 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.

5.2
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.

6.2
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 ensuring that all Customer Information downloaded from the Services or Software by the Customer (or any other employee, agent, adviser or representative of the Customer, or any End-User, Registrant or any other third person or party) is stored securely and confidentially at all times and that all Customer Legal Obligations in relation to the Customer Information, including in relation to privacy and the handling of Personal Information and Personal Data, are complied with at all times.
The Customer acknowledges and agrees that Invision shall have no liability whatsoever and the Customer and third parties shall not be able to make any Claim against Invision in relation to any Customer Information which is downloaded from the Software or Services (including where a copy of such Customer Information is retained on the Services or Software or on the Invision server) including in relation to any breach or alleged breach of confidentiality of any Customer Information or any breach or alleged breach of a Customer Legal Obligation in relation to the handling of Customer Information and or Personal Information and Personal Data.
(d) the Customer is solely responsible for managing Personal Information and Personal Data 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 to the fullest extent permitted by law Invision shall have no liability whatsoever to the Customer and the Customer shall not be entitled to make any Claim against Invision in those circumstances; 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 and to the fullest extent permitted by law Invision shall have no liability whatsoever to the Customer and the Customer shall not be entitled to make any Claim against Invision in those circumstances.

6.3
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 and Personal Data by the Services or Software for the Purpose.

7. Intellectual Property Rights

7.1
Nothing in this Agreement constitutes a transfer of any Intellectual Property Rights.

7.2
The Customer:
(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.

7.3
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.

7.4
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.

8. Payment

8.1
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.

8.2
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.

8.3
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.

8.4
Invision may change the Fees at any time without notice and the amended Fees will apply at the next invoice.

9. GST

9.1
All amounts payable under this Agreement are expressed exclusive of GST.

9.2
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.

10. Audit

10.1
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.

11. Warranties

11.1
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

12.1
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.

12.2
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.

12.3
This clause will survive the expiration or termination of this Agreement.

13. Liability

13.1
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.

13.2
The Customer acknowledges and agrees that, without limiting any other clause of this Agreement,:
(a) while Invision may from time to time provide advice and or recommendations (for example in relation to the application to, or customisation for, the Customer of particular Services or Software) to the fullest extent permitted by law, Invision makes no representations or gives any warranties and shall have no liability whatsoever to the Customer, and the Customer shall not be entitled to bring any Claim against Invision, in relation to:
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the adequacy, suitability, applicability, and or appropriateness of any or all of the Services, Software and Documentation to the Customer’s needs or requirements and or the Customer’s compliance with any Customer Legal Obligation; and
(iii) the Software, Services and Documentation provided by Invision to the Customer are in the form of a generalised template and it is the sole responsibility of the Customer to review the template(s) provided and to ensure that the Software and Services provided by Invision are suitable and sufficient for the needs of the Customer and are compliant with any applicable Customer Legal Obligation. If the Customer wishes to seek any variation or customisation of the Software or Services, the Customer may request Invision to make such customisation, which request Invision may choose to fulfil or refuse (either whole or in part) at Invision’s sole discretion. Any request so fulfilled, is done so only on the basis that the Customer at all times remains solely responsible for ensuring that the Services and Software meet the Customer’s needs and each applicable Customer Legal Obligation and to the fullest extent permitted by law, Invision makes no representations or gives any warranties and shall have no liability whatsoever to the Customer as to the adequacy, suitability, applicability, and or appropriateness of any or all of the Services, Software and Documentation to the Customer’s needs or requirements and or the Customer’s compliance with any Customer Legal Obligation; and

(b) the Customer is solely responsible at all times for implementing and maintaining its own independent backup durable storage of all Customer Information. To the fullest extent permitted by law, Invision shall have no liability whatsoever to the Customer, and the Customer shall not be entitled to make any Claim against Invision, in respect of any loss of Customer Information or inability to access Customer Information

13.3
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.

13.4
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.

13.5
Invision’s total aggregate liability for all Claims relating to this Agreement is limited to the Fees payable under this Agreement.

13.6
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.

13.7
Without limiting the foregoing clauses, the Customer acknowledges that the Services and Software may be used in an emergency, Incident and or 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 Incident and emergency management procedures and monitoring currency of certificates they are not designed to ensure or guarantee appropriate or adequate Incident and or 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 Incident and emergency management procedures and performance of same and monitoring of currency of certificates and compliance with each relevant Customer Legal Obligation. Invision shall have no liability whatsoever to the Customer and 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 Incident and or emergency management procedures and performance or monitoring of currency of certificates or any non-compliance with any Customer Legal Obligation.

13.8
This clause will survive the expiration or termination of this Agreement.

14. Suspension and Termination

14.1
A Party may terminate this Agreement by giving 7 days written notice to the other.

14.2
Invision may terminate this Agreement immediately upon notice to the Customer if the Customer breaches an obligation under this Agreement (including any payment obligation) or acts or omits to act in such a way as to require, in the opinion of Invision, immediate termination of the Agreement.

14.3
Invision may limit or suspend access to any or all of the Software, Services and or Documentation, temporarily or permanently, immediately without notice (provided that Invision shall endeavour to provide notice to the Customer as soon as practicable), if:
(a) The Customer breaches an obligation under this Agreement (including any payment obligation) or acts or omits to act in such a way as to require, in the opinion of Invision, suspension of the Software, Services and or Documentation as the case may be; and or
(b) Invision considers it necessary or desirable for operational or emergency circumstances.

15. Consequences of Termination

15.1
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, 9, 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; and
(i) Invision is entitled to delete any or all Customer Information at any time after 7 days after the date on which this Agreement is terminated (regardless of the reason for such termination).

15.2
The Customer shall be solely responsible for ensuring that it has downloaded and retained a copy of all Customer Information on or before the date of termination of the Agreement. The Customer may request a copy of the Customer Information from Invision, provided that such request is made in writing, in English, to Invision and is received by Invision within 7 days of the date of termination of this Agreement.

16. Third-Party Provider

16.1
The Customer acknowledges that Invision may engage the Third-Party Provider to provide some or all of the Services on its behalf.

16.2
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.

16.3
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 Invision shall have no liability whatsoever, 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.

17. Confidentiality

17.1
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.

17.2
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.

17.3
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.

17.4
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

18. Notices

18.1
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
Email: support@invision.net.au

(b) Customer: Name, address, and email address provided by the Customer.

18.2
All notices must be in writing, in English, and can be given by:
(a) hand delivery during normal business hours; or
(b) registered post; or
(c) email.

18.3
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.

19. General

19.1.
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.

19.2
Nothing contained in this Agreement creates any relationship of partnership or agency between the parties.

19.3
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.

19.4
Each Party must at its own expense do everything reasonably necessary to give full effect to this Agreement and the events contemplated by it.

19.5
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.

19.6
A provision or a right under this Agreement may not be waived or varied except in writing signed by the person to be bound.

19.7
Where the Customer is not in the European Union, 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.

19.8
Where the Customer is in the European Union, 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 and Data Processor Addendum which together constitute the Agreement between the Customer and Invision.

19.9
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.

19.10
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.

19.11
All stamp duties and other government charges in relation to this Agreement must be paid by the Customer.

19.12
This Agreement is governed by the laws of Victoria, Australia and each Party submits to the jurisdiction of the courts of Victoria.

Passtab Data Processor Addendum

This Data Processor Addendum (Addendum) forms part of the Passtab Terms and Conditions of use where the Customer is located in the European Union.

1. Definitions and interpretation

1.1
In this Addendum, unless the context indicates the contrary:

Agreement means the terms and conditions imposed by Invision on the Customer applying to the ongoing use of the Services and Software by the End-User and the Customer as amended by, and including, this Addendum.

Addendum means these terms and conditions.

Applicable Laws means European Union or Member State laws with respect to any Controller Personal Data in respect of which the Controller is subject to GDPR.

AWS means Amazon Web Services; the Processor has contracted to AWS to provide GDPR compliant data storage on servers physically located in the European Union.

Controller means the Customer.

Controller Personal Data means any Personal Data processed by the Processor on behalf of the Controller pursuant to or in connection with Passtab Terms and Conditions and which has not been extracted from the Passtab system by any means by the Controller;

Data Protection Officer means a member of staff or external consultant who is skilled in the field of data privacy and the GDPR.

Data Subject means an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person

GDPR means the European Union General Data Protection Regulation (EU 2016/679).

Instructions means a directive from the Controller to the Processor describing the categories of personal data to be collected, provided as part of the Passtab set-up process and as amended from time to time in writing from the Controller.

Lawful Basis means processing shall be lawful only if and to the extent that at least one of the following applies:
(a) the Data Subject has given consent to the processing of his or her Personal Data for one or more specific purposes;
(b) processing is necessary for the performance of a contract to which the Data Subject is party or in order to take steps at the request of the Data Subject prior to entering into a contract;
(c) processing is necessary for compliance with a legal obligation to which the Controller is subject;
(d) processing is necessary in order to protect the vital interests of the Data Subject or of another natural person;
(e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the Controller;
(f) processing is necessary for the purposes of the legitimate interests pursued by the Controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the Data Subject which require protection of personal data, in particular where the data subject is a child.

Personal Data means any information relating to a Data Subject.

Processor means Invision.

Representative means a representative of Invision based in the European Union for the purpose of providing a point of contact in the European Union.

1.2
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. Obligations and Rights of Processor

2.1
The Processor shall
(a) collect, process and retain Personal Data on the written Instructions of the Controller
(b) ensure that staff who process Personal Data have employment contracts that include a confidentiality commitment
(c) ensure that staff who have access to Personal Data only process Personal Data in accordance with the written Instructions of the Controller
(d) implement appropriate technical and organisational measures to ensure a level of data security appropriate to the risk as described in the Schedule of this Agreement
(e) not engage a sub-processor, other than AWS, without prior written approval from the Controller for the storage of Personal Data in the European Union
(f) comply with reasonable and lawful requests of the Controller, where a Data Subject requests the Controller to undertake:
a. rectification of Personal Data
b. erasure of Personal Data
c. restriction of processing of Personal Data
d. other activities in exercising the Data Subject’s rights under GDPR
(g) assist the Controller in meeting its data protection obligations in relation to the investigation and notification of Personal Data breaches where the Processor can be reasonably inferred to be the source of the breaches.
(h) assist to Controller in meeting its data protection obligations in relation to the security of processing by providing information describing the Processor’s security processes, including inspections and audits where applicable.
(i) delete all Personal Data within 60 days on termination of the Agreement
(j) advise the Controller as soon as practicable if the Processor becomes aware of a material non-compliance of this Agreement in relation to technical or organisational processes
(k) cooperate with supervisory authorities (as and when they become known) on request of the supervisory authorities
(l) notify the Controller of a Personal Data breach affecting the Controller Personal Data without undue delay on becoming aware of it. The notification shall include:
e. the nature of the breach
f. the name and contact information of the Data Protection Officer
g. the likely consequences of the breach
h. the measures taken, if it can be reasonably inferred that the breach arose from the Processor, to mitigate possible adverse effects of the breach
(m) co-operate with the Controller and take such reasonable commercial steps as are directed by the Controller to assist in the investigation, mitigation and remediation of a Personal Data breach affecting the Controller Personal Data
(n) secure the services of a Data Protection Officer
(o) appoint a Representative based in the European Union
(p) maintain an induction and training program for staff that educates staff of their obligations under GDPR
(q) only allow access to Personal Data to staff, and not allow access to Personal Data for any agents, subcontractors, or vendors other than AWS.

2.2
The Processor warrants that it will not transfer Personal Data outside the EU other than
(a) a name, email address and phone number of a responsible person within the Controller’s organisation, being the minimum requirement for account management and invoicing purposes
(b) to comply with a supervisory authority directive

2.3
The Processor shall maintain a record of all categories of processing activities carried out on behalf of the Controller and which contains a general description of the technical and organisational security measures

2.4
The Processor shall maintain a record of processing activities and shall make the record available to the supervisory authority on request

2.5
When assessing the appropriate level of security and the subsequent technical and operational measures, the Processor shall consider the risks presented by any processing activities, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to personal data transmitted, stored or otherwise processed

3. Data Subject Rights

3.1
Taking into account the nature of the processing, the Processor shall assist the Controller by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Controller’s obligations, as reasonably understood by Controller, to respond to requests to exercise Data Subject rights under Applicable Laws.

3.2
The Processor shall:
(a) promptly notify the Controller if any Processor receives a request from a Data Subject under any Applicable Laws in respect of the Controller’s Personal Data; and
(b) not respond to that request except on the documented instructions of the Controller or as required by Applicable Laws to which the Processor is subject, in which case the Processor shall to the extent permitted by Applicable Laws inform the Controller of that legal requirement before the Processor responds to the request

4. Obligations and Rights of the Controller

4.1
The Controller shall provide written Instructions to the Processor describing
(a) the types of Personal Data to collect
(b) the categories of Data Subjects
(c) the Lawful Basis for the collection of each type of Personal Data
(d) the consent statement to which the Data Subject must agree where the Lawful Basis for collection is consent
(e) how the collected Personal Data should be processed, and
(f) how long to retain the Personal Data

4.2
The Controller shall be responsible for determining the Lawful Basis for the collection of each type of Personal Data

4.3
The Controller warrants that
(a) there is at least one Lawful Basis for collecting every type of Personal Data which the Controller instructs the Processor to collect under this Agreement
(b) the Personal Data collected by the Processor on the Controller’s behalf will only be used by the Controller for the Lawful Basis disclosed to the Data Subject at the point of collection
(c) consent for collecting Personal Data, where required, will be obtained at the point of collection

4.4
The Controller, and not the Processor, is responsible for the security, including the avoidance of security breaches, of Personal Data which has been extracted by any means from the Passtab system

4.5
While the Processor will assist the Controller to obtain consent by using the technical means of the Passtab system, the Controller shall be responsible for obtaining consent from Data Subjects

4.6
The Controller has obtained satisfactory evidence from the Processor verifying the suitability of the Processor for the collection of Personal Data on behalf of the Controller, including
(a) the Processor’s policy for data breaches
(b) the Processor’s GDPR compliance statement and privacy notice
(c) technical and operational measures described in Schedule 1 of this Agreement
(d) the Processor’s policies for allowing data subjects to exercise their rights, including data subject access requests, erasure and rectification procedures and restriction of processing measures
(e) the confidentiality requirement of the Processor’s staff

5. Termination

5.1
The Controller or Processor can terminate this Agreement in accordance with Clause 14 of the Passtab Terms and Conditions of use.

6. Customer’s obligations and acknowledgment

6.1
In the event of any conflict or inconsistency between this Addendum and the Passtab Terms and Conditions of use the provisions of this Addendum shall prevail.

6.2
If a provision of this Addendum 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.

Schedule

 

1. Role of Passtab

a) The Controller has appointed the Processor to use the Passtab system to collect visitation data which includes Personal Data.

b) The duration of the processing is until termination in accordance with Clause 14 of the Passtab Terms and Conditions of use.

c) The processing activities relate to visitor registration and are for the purpose of allowing the Controller to
i. Control and record visitation
ii. Comply with the Controller’s security and emergency management policies

d) The Processor acts on behalf of the Controller to collect a range of types of Personal Data for a range of categories of Data Subjects. The details of the types and categories are determined by the Controller taking into account particular operational needs from time to time. However, typically, the types and categories would comprise
i. Types of Personal Data
• Visitor name and contact information
• Arrival and departure time
• Reason for visit
• Electronic signature
• Information relating to certificates
ii. Categories of Data Subjects
• Visitors
• Contractors
• Employees
• Students

2. Operation of Passtab

a) In operation, the Passtab system collects visitation data using iPads and/or other mobile devices. The visitation data is stored on a server. The Controller
i. has full visibility of data stored on the server
ii. has complete management control over the data, including the ability to erase
iii. has the ability to download all data from the Passtab system

3. Security

a) The Processor has appropriate technical and organisational means to ensure data security and protection:

a. Technical measures
i. Contracting Amazon Web Servcies (AWS) to host the Passtab database and the Invision CRM database
ii. Databases are on servers physically located in the European Union.
iii. Data backup being controlled by the AWS ‘back-up and restore’ system
iv. All data being continually replicated across fault-tolerant and self-healing database servers for maximum reliability.
v. Encrypting all data that is transmitted between the app/browser and server using the industry standard TLS 1.2 protocol
vi. Encryption of all data at rest
vii. Use of customer passwords that are minimum of six characters

b. Organisational measures
i. Password protected access for staff
ii. Scheduled data protection training for staff
iii. Scheduled data protection assessments for staff
iv. Scheduled audit of the end-to-end process with a focus on data security
v. Processing of all personal data within the Passtab system
vi. Appointment of a Data Protection Officer