End User Licence Agreement

Version 73418250v5: 24 May 2024
SurePact Holdings Pty Ltd, ACN 620 288 048
SurePact Pty Ltd, ACN 623 890 077

1. SCOPE AND APPLICATION

1.1  These terms and conditions (Terms) set out the terms on which SurePact Holdings Pty Ltd ACN 620 288 048 (weus, or our):

(a) allow you to access and use the SurePact grant management software (SurePact Software); and

(b) provide technical support (including when you submit a support request via electronic mail to support@surepact.com) in connection with the SurePact Software.

1.2 By clicking “Accept”, you agree to comply with and to be bound by these Terms.

1.3 If you do not agree to these Terms, you must not access or use the SurePact Software.

1.4 To the extent permitted by law, these Terms contain the entire agreement between you and us in relation to their subject matter.

2. ACCESS AND USE OF THE SUREPACT SOFTWARE

2.1  Subject to you accepting and complying with these Terms, we grant you a non-exclusive, revocable, limited right and licence to access and use the SurePact Software:

(a) for your internal business purposes, or the internal business purposes of your employer for or on behalf of which you are accessing the SurePact Software; and

(b) in accordance with these Terms.

2.2  The licence granted under clause 2.1 does not allow you to sublicense the SurePact Software to third parties.

User Credentials

2.3  You will be entitled to have a single login and password (which may change from time to time) to access and use the SurePact Software (User Credentials).

2.4  You must:

(a) keep your User Credentials secure and confidential, and take all necessary steps to ensure that your User Credentials are not disclosed, provided or made available to, or otherwise accessed by, any third party;

(b) not allow your User Credentials to be used by any third party; and

(c) notify us immediately after you become aware that your User Credentials have been disclosed, provided or made available to, or otherwise accessed by, any third party.

2.5  For the avoidance of doubt, we are not responsible for any loss or damage incurred by you as a result of your failure to secure your User Credentials.

3. OBLIGATIONS

General Obligations

3.1  You must:

(a) provide us with access to any information or data that we reasonably request from you through the SurePact Software in a form acceptable to us from time to time;

(b) have all resources necessary to receive the SurePact Software, including hardware, software, network, telecommunication resources and internet access acceptable to SurePact;

(c) use the SurePact Software in accordance with all applicable laws, including the Privacy Laws;

(d) cooperate with us, act reasonably, follow our reasonable directions and provide any assistance reasonably necessary in connection with these Terms and receipt of the SurePact Software; and

(e) not access or use the SurePact Software or the Content other than in accordance with these Terms.

3.2  You acknowledge and agree that:

(a) if you do not comply with clauses 2.4 or 3.1 then, subject to being provided with at least 10 Business Days’ prior written notice to remedy such non-compliance, we are not obliged to continue to supply the SurePact Software to you; and

(b) if you do not have the minimum hardware, software, network configuration and telecommunications access recommended by us, your ability to receive the SurePact Software may be diminished.

4. ACKNOWLEDGEMENTS

4.1  Subject to clause 14.1, you acknowledge and agree that, to the extent permitted by applicable law:

(a) while we use due care, skill and diligence in providing the SurePact Software, the SurePact Software may contain errors;

(b) the performance or availability of the SurePact Software or any part of its Content may change from time to time depending on a number of factors beyond our control, including without limitation, changes to third party software providers, the quantum of data being processed by the SurePact Software, your network, hardware and software configurations, and changes to internet topology. We make no representation or warranty in relation to the availability of the SurePact Software or the Content;

(c) we make no representation and give no warranty that the SurePact Software will be accurate, free from defects, errors or faults, or that it is fit for any particular purpose or function;

(d) your use of any third party product, content or service as part of or in connection with the SurePact Software may be subject to separate terms and conditions, whether imposed by us or by the relevant third party (and you must comply with such third party terms and conditions);

(e) you are responsible for any data, information, or other content that you upload or input into or through the SurePact Software (Your Data);

(f) the Third Party Content available on the SurePact Software is supplied by third parties and we do not review or verify this information;

(g) we make reasonable efforts to maintain the security and confidentiality of the SurePact Software but we cannot ensure or guarantee its safety. For example, hacking, vandalism, hardware or software failure may affect the security and confidentiality of the SurePact Software, and we take no responsibility for such events where we have neither caused nor contributed to their occurrence; and

(h) the SurePact Software may not be fully compatible with your mobile device or operating system.

5. RESTRICTIONS

5.1  You must not:

(a) perform any illegal or unlawful acts in connection with receipt or use of the SurePact Software;

(b) resupply, resell, sublicense, make available or otherwise allow any other person to access or use the SurePact Software or the Content;

(c) decompile, disassemble, reverse compile or otherwise reverse engineer all or any portion of the SurePact Software, including any source code, object code, algorithms, methods or techniques used or embodied therein;

(d) corrupt or misuse the SurePact Software; or

(e) use the SurePact software:

(i) to engage in fraudulent or unlawful behaviour;

(ii) to defame, menace or harass any third party;

(iii) to gain unauthorised access to or interfere with any third party’s online resources or systems including by any form of hacking;

(iv) in any manner that is likely to result in our systems, or that of any other person, being affected by virus, worm, Trojan or similar computer program;

(v) to circumvent any security measures;

(vi) to interfere with any third party’s online resources or systems including by carrying out a denial of service attack;

(vii) to access, store, distribute, view, create, provide (including to us) or otherwise transmit any information, data, material or content that:

(A) is unlawful, misleading, harmful, threatening, defamatory, offensive, infringing, harassing or discriminatory; or

(B) infringes any third party’s Intellectual Property Rights;

(viii) to distribute unsolicited emails to third parties including bulk unsolicited emails;

(ix) in a way that infringes any third party’s Intellectual Property Rights or other rights;

(x) in a way that disrupts, misuses or excessively uses the hardware, bandwidth access, storage space or other resources of ours or our customers; or

(xi) in any other manner that is unacceptable to SurePact, acting reasonably.

Suspension

5.2  Without limiting any other remedy we may have under these Terms or at law, we reserve the right to remove from the SurePact Software any of your materials or content that we consider to be inappropriate or otherwise be in breach of clause 5.1.

5.3  In addition to our rights under clause 5.2, we may suspend your access to the SurePact software at any time if we reasonably considers that there is a technical need to protect the SurePact Software or our network, or if:

(a) we reasonably suspect that you have done or may do any of the things described in clause 5.1 or otherwise breached these Terms;

(b) we reasonably believe that an unauthorised intrusion or use has occurred in respect of the SurePact Software;

(c) a third party (including our customer) alleges that you have done or threatened to do any of the things described in clause 5.1; or

(d) we receive a request or notice from a third party (including any regulatory body) requiring us to cease providing the SurePact Software to you or remove any content you have made available through the SurePact software,
and may maintain the suspension as long as reasonably required to address the cause of the suspension to our reasonable satisfaction.

6. INTELLECTUAL PROPERTY

Our IP

6.1  We (or licensors, as applicable) own all Intellectual Property Rights in the SurePact Software and the Content that you access or use through the SurePact Software (other than Your IP, Your Data and Third Party Content) (Our IP).

6.2  All modifications and enhancements to Our IP are also to be treated as Our IP. If you modify or enhance Our IP in any way, you assign to us (or the licensors as applicable) all Intellectual Property Rights in those modifications or enhancements immediately from creation.

Your IP

6.3  You retain all Intellectual Property Rights in Your Data and any material you provide to us through or in connection with the SurePact Software (Your IP).

6.4  You grant us a non-exclusive, irrevocable, sublicensable, royalty free, global licence to store, reproduce, use, modify, disclose and otherwise exploit Your Data for the purpose of operating the SurePact Software and our business, including to disclose Your Data to the SurePact customer to whom you have submitted an application for funding opportunities. This licence survives termination or expiry of these Terms.

Feedback

6.5  From time to time, we may request that you provide feedback to us in relation to your use of the SurePact Software (Feedback).

6.6  All Intellectual Property Rights in any Feedback you provide to us vests in us. You hereby assign to us all Intellectual Property Rights you may have in any Feedback immediately from creation.

7. YOUR WARRANTIES

7.1  By adding or uploading any Personal Information to the SurePact Software, or otherwise providing to us Your IP or Third Party Material, you warrant that, and it is a condition of these Terms that:

(a) you own or are the lawful licensee of the Intellectual Property Rights in Your IP; and

(b) you have all necessary consents, permissions, licences, regulatory approval or other authorities needed:

(i) to add or upload any Personal Information to the SurePact Software;

(ii) to provide to us Your IP or the Third Party Material; and

(iii) for us to use Your IP and any Third Party Material as set out in the Terms,

and that our use of the Personal Information, Your IP and any Third Party Material as set out in the Terms and our privacy policy (available on the website) will not infringe the Intellectual Property Rights, privacy rights, or other rights of any third party or cause us to be in breach of any applicable law.

8. CONFIDENTIALITY

Recipient must keep Confidential Information confidential

8.1  Each party must keep confidential all Confidential Information and must not use Confidential Information for the purpose other than fulfilling its obligations and exercising its rights under these Terms.

Disclosure exceptions

8.2  The obligations in clause 8.1 do not apply:

(a) to the extent necessary to enable a party to make any disclosure required by law;

(b) to the extent necessary to enable a party to perform its obligations under this Agreement;

(c) to any disclosure by us of any Confidential Information contained in Your Data you submit via SurePact Software to the relevant SurePact customer to whom you have submitted an application for funding opportunities;

(d) to any disclosure agreed in writing between the parties; or

(e) in respect of any portion of the Confidential Information which has entered the public domain other than as a result of a breach of this Agreement.

9. PRIVACY

9.1  We will collect and use your Personal Information and any Personal Information you upload or add to the SurePact Software in accordance with our privacy policy (available on the website).

9.2  If you are collecting, using or disclosing Personal Information that is not ‘yours’ as an individual, you must obtain consent from, and make any necessary disclosures to, all relevant individuals before disclosing their Personal Information to us under these Terms.

9.3  You must notify us immediately if you become aware of any breach of clause 9.2.

10. DE-IDENTIFIED DATA

10.1  Despite any other clause in these Terms, we and our suppliers may use any data which is de-identified for any purpose.

11. CHANGES TO THESE TERMS

11.1  We may change the terms and conditions of these Terms at any time. We will give you at least 30 days notice of any material changes to these Terms via the SurePact Software itself or by electronic communication.

11.2  In the event that we make changes to these Terms, you are not required to accept them if you do not agree with them, but you will not be able to, and must not continue to, use the SurePact Software unless you accept the amended Terms.

12. CHANGES TO THE SUREPACT SOFTWARE

12.1  We may (but are not obliged to) make changes to, or release upgrades in respect of, the SurePact Software from time to time. We will notify you of any material changes to the SurePact Software via the SurePact Software itself or by electronic communication.

12.2  In the event that we make any changes to the SurePact Software, you may not be able to use the SurePact Software unless you accept such changes.

13. TERMINATION

13.1  We may terminate the licence granted to you under clause 2.1 if you commit a material breach of these Terms and fail to remedy that breach within 30 days of receiving notice from the party requiring it to do so.

13.2  If:

(a) you do not accept any amended or new version of these Terms as contemplated in clause 11; or

(b) you do not accept any changes or modifications we have made to the SurePact Software as contemplated in clause 12,

then the licence granted to you under clause 2.1 will be immediately terminated.

13.3  Termination of these Terms will not affect clauses 6, 7, 8, 9, 10, 13, 14 and any provision of these Terms which is expressly or by implication intended to come into force on or after the termination.

14. LIMITATION OF LIABILITY

14.1  If we are liable to you in any way in relation to these Terms or the SurePact Software (including for any claim that we have failed to comply with any guarantee for which liability cannot be excluded but may be limited under the Competition and Consumer Act 2010 (Cth) or any other legislation), our liability to you is limited (at our election) to:

(a) replacing and resupplying the SurePact Software to you or paying the cost of having the SurePact Software replaced and resupplied to you; or

(b) resupplying the relevant service within the SurePact Software to you or paying the cost of having that service supplied to you again,
as applicable.

14.2  Subject to clause 14.1, we are not liable for any Consequential Loss however caused (including by our negligence), that you suffer or incur in connection with these Terms or the SurePact Software.

14.3  You are liable for, and indemnify us from and against, all loss or damage (including reasonable legal costs) that we incur or suffer in connection with:

(a) any breach of clauses 5; or

(b) any claims brought by a third party against us arising as a result of any alleged or actual infringement of a third party’s Intellectual Property Rights or other right in connection with Your IP.

Contribution and mitigation

14.4  Neither party will be liable to the other party for any loss or damage in connection with these Terms to the extent that the other party contributed to the loss or damage.

14.5  A party who suffers loss or damage in connection with these Terms must take reasonable steps to mitigate its loss or damage. The other party will not be responsible for any loss or damage to the extent that the injured party could have avoided or reduced the amount of loss or damage by taking reasonable steps to mitigate it.

Continuing obligation

14.6  Each indemnity in these Terms is a continuing obligation notwithstanding:

(a) any settlement of account; or

(b) the occurrence of any other thing,
and it is not necessary for us to incur expense or make payment before enforcing or making a claim under an indemnity.

15. GENERAL

15.1  The laws of Queensland, Australia govern these Terms. Each party irrevocably submits to the non-exclusive jurisdiction of the courts of Queensland, Australia and courts competent to hear appeals from those courts.

15.2  A right under these Terms may only be waived in writing signed by the party granting the waiver, and is effective only to the extent specifically set out in the waiver.

15.3  You acknowledge and agree that we may use subcontractors to provide the SurePact Software and the Content to you.

15.4  Each provision of these Terms will be read and construed as a separate and severable provision or part and if any provision is void or otherwise unenforceable for any reason then that provision will be severed and the remainder will be read and construed as if the severable provision had never existed.

16. DEFINITIONS AND INTERPRETATIONS

Definitions

16.1  In this Agreement:

Business Day means a day that is not a Saturday, Sunday or public holiday in Brisbane, Queensland.

Confidential Information means information that is by its nature confidential and is designated by a party as confidential or a party knows or ought to know is confidential, other than information which is or becomes public knowledge otherwise than by breach or any other confidentiality obligation.

Consequential Loss includes:

(a) any indirect, special or consequential loss (being a loss that does not arise naturally, that is, according to the ordinary course of things, whether or not the parties were aware of the possibility of such loss);

(b) loss of bargain;

(c) loss of revenues;

(d) loss of reputation;

(e) indirect loss;

(f) loss of profits;

(g) loss of actual or anticipated savings;

(h) lost opportunities, including opportunities to enter into arrangements with third parties; and

(i) loss or corruption of data.

Content means any information, data or other materials that we make available to you through the SurePact Software.

Intellectual Property Rights means all industrial and intellectual property rights, both in Australia and throughout the world, and includes any copyright, moral right, patent, registered or unregistered trade mark, registered or unregistered design, registered or unregistered plant breeder’s right, trade secret, knowhow, right in relation to semiconductors and circuit layouts, trade or business or company name, indication or source or appellation of origin or other proprietary right, or right of registration of such rights.

Our IP has the meaning given in clause 6.1.
Personal Information has the meaning given in the Privacy Act.

Privacy Act means the Privacy Act 1988 (Cth) and any ancillary rules, guidelines, orders, directions, directives, codes of conduct or other instruments made or issued under it, as amended from time to time.

Privacy Laws means:
(a) the Privacy Act;
(b) the Australian Privacy Principles (or APPs) contained in the Privacy Act; and
(c) all other applicable laws, regulations and registered privacy codes in respect of the processing of Personal Information.

SurePact Software means the grant management software known as ‘SurePact’, access to which is provided by us to you under these Terms, including any modifications, patches or new releases for that software made available from time to time.

Third Party Content means any information, data or other materials directly or indirectly supplier by third parties (including our customers) through the SurePact Software.

User Credentials has the meaning given in clause 2.3.

Your Data has the meaning given in clause 4.1(e).

Your IP has the meaning given in clause 6.3.

Interpretation

16.2  In this Agreement:

(a) the meaning of any general language is not restricted by any accompanying example, and the words ‘includes’, ‘including’, ‘such as’ or ‘for example’ (or similar phrases) do not limit what else might be included;

(b) a reference to this Agreement includes the agreement recorded by this Agreement;

(c) no rule of construction applies in the interpretation of this Agreement to the disadvantage of the party preparing the Agreement on the basis that it put forward this Agreement or any part of it;

(d) a reference to a party is a reference to SurePact or the Client, and a reference to the parties is a reference to both SurePact and the Client; and

(e) a reference to applicable law is to any relevant law (including any subordinate or delegated legislation or statutory instrument of any kind) of a jurisdiction in or out of Australia, and also to any relevant judgment, order, policy, guideline, official directive, code of conduct, authorisation or request (even if it does not have the force of law) of any government agency or regulatory body, such as a stock exchange, within or outside Australia.

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