SurePact Product Integration Terms and Conditions
Version v0001: 16 May 2024
SurePact Holdings Pty Ltd, ACN 620 288 048
SurePact Pty Ltd, ACN 623 890 077
Background
A The parties have entered, or will enter into, the Separate Agreement under which SurePact provides (among other things) access to the Client to use the SurePact Software.
B The Client wishes for SurePact to provide the Integration Services to enable the connection of the Client Provided API with the with the SurePact Software and allow the one-way transfer of certain data from the Client Software to the SurePact Software.
C The parties have agreed that SurePact is to provide the Integration Services to the Client on the terms of this Agreement.
Agreed terms
1. AGREEMENT AND ORDER OF PRIORITY
Maintenance
1.1 This Agreement consists of the following parts:
(a) the Special Conditions (if any);
(b) the Proposal; and
(c) these Terms.
1.2 If there is any inconsistency between any of the parts of this Agreement, the terms of the part first appearing in clause 1.1 will prevail to the extent of the inconsistency.
2. SUPPLY OF THE INTEGRATION SERVICES
Supply
2.1 Subject to the Client paying the Fees as specified in clause 3, SurePact will provide the Integration Services to the Client in accordance with this agreement.
2.2 SurePact will use due care, skill and diligence in providing the Integration Services.
2.3 SurePact must ensure the SurePact Representative is reasonably available to answer any questions the Client may have about the Integration Services.
Client requirements
2.4 The Client must:
(a) ensure that the Client Provided API exists, is current and can be used by SurePact to provide the Integration Services, and must promptly inform SurePact if the Client learns otherwise;
(b) notify SurePact of any:
(i) terms and conditions in relation to the Client Provided API with which SurePact must comply in providing the Integration Services; and
(ii) technical requirements relevant to the Client Provided API and the provision of the Integration Services,
prior to SurePact commencing the provision of the Integration Services (including, where the Client Provided API is a third party API, any terms and conditions and technical requirements communicated by the third party);
(c) ensure that, prior to SurePact commencing the provision of the Integration Services, the Client has obtained all licences, permissions or consents required to enable the connection of the Client API with the SurePact Software;
(d) perform the Client Tasks (if any);
(e) otherwise provide all information reasonably requested by SurePact, give SurePact all reasonable assistance it requires, to enable SurePact to provide the Integration Services;
(f) cooperate, follow SurePact’s reasonable directions and otherwise take all reasonable steps to facilitate the provision of the Integration Services; and
(g) ensure the Client Representative is reasonably available to answer any questions SurePact may have about the Client Provided API and the Client Software.
The Client acknowledges and agrees that if the Client does not comply with clause 2.4, SurePact is only obliged to use reasonable commercial endeavours to try and deliver the Integration Services.
Special Conditions
2.6 The parties agree to comply with the Special Conditions (if any).
Acknowledgments
2.7 The Client acknowledges that:
(a) subject to clause 8.5, any timeframes given by SurePact to the Client in relation to the provision of the Integration Services are estimates only and are not binding on SurePact;
(b) the Client’s use of the Client Provided API following completion of the Integration Services is solely at the Client’s risk;
(c) the Client is solely responsible for ensuring that the Client’s use of the Client Provided API to transfer certain data from the Client Software to the SurePact Software complies with all applicable laws, licences, terms and conditions;
(d) SurePact is not responsible for any outages, errors or downtime in connection with the Client Provided API or the Client Software; and
(e) the Integration Services do not include any ongoing maintenance activities in relation to the Client Provided API and that following completion of the Integration Services, any further services or assistance that the Client requests from SurePact in relation to the Client Provided API will be subject to a separate written agreement between the parties. Without limiting the generality of the foregoing, and by way of examples only, a separate written agreement between the parties will be required where, following completion of the Integration Services under this Agreement:
(i) the Client subsequently changes the Client Software;
(ii) the Client Software is subsequently updated;
(iii) the Client subsequently implements new or additional software;
(iv) the Client Provided API is subsequently amended or updated; or
(v) the Client fails to properly maintain the Client Software or the Client Provided API,
and the Client requests further services or assistance from SurePact in relation to the Client API.
Accuracy and reliance warranties
2.8 Each party represents and warrants, and it is a condition of this Agreement, that:
(a) all information provided by a party or on a party’s behalf to the other party is accurate and is not, whether by omission of information or otherwise, misleading;
(b) each party has not withheld from the other party any document, information or other fact material to the decision of the first party to enter into this Agreement; and
(c) neither party is relying on any representation made to the it by the other party or any Related Body Corporate of the other party (if any) before entry into this Agreement.
Repeating warranties
2.9 The representations made and warranties given in clauses 2.8 are regarded as repeated each day during the Term with respect to the facts and circumstances then subsisting.
3. FEES
Fees
3.1 The Client must pay the Fees to SurePact.
3.2 If there is a dispute about whether a Fee or other amount contemplated by this Agreement is payable, the Client may withhold the amount in dispute until the dispute is resolved. For clarity, the Client must:
(a) pay any non-disputed amounts in accordance with clause 3.5; and
(b) promptly pay any disputed amounts that are subsequently found to be payable.
3.3 The Fees may change during the Term in the manner (if any) contemplated by the Proposal.
Invoices
3.4 SurePact will invoice the Client for the Fees in accordance with the Proposal.
3.5 The Client must pay an invoice issued under clause 3.4 within 14 days after the date the invoice is issued, without set-off, deduction or counterclaim.
Deferral of performance
3.6 If the Client does not pay any Fees as required by this Agreement, SurePact may charge Interest on those unpaid amounts and may defer performance of all or any part of the Integration Services, without limiting any other remedies available to SurePact.
4. INTELLECTUAL PROPERTY RIGHTS
4.1 The Client acknowledges and agrees that all rights (including Intellectual Property Rights), title and interest in any Material created by SurePact in connection with this Agreement or in the provision of the Integration Services vests in SurePact immediately on creation.
4.2 SurePact grants to the Client a non-exclusive, royalty-free licence to exercise the Intellectual Property Rights in any Material referred to in clause 4.1 only to the extent necessary to allow the transfer of data from the Client Software to the SurePact Software via the Client Provided API.
4.3 The licence granted under clause 4.2 automatically terminates upon termination or expiry (for any reason) of the Separate Subscription and Services Agreement.
5. TERM AND TERMINATION
Term
5.1 This Agreement commences on the Commencement Date and continues in line with current subscription period and end date unless terminated earlier under clause 4.
Termination for breach
5.2 A party may terminate this Agreement by written notice to the other party if:
(a) a party commits a material breach of this Agreement and fails to remedy that breach within 10 days (or such other timeframe as may be agreed by the parties) of receiving written notice from the other party requiring it to do so; or
(b) an Insolvency Event occurs in relation to a party,
in which case this agreement is terminated immediately.
After termination
5.3 On termination of this Agreement:
(a) except where this Agreement is terminated under clause 5.2 for SurePact’s breach, the Client is not entitled to a refund of any Fees paid in advance. For clarity, where this Agreement is terminated under clause 5.2 for SurePact’s breach, then SurePact will promptly provide a pro rata refund of any Fees paid in advance in respect of the period following the date of termination;
(b) accrued rights or remedies of a party are not affected; and
(c) each party must deliver to the other party any of the other party’s Confidential Information or other property in the party’s care, custody or control.
Survival
5.4 Termination of this Agreement will not affect clauses 2.7, 4, 5.3, 6, 7, 8 or any provision of this Agreement which is expressly or by implication intended to come into force or continue on or after the termination.
6. CONFIDENTIAL INFORMATION
Obligations of confidence
6.1 Each party agrees to keep confidential, and not to use or disclose, other than as permitted by this Agreement, any Confidential Information of the other party provided to or obtained by that party before or after entry into this Agreement.
Exclusions
6.2 The obligations of confidence in clause 6.1 do not apply to Confidential Information:
(a) that is required to be disclosed by applicable law, or under compulsion of law by a court or government agency or by the rules of any relevant stock exchange or regulator, as long as the disclosing party:
(i) discloses the minimum amount of Confidential Information required to satisfy the law or rules; and
(ii) before disclosing any information, gives a reasonable amount of written notice to the other party and takes all reasonable steps (whether required by the other party or not) to maintain that Confidential Information in confidence;
(b) that is in the public domain except as a result of a breach of this Agreement or other obligation of confidence; or
(c) that is already known by, or rightfully received, or independently developed, by the recipient of that Confidential Information free of any obligation of confidence.
Restriction on disclosure
6.3 Each party may use and disclose Confidential Information of the other party only:
(a) for the purpose of performing its obligations under this Agreement; and
(b) either:
(i) with the prior written consent of the other party; or
(ii) to that party’s directors, agents, professional advisors, employees, contractors and permitted sub-contractors solely for the exercise of rights or the performance of obligations under this Agreement.
6.4 If either party discloses Confidential Information under clause 6.3, that party must ensure that the information is kept confidential by the person to whom it is disclosed and is only used for the purposes of performing the SurePact software under this Agreement.
Injunctive relief
6.5 Each party acknowledges that:
(a) the other party may suffer financial and other loss and damage if any unauthorised act occurs in relation to Confidential Information of the other party, and that monetary damages would be an insufficient remedy; and
(b) in addition to any other remedy available at law or in equity, the other party is entitled to injunctive relief to prevent a breach of, and to compel specific performance of clause 6.
De-Identified data
6.6 Despite any other clause in this Agreement, SurePact and its suppliers may use any data which is De-Identified for internal business purposes, including business and process improvement.
7. PRIVACY
Use of Personal Information
7.1 The Client must process, use and disclose all Personal Information:
(a) in compliance with the Privacy Laws (regardless of whether or not the Client is otherwise obliged to comply with the Privacy Laws); and
(b) only for the purposes of performing its obligations under this Agreement.
Treatment of Personal Information
7.2 Each party must obtain any necessary consents from, and make any necessary disclosures to, all relevant individuals for the purpose of disclosing their Personal Information to the other party under this Agreement, and must otherwise comply in all respects with its obligations under the Privacy Laws in respect of any Personal Information disclosed to the other party.
8. LIMITATION OF LIABILITY
Limitation
8.1 Subject to clauses 8.3 and 8.5, any liability of SurePact for loss or damage however caused (including by the negligence of SurePact), suffered by the Client in connection with this Agreement is limited to the Fees paid or payable by the Client under this Agreement.
8.2 The limitation set out in clause 8.1 is an aggregate limit for all claims, whenever made.
Consequential Loss
8.3 Subject to clause 8.5, neither party is liable for any Consequential Loss however caused (including by negligence), suffered or incurred by the other party in connection with this Agreement.
Australian consumer law
8.4 Except as contemplated by clause 8.5, nothing in this Agreement is intended to limit any rights of the Client under the Competition and Consumer Act 2010 (Cth).
8.5 If the Competition and Consumer Act 2010 (Cth) or any other legislation states that there is a guarantee in relation to any goods or services supplied by SurePact in connection with this Agreement and SurePact’s liability for failing to comply with that guarantee cannot be excluded but may be limited, then clauses 8.1 and 8.3 do not apply to that liability. Instead SurePact’s liability for that failure is limited to (at SurePact’s election):
(a) in the case of a supply of goods, SurePact replacing the goods or supplying equivalent goods, repairing the goods, paying the cost of replacing the goods or of acquiring equivalent goods, or paying the cost of having the goods repaired; or
(b) in the case of a supply of services, SurePact supplying the services again or paying the cost of having the services supplied again.
Contribution and mitigation
8.6 Neither party will be liable to the other party for any loss or damage in connection with this Agreement to the extent that the other party contributed to the loss or damage.
8.7 A party who suffers loss or damage in connection with this Agreement 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.
9. REPRESENTATIVES
9.1 SurePact Representative will represent SurePact for the day to day purposes of this Agreement.
9.2 The Client Representative will represent the Client for the day to day purposes of this Agreement.
10. FORCE MAJEURE
10.1 Each party will not be:
(a) in breach of this Agreement as a result of; or
(b) liable for,
any failure or delay in the performance of the other party’s obligations under this Agreement to the extent that the failure or delay is wholly or partially caused, directly, or indirectly, by a Force Majeure Event or any act or omission of the other party.
11. COSTS AND TAXES
Costs
11.1 Each party bears its own costs in relation to the preparation and signing of this Agreement.
Stamp duty
11.2 The Client must pay all stamp duty (including penalties and interest) assessed or payable in connection with this Agreement.
Other taxes
11.3 Subject to clause 11, the Client must pay all taxes, duties, government charges and other taxes of a similar nature (including fines, penalties and interest) imposed or levied in Australia or overseas in connection with the performance of this Agreement.
GST
11.4 Any words capitalised in clause 11 and not already defined in clause 13 have the meaning given to those words in the GST Act.
11.5 Except under clause 11, the consideration for a Supply made under or in connection with this Agreement does not include GST.
11.6 If a Supply made under or in connection with this Agreement is a Taxable Supply, then at or before the time any part of the consideration for the Supply is payable:
(a) the Recipient must pay the GST Act Supplier an amount equal to the total GST for the Supply (in addition to, and in the same manner as, the consideration otherwise payable under this Agreement for that Supply); and
(b) the GST Act Supplier must give the Recipient a Tax Invoice for the Supply.
11.7 For clarity, the GST payable under clause 11.6 is correspondingly increased or decreased by any subsequent adjustment to the amount of GST for the Supply for which the GST Act Supplier is liable, however caused.
11.8 If either party has the right under this Agreement to be reimbursed or indemnified by another party for a cost incurred in connection with this Agreement, that reimbursement or indemnity excludes any GST component of that cost for which an Input Tax Credit may be claimed by the party being reimbursed or indemnified, or by its Representative Member, Joint Venture Operator or other similar person entitled to the Input Tax Credit (if any).
11.9 Where a Tax Invoice is given by the GST Act Supplier, the GST Act Supplier warrants that the Supply to which the Tax Invoice relates is a Taxable Supply and that it will remit the GST (as stated on the Tax Invoice) to the Australian Taxation Office.
11.10 Where a Supply made under or in connection with this Agreement is a Progressive or Periodic Supply, clause 11.6 applies to each component of the Progressive or Periodic Supply as if it were a separate Supply.
12. GENERAL
12.1 The laws of Queensland govern this Agreement.
12.2 Each party irrevocably submits to the non-exclusive jurisdiction of the courts of Queensland and courts competent to hear appeals from those courts.
12.3 The Client must not assign, in whole or in part, or novate the Client’s rights and obligations under this Agreement without the prior written consent of SurePact.
12.4 SurePact may, on notice to the Client, assign its interest under this Agreement subject to the assignment not having a material adverse impact of the Client’s rights under the Agreement.
12.5 Unless expressly stated otherwise, this Agreement does not create a relationship of employment, trust, agency or partnership between the parties.
12.6 A clause or part of a clause of this Agreement that is illegal or unenforceable may be severed from this Agreement and the remaining clauses or parts of the clause of this Agreement continue in force.
12.7 This Agreement supersedes all previous agreements about its subject matter. This Agreement embodies the entire agreement between the parties. For the avoidance of doubt, this Agreement is separate to, and does not replace or modify, the Separate Subscription and Services Agreement.
12.8 To the extent permitted by law, any statement, representation or promise made in any negotiation or discussion, is withdrawn and has no effect except to the extent expressly set out or incorporated by reference in this Agreement.
12.9 Except as expressly set out in this Agreement, each party acknowledges and agrees that it does not rely on any prior conduct or representation by the other party in entering into this Agreement.
12.10 SurePact may subcontract the performance of all or any part of SurePact’s obligations under this Agreement but will remain liable to the Client for the acts and omissions of any subcontractors as if they were the acts and omissions of SurePact.
12.11 A right under this Agreement 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.
12.12 The parties must comply with all applicable laws in connection with this Agreement and the Services.
12.13 This Agreement may be signed in any number of counterparts. All counterparts together make one instrument.
13. DEFINITIONS AND INTERPRETATION
Definitions
13.1 In this Agreement:
API means application programming interface.
Commencement Date means the date specified in the Proposal.
Confidential Information of a party means the terms of this Agreement and any information:
(a) relating to the business and affairs of that party;
(b) relating to the customers, clients, employees, sub-contractors or other persons doing business with that party;
(c) which is by its nature confidential;
(d) which is designated as confidential by that party; or
(e) which the other party knows or ought to know, is confidential,
and includes all trade secrets, knowhow, financial information and other commercially valuable information of that party, and in the case of SurePact, includes the Fees.
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.
Corporations Act means Corporations Act 2001 (Cth).
Client means the customer specified in the Proposal.
Client Provided API means the API specified in the Proposal that will be provided by the Client under this Agreement to enable the provision of the Integration Services by SurePact.
Client Representative means the customer representative specified in the Proposal.
Client Software means the Client software specified in the Proposal.
Client Tasks means the tasks specified in the Proposal to be performed by the Client under this Agreement.
Fees means the fees specified in the Proposal.
Force Majeure Event means any occurrence or omission outside a party’s reasonable control, as a direct or indirect result of which the party relying on the event is prevented from or delayed in performing its obligations under this Agreement (other than a payment obligation), and includes:
(a) a physical natural disaster including fire, flood, lightning or earthquake;
(b) war or other state of armed hostilities (whether war is declared or not), insurrection, riot, civil commotion, act of public enemies, national emergency (whether in fact or in law) or declaration of martial law;
(c) epidemic or quarantine restriction;
(d) ionising radiation or contamination by radioactivity from any nuclear waste or from combustion of nuclear fuel;
(e) confiscation, nationalisation, requisition, expropriation, prohibition, embargo, restraint or damage to property by or under the order of any government agency;
(f) law taking effect after the date of this Agreement;
(g) disruption or unavailability of the internet;
(h) strike, lock out, stoppage, labour dispute or shortage including industrial disputes that are specific to a party or the party’s subcontractors; and
(i) failure of a third party service provider to SurePact to provide services, including hosting services.
GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth).
GST Act Supplier means the entity making the Supply.
Insolvency Event means any of the following events:
(a) a controller (as defined in the Corporations Act) is appointed to the party, or over any of the property of the party;
(b) the party becomes bankrupt;
(c) a controlling trustee is appointed to the party, or over any of the property of the party;
(d) the party or the party’s property becomes subject to a personal insolvency arrangement under part X Bankruptcy Act or a debt agreement under part IX Bankruptcy Act;
(e) the party is unable to pay its debts when they become due and payable;
(f) the party ceases to carry on business; or
(g) any event happens in Australia or any other country or territory in respect of a party that is similar to any of the events or circumstances referred to in this definition.
Any event that takes place as part of a solvent reconstruction, amalgamation, merger, or consolidation, on terms approved in writing by the other party beforehand and in compliance with those terms is excluded from this definition.
Integration Services means the integration services specified in the Proposal.
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.
Interest means interest on any payment owing under this Agreement calculated:
(a) at the rate which is 2% in excess of the published Westpac Banking Corporation variable interest rate for personal loans or, if lower, the maximum rate permitted by applicable law; and
(b) daily from the date on which such payment was due to the date on which the payment is made (both inclusive) including the relevant interest.
Material includes software, source code, object code, designs, test cases, documents, equipment, reports, technical information, customer lists, studies, plans, charts, drawings, calculations, tables, trade marks, logos, schedules and data stored by any means.
Personal Information has the meaning given to that term by 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.
Progressive or Periodic Supply means a Taxable Supply that satisfies the requirements of section 156–5 GST Act.
Related Body Corporate has the meaning given to that term by section 9 Corporations Act.
Separate Subscription and Services Agreement means the separate agreement between the parties as further described in the Proposal.
Special Conditions means the special conditions specified in the Proposal (if any).
SurePact means SurePact Holdings Pty Ltd ACN 620 288 048 of Level 10, 15 Green Square Close, Fortitude Valley, Brisbane 4006.
SurePact Representative means SurePact representative specified in the Proposal.
SurePact software means the SurePact software specified in the Proposal.
Term means the term contemplated by clause 4.
Interpretation
13.2 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.
