SurePact Product Terms and Conditions

Version v0224: 21 February 2024
SurePact Holdings Pty Ltd, ACN 620 288 048
SurePact Pty Ltd, ACN 623 890 077

Background

The Client wishes for SurePact to provide the Services.

The parties have agreed that SurePact is to provide the Services to the Client on the terms of this document.

Agreed terms

1. SUPPLY OF THE SUREPACT SOFTWARE

Supply

1.1  Subject to the Client paying the Fees as specified in clause 6, SurePact will provide the SurePact software to the Client by this agreement and relevant SurePact policies.

Monitoring, back up and security

1.2  The Client acknowledges that:

(a) the Client must not resupply the SurePact software to third parties, or permit third parties to access the SurePact software in a manner inconsistent with SurePact’s policies in force from time to time;

(b) the Client must ensure that its computer network is secure, and SurePact is not responsible for the security of the Client Material or the computer network of the Client; and

1.3  SurePact will apply the following security and audit standards as provisioned from time to time by its third party platform Microsoft Azure (or such other platform as SurePact may use from time to time):

(a) passwords and other sensitive information determined by SurePact will be stored in an encrypted format;

(b) Client Data is, as far as reasonably possible, encrypted in transit and at rest;

(c) a backup regime for the Client Data is implemented so that backups are made (as a complete database) to ensure the Client Data can be recovered following (and only following) a critical system failure;

(d) take reasonable steps to protect sensitive information online in accordance with industry best practices; and

(e) take reasonable steps to notify the Client of any data breach involving the SurePact software or the Client Data which is likely to result in serious harm.

Client requirements

1.4 The Client must:

(a) only allow Permitted Users to access the SurePact software;

(b) notify SurePact if it requires additional Permitted Users and pay the relevant Fee on a pro-rata basis calculated from the date the additional Permitted Users are required until the expiry of the Initial Period

(c) ensure those Permitted Users who no longer require access to the SurePact software are deactivated;

(d) keep the username and passwords of the Permitted Users secure, and SurePact is not responsible for any loss or damage incurred by the Client as a result of unauthorised use of Permitted Users’ accounts;

(e) provide SurePact and its third party support providers with any information and assistance necessary to enable SurePact to provide the SurePact software and Support Services;

(f) give SurePact access to any Client Data requested by SurePact in a form acceptable to SurePact;

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

(h) without limiting clause 9, ensure that the Client has necessary consents for SurePact to store and use any Personal Information entered in the SurePact software in the manner contemplated by this document, including to transfer that Personal Information outside Australia;

(i) comply with and acknowledge the following requirements (as appropriate):

(i) each login must only be used for one user of the SurePact Software (client system administrator may enter team/crew data); 

(ii) SurePact may, subject to providing the Client with a reasonable period of notice, suspend your service if it detects abnormal usage patterns; and

(iii) SurePact may suspend your service if your use of the service degrades performance for other users;

(j) cooperate with SurePact, act reasonably and follow SurePact’s directions in connection with this document and receipt of the SurePact software; and

(k) ensure the Client Representative is reasonably available to answer any questions SurePact may have about the performance of the SurePact software.

1.5  The Client acknowledges and agrees that:

(a) if the Client does not comply with clause 1.4 then, subject to being provided with a reasonable period of notice to remedy such non-compliance, SurePact is not obliged to supply the SurePact software to the Client;

(b) the Client must pay SurePact’s standard rates for any use of the SurePact software other than as specified in this document; and

(c) if the Client does not have the minimum hardware, software, network configuration and telecommunications access recommended by SurePact, the Client’s ability to receive the SurePact software may be diminished.

1.6  SurePact must ensure the SurePact Representative is reasonably available to answer any questions the Client may have about the performance of the SurePact software.

Acknowledgment

1.7  Subject to clause 10.5, the Client acknowledges and agrees that:

(a) any timeframes given by SurePact to the Client in relation to the SurePact software are estimates only and are not binding on SurePact;

(b) the SurePact software may contain errors;

(c) the performance or availability of the SurePact software may change from time to time depending on a number of factors beyond SurePact’s control, including without limitation, changes to third party software providers, the quantum of data being processed by the SurePact software, the Client’s network, hardware and software configurations, and changes to internet topology; and

(d) SurePact makes no representation and gives no warranty:

(i) that the SurePact software will be free from defects, fit for any particular purpose or function as specified in the Documentation;

(ii) that the APIs will be compatible with third party products or services; and

(iii) about the suitability or performance of any third party service provider referred to the Client by SurePact.

Upgrades

1.8  SurePact may release upgrades from time to time in respect of the SurePact software (Upgrade).

1.9  SurePact will take all reasonable efforts to provide at least seven days’ written notice before an Upgrade is released if the Upgrade will disrupt to the availability of the SurePact software per clause 2.3; or

Prohibited conduct

1.10  The Client and SurePact must not:

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

(b) send unsolicited emails from another network that appear to have been sent using the SurePact software or from hardware SurePact uses to provide the SurePact software.

1.11  The Client must not use the SurePact software:

(a) to engage in fraudulent behaviour;

(b) to defame or harass any third party;

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

(d) to circumvent any security measures;

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

(f)  to distribute, view or create any material that:

(i) is or may be pornographic, defamatory, offensive, obscene, illegal or unlawful; or

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

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

(h) to use a non-existent email return address;

(i) to use an open email relay;

(j) in a way that infringes any third party’s Intellectual Property Rights;

(k) in a way that disrupts, misuses or excessively uses the hardware, bandwidth access, storage space or other resources of SurePact or SurePact’s other customers; or

(l) in any other manner that is unacceptable to SurePact or the Client.

Suspension

1.12  Without limiting any other remedy SurePact may have under this document or at law, SurePact may suspend the Client’s access to the SurePact software at any time if it reasonably considers that there is a technical need to protect the SurePact software or SurePact’s network, or if:

(a) SurePact reasonably suspects that the Client has done or may do any of the things described in clause 1.10 or clause 1.11 or otherwise breached this agreement;

(b) SurePact reasonably believes that an unauthorised intrusion or use has occurred in respect of the SurePact software;

(c) a third party alleges that the Client has done or threatened to do any of the things described in clause 1.10 or clause 1.11; or

(d) SurePact receives a request or notice from a third party (including any regulatory body) requiring SurePact to cease providing the SurePact software to the Client or remove any content the Client makes available through the SurePact software,

and may maintain the suspension as long as reasonably required to address the cause of the suspension to SurePact’s reasonable satisfaction.

2. SERVICE LEVEL AND MAINTENANCE

Service Levels

2.1  SurePact will use all reasonable commercial endeavours to meet the Service Levels.

Maintenance

2.2  The Service Level will not apply to any period of time the SurePact software is unavailable due to maintenance notified to the Client in accordance with clause 2.3.

2.3  Subject to clause 2.4, SurePact will:

(a) make reasonable efforts to provide forty-eight (48) hours prior notice for scheduled Planned Downtime not to exceed one (1) hour;

(b) make reasonable efforts to provide at least seventy-two (72) hours prior notice for all Planned Downtime scheduled to last one (1) hour or more; and

(c) provide the Client with at least 7 days’ notice of any maintenance to the SurePact software which will result in the SurePact software failing to reach the Service Levels.

2.4  The Client acknowledges and agrees that SurePact may from time to time be required to take urgent maintenance to protect the security, functionality and integrity of the SurePact software.  SurePact will take all reasonable steps to provide prior notice to the Client and otherwise minimise the duration of any urgent maintenance required.  Where practicable, that maintenance will be conducted outside office hours.

3.  OTHER SERVICES

Supply

3.1  Subject to the Client paying the Fees as specified in clause 6, SurePact will provide the Support Services and Implementation Services to the Client in the manner specified in the Schedule.

Client requirements

3.2  The Client must:

(a) provide all information (including data and log in details of specific Permitted Users) reasonably requested by SurePact to allow SurePact to diagnose, identify and attempt to remedy faults or errors with the SurePact software;

(b) give SurePact all reasonable assistance it requires to enable the Support Services and Implementation Services to be provided; and

(c) cooperate and otherwise take all reasonable steps to facilitate the delivery of Support Services and Implementation Services.

3.3  The Client acknowledges and agrees that if the Client does not comply with clause 3.2, SurePact is only obliged to try and deliver the Support Services and Implementation Services.

3.4  The Client acknowledges and agrees that the Support Services and Implementation Services may not be error free.

4. INTELLECTUAL PROPERTY

Licence of SurePact Material and Derived Material

4.1  SurePact grants to the Client a non‑exclusive, non‑transferable licence in Australia to:

(a) receive the SurePact software during the Term;

(b) use, adapt, modify and publish (but not commercialise) the Derived Material; and

(c) use the SurePact Material only to the extent necessary to receive the SurePact software, Support Services and Implementation Services.

No assignment

4.2  The SurePact Material and Derived Material remain the property of SurePact.

4.3  SurePact does not assign to the Client any Intellectual Property Rights (including future Intellectual Property Rights):

(a) in the SurePact software;

(b) in the Derived Material;

(c) in the SurePact Material; or

(d) otherwise created by SurePact in the performance of the SurePact software.

Licence of Client Material

4.4  The Client grants to SurePact a non‑exclusive, irrevocable, global licence to exercise the Intellectual Property Rights in any Client Material in connection with SurePact providing SurePact software to the Client, including to use and modify the Client Material for the purpose of providing the Services and as otherwise contemplated by this agreement.

4.5  The licence granted under clause 4.4 includes the right to sublicence to third parties, including third parties under clause 4.6.

4.6  The Client acknowledges and agrees that if the Client uses third party services or products which interface with the SurePact software:

(a) the Client Data may be accessed by that third party;

(b) SurePact has no control over that third party’s use of the Client Data; and

(c) SurePact is not liable for any loss or damage, however caused, in connection with that third party’s access to the Client Data.

No use of SurePact’s marks

4.7  The Client must not, and must ensure that its officers, employees, agents and subcontractors do not, use the trademarks or logos of SurePact except with the prior written consent of SurePact.

Client name

4.8  SurePact may use the Client’s name and trade mark on SurePact’s website and advertising or promotional material, and may disclose that the Client is a customer of SurePact.

Infringement

4.9  The parties agree that although copyright in the SurePact software is not infringed in circumstances contemplated by sections 47D, 47E and 47F Copyright Act 1968 (Cth), the Client agrees not to:

(a) decompile, disassemble or reverse engineer the whole or any part of the SurePact software;

(b) use the SurePact software other than as expressly permitted under this document;

(c) make any modification to the SurePact software; or

(d) merge all or any part of the SurePact software with any other software.

Acknowledgment

4.10  The Client acknowledges that:

(a) SurePact retains all Intellectual Property Rights in the SurePact Material and Derived Material;

(b) the Client must not modify the SurePact software or the SurePact Material; and

(c) nothing in this document is intended to give the Client any Intellectual Property Rights or other rights in any of the SurePact Material, Derived Material or the SurePact software.

4.11  If the Client breaches clauses 4.9 or 4.10(b), then without limiting any remedy of SurePact, the Client assigns all Intellectual Property Rights in any Improvements to SurePact.  The Client must do all things necessary to give effect to this clause 4.11.

5. WARRANTIES

SurePact software warranty

5.1  SurePact warrants that, to the best of its actual knowledge as at the Commencement Date, use of the SurePact software in accordance with this agreement will not infringe the Intellectual Property Rights or other rights of any third party. This warranty does not apply to the extent it relates to a claim arising from the combination of the SurePact software with third party products or services.

Client warranty

5.2  The Client warrants that:

(a) any site at which the SurePact software are performed will be safe;

(b) the Client will not do, or omit to do, anything reasonably required by SurePact to allow SurePact to comply with its obligations under this document; and

(c) use of the Client Material by SurePact as set out in this document will not infringe the Intellectual Property Rights or other rights of any third party.

Accuracy and reliance warranties

5.3  The Client represents and warrants, and it is a condition of this document, that:

(a) all information provided by the Client or on the Client’s behalf to SurePact is accurate and is not, whether by omission of information or otherwise, misleading;

(b) the Client has not withheld from SurePact any document, information or other fact material to the decision of SurePact to enter into this document; and

(c) the Client is not relying on any representation made to the Client by SurePact or any Related Body Corporate of SurePact (if any) before entry into this document.

Repeating warranties

5.4  The representations made and warranties given in clauses 5.2 and 5.3 are regarded as repeated each day during the Term with respect to the facts and circumstances then subsisting.

No warranty

5.5  Subject to clause 10.5 SurePact makes no representation and gives no warranty:

(a) that the SurePact software, any hardware, software or other goods supplied in connection with this document will be uninterrupted, error free, or be fit for any particular purpose;

(b) that the SurePact software will be available at all times; or

(c) the Documentation is complete, accurate or sufficient to explain the operation of the SurePact software.

6. FEES

Fees

6.1  The Client must pay the Fees to SurePact.

6.2  If there is a dispute about whether a Fee or other amount contemplated by this document is payable, the Client may withhold 50% of the amount in dispute.

6.3  The Fees may change during the Term in the manner contemplated by the Schedule.

Invoices

6.4  SurePact will invoice the Client for the Fees in accordance with the Schedule.

6.5  The Client must pay an invoice issued under clause 6.4 within 14 days after the date the invoice is issued, without set-off, deduction or counterclaim.

Deferral of performance

6.6  If the Client does not pay any Fees as required by this document, SurePact may charge Interest on those unpaid amounts and may defer performance of all or any part of the SurePact software (whether or not relevant to those Fees), or suspend the Client’s access to all SurePact software, until the outstanding Fees are paid, without limiting any other remedies available to SurePact.

7. TERM AND TERMINATION

Term

7.1  This document commences on the Commencement Date and continues unless terminated earlier under clause 7.  In the three months preceding the end of the Initial Period, the parties will meet to negotiate in good faith the possible extension or renewal of this document, together with any relevant amendments to apply during that extension or renewal.

Termination for breach

7.2  A party may terminate this document by written notice to the other party if:

(a) a party commits a material breach of this document and fails to remedy that breach within 45 days (or such other timeframe as may be agreed by the parties) of receiving 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

7.3  On termination of this document:

(a) the Client is not entitled to a refund of any Fees paid in advance;

(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.

7.4  SurePact may, on the expiry of 6 months of the termination of this document, delete or destroy the Client Material and data of the Client and SurePact may charge the Client for any retention or extraction of this Client Material or data.

Survival

7.5  Termination of this document will not affect clauses 4.4, 4.7, 4.9, 7.3, 8, 9, 10 or any provision of this document which is expressly or by implication intended to come into force or continue on or after the termination.

8. CONFIDENTIAL INFORMATION

Obligations of confidence

8.1  Each party agrees to keep confidential, and not to use or disclose, other than as permitted by this document, any Confidential Information of the other party provided to or obtained by that party before or after entry into this document.

Exclusions

8.2  The obligations of confidence in clause 8.1 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 document 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

8.3  Each party may use and disclose Confidential Information of the other party only:

(a) with the prior written consent of the other party; or

(b) 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 document.

8.4  If either party discloses Confidential Information under clause 8.3, 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 document.

Injunctive relief

8.5  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 8.

De-Identified data

8.6  Despite any other clause in this document, SurePact and its suppliers may use any data which is de-identified for internal business purposes, including business and process improvement.

9. PRIVACY

Use of Personal Information

9.1  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 document.

Treatment of Personal Information

9.2  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 document, and must otherwise comply in all respects with its obligations under the Privacy Act in respect of any Personal Information disclosed to the other party.

9.3  Each party must give all assistance required by the other party from time to time in relation to compliance by the other party with the Privacy Act, or any investigation, request or enquiry (formal or otherwise) from the Privacy Commissioner regarding the Personal Information disclosed to the other party under this document.

9.4  Each party indemnifies the other party against all costs, expenses, losses, proceedings and claims of any nature suffered, brought or incurred directly or indirectly as a result of a breach by the party of its obligations under clause 9.

9.5  Each party must:

(a) comply with all reasonable directions of  the other party, in connection with the obligations of the parties under the Privacy Laws or in connection with policies (including privacy policies) developed by the other party from time to time to comply with the Privacy Laws;

(b) comply with any direction of the other party, or an individual to whom the Personal Information relates, about access to, or correction of, Personal Information;

(c) comply with any request or direction of the other party, arising directly from or in connection with the exercise of the functions of the Privacy Commissioner under the Privacy Laws, or otherwise including the issuing of any guideline about the handling of Personal Information; and

(d) not disclose Personal Information overseas without the prior written consent of the other party, and if that consent is given, the party must take reasonable steps to ensure the recipient complies with the Privacy Laws and is required to comply with the directions of the other party about Personal Information.

9.6  Each party must immediately notify the other party if it becomes aware that a disclosure of Personal Information may be required by law.

Duties

9.7  Each party must take all necessary steps to ensure that:

(a) it uses and discloses Personal Information only as required by the other party’s privacy policy and the Privacy Laws and solely for the purpose of performing its obligations under this document;

(b) the Personal Information it uses and discloses is protected against loss and against unauthorised access, use, interference, modification, disclosure or other misuse; and

(c) only personnel authorised by the other party have access to the Personal Information.

9.8  Each party must notify the other party immediately if it becomes aware of any breach of clause 9.

10. LIMITATION OF LIABILITY

Limitation

10.1  Subject to clauses 10.3 and 10.5, any liability of SurePact for loss or damage however caused (including by the negligence of SurePact), suffered by the Client in connection with this document is limited, at the election of SurePact, to:

(a) the Fees paid by the Client under this document in the 12 months before the Client first suffered loss or damage in connection with this document; or

(b) re‑performance of the particular SurePact software.

10.2  The limitation set out in clause 10.1 is an aggregate limit for all claims, whenever made.

Consequential Loss

10.3  Subject to clause 10.5, SurePact is not liable for any Consequential Loss however caused (including by the negligence of SurePact), suffered or incurred by the Client in connection with this document.

Australian consumer law

10.4  Except as contemplated by clause 10.5, nothing in this document is intended to limit any rights of the Client under the Competition and Consumer Act 2010 (Cth).

10.5  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 document and SurePact’s liability for failing to comply with that guarantee cannot be excluded but may be limited, then clauses 5.5, 10.1, and 10.3 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.

Client indemnity

10.6  The Client is liable for, and indemnifies SurePact from and against, all loss or damage (including legal costs) incurred or suffered by SurePact however caused in connection with:

(a) the Client’s use of the SurePact software;

(b) personal injury or death of any person in connection with the Client’s use of the SurePact software; or

(c) any alleged or actual infringement of a third party’s Intellectual Property Rights or other right in connection with the Client Material or the SurePact software.

Continuing obligation

10.7  Each indemnity in this document is a continuing obligation notwithstanding:

(a) any settlement of account; or

(b) the occurrence of any other thing,

and it is not necessary for SurePact to incur expense or make payment before enforcing or making a claim under an indemnity.

11. REPRESENTATIONS

11.1  SurePact Representative will represent SurePact for the day to day purposes of this document.

11.2  The Client Representative will represent the Client for the day to day purposes of this document.

12. REPRESENTATIONS

12.1  Each party will not be:

(a) in breach of this document as a result of; or

(b) liable for,

any failure or delay in the performance of the other party’s obligations under this document 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. 

13. COSTS AND TAXES

Costs

13.1  Each party bears its own costs in relation to the preparation and signing of this document.

Stamp duty

13.2  The Client must pay all stamp duty (including penalties and interest) assessed or payable in connection with this document.

Other taxes

12.3  Subject to clause 13, 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 document.

GST

13.4  Any words capitalised in clause 13 and not already defined in clause 16 have the meaning given to those words in the GST Act.

13.5  Except under clause 13, the consideration for a Supply made under or in connection with this document does not include GST.

13.6  If a Supply made under or in connection with this document 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 document for that Supply); and

(b) the GST Act Supplier must give the Recipient a Tax Invoice for the Supply.

13.7  For clarity, the GST payable under clause 13.6 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.

13.8  If either party has the right under this document to be reimbursed or indemnified by another party for a cost incurred in connection with this document, 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).

13.9  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.

13.10  Where a Supply made under or in connection with this document is a Progressive or Periodic Supply, clause 13.6 applies to each component of the Progressive or Periodic Supply as if it were a separate Supply.

14. GENERAL

14.1  The Special Conditions (if any) apply as terms of this document.  If there is any inconsistency between the terms of this document and the Special Conditions, the Special Conditions will apply and prevail to the extent of such inconsistency.

14.2  The laws of Queensland govern this document.

14.3  The Client must not assign, in whole or in part, or novate the Client’s rights and obligations under this document without the prior written consent of SurePact.

14.4  SurePact may assign its interest under this document.

14.5  Unless expressly stated otherwise, this document does not create a relationship of employment, trust, agency or partnership between the parties.

14.6  A clause or part of a clause of this document that is illegal or unenforceable may be severed from this document and the remaining clauses or parts of the clause of this document continue in force.

14.7  This document supersedes all previous agreements about its subject matter.  This document embodies the entire agreement between the parties.

14.8  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 document.

14.9  Except as expressly set out in this document, each party acknowledges and agrees that it does not rely on any prior conduct or representation by the other party in entering into this document.

14.10  SurePact may subcontract the performance of all or any part of SurePact’s obligations under this document.

14.11  A right under this document 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.

14.12  Without limiting any other remedies available to SurePact, if the Client fails to pay any amount payable under this document, the Client must pay Interest on that amount.

14.13  The parties must comply with all applicable laws in connection with receipt of the SurePact software.

14.14  This document may be signed in any number of counterparts.  All counterparts together make one instrument.

15. DEFINITIONS AND INTERPRETATION

Definitions

15.1  In this document:

SurePact software means the SurePact software set out in the Schedule.

Client Scope of Works means the document of that name issued/agreed on or around the date of this agreement.

Commencement Date means the date specified in the Schedule.

Confidential Information of a party means the terms of this document 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 SurePact software, the SurePact Material and the Fees.

Consequential Loss includes:

(a) loss of bargain;

(b) loss of revenues;

(c) loss of reputation;

(d) indirect loss;

(e) loss of profits;

(f) consequential loss;

(g) loss of actual or anticipated savings;

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

(i) loss or damage in connection with claims against the Client by third parties; and

(j) loss or corruption of data.

Corporations Act means Corporations Act 2001 (Cth).

Client means the customer specified in the Schedule.

Client Data means any data provided by the Client to SurePact or used by the Client in connection with the SurePact software.

Client Material means the Client Data and any material provided by or to which access is given by the Client to SurePact for the purposes of this document including documents, equipment, reports, technical information, studies, plans, charts, drawings, calculations, tables, trademarks, logos, schedules and data stored by any means.

Client Representative means the customer representative specified in the Schedule.

De-Identified means data or information (including commercially sensitive information) which has been de-identified so that the identity of the individual or entity (as the case may be) is no longer apparent on the face of the data or information.

Derived Material means any material created or produced by the SurePact software using the Client Data including documents, equipment, reports, technical information, studies, plans, charts, drawings, calculations, tables, trademarks, logos, schedules and data stored by any means.

Dispute Notice means a notice referred to in clause 14.2.

Documentation means any document provided by SurePact to the Client in connection with the SurePact software.

Fees means the fees specified in the Schedule.

First Level Discussions means discussions referred to in clause 14.4.

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 document (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 document;

(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.

Implementation Services means the implementation services set out in the Client Project Scope.

Improvements means improvements, modifications and developments made by the Client to the SurePact software or SurePact Material.

Initial Period means the initial period specified in the Schedule.

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.

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 document calculated:

(a) at the rate which is 5% 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.

Permitted Users means the premium users specified in the Schedule.

Personal Information has the meaning given to that term by the Privacy Act.

Planned Downtime has the meaning given in the Premium Service Level Agreement. 

Premium Service Level Agreement means the support and service level document issued by SurePact [as amended from time to time].

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, registered privacy codes, privacy policies and contractual terms 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.

Second Level Discussions means discussions referred to in clause 14.5.

Services means the SurePact software, Implementation Services and Support Services as the case may be.

Service Levels means the service levels set out in the Premium Service Level Agreement

Special Conditions means the special conditions specified in the Schedule (if any).

Support Policy means the support policy in force from time to time, as set out in the Premium Service Level Agreement.

Support Services means the support services set out in the Premium Service Level Agreement.

SurePact Material means any material provided by or to which access is given by SurePact to the Client for the purposes of this document including documents, equipment, reports, technical information, studies, plans, charts, drawings, calculations, tables, schedules and data stored by any means and includes the SurePact software and the Documentation.

SurePact means SurePact specified in the Schedule.

SurePact Representative means SurePact representative specified in the Schedule.

Term means the term contemplated by clause 7.

Third Party Material means any material that is owned by a third party including documents, equipment, reports, technical information, studies, plans, charts, drawings, calculations, tables, schedules and data stored by any means.

Upgrade has the meaning given to that term in clause 1.8.

Interpretation

15.2  In this document:

(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 document includes the agreement recorded by this document;

(c) no rule of construction applies in the interpretation of this document to the disadvantage of the party preparing the document on the basis that it put forward this document 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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