End User Licence Agreement

This End User Licence Agreement is made between you and Online Procurement Services Pty Ltd ABN 52 612 258 376 of 16 Cinderella Dr, Springwood QLD 4127, Australia.

Permission to use the Application is conditional upon you agreeing to the terms set out below.

The use of the Application is only offered to you on condition that you read and accept all the terms of this End User Licence Agreement (“this Agreement”) and wish to be a sub-licensee of the Application.

We reserve the right to amend the terms in this Agreement from time to time and we will notify you of any changes. You will be required to accept the amended terms.

Further, you will be required to renew your acceptance of the terms (or any amended terms) in this Agreement at monthly or other intervals.

Acceptance will bind you, and if you are an employer all of your employees to the terms of this Agreement. By clicking “I Accept” at the end of this Agreement, you will be deemed to have accepted the terms set out in this Agreement.

If you do not wish to accept the terms, you must not click “I Accept” and you may not use the Application.

Definitions and interpretation

Application means the Digital Forms software licensed to us by the Owner and used by you in accordance with this Agreement.

Claim means, in relation to a person, a claim, demand, remedy, suit, injury, damage, Loss, cost, liability, action, proceeding, right of action, claim for compensation or reimbursement or liability incurred by or to be made or recovered by or against the person, however arising and whether ascertained or unascertained, or immediate, future or contingent.

Confidential Information means all information provided by either of us to the other in connection with this Agreement where such information is identified as confidential at the time of its disclosure or ought reasonably to be considered confidential based on its content, nature or the manner of its disclosure, but excluding:-

(a) information that enters the public domain or is disclosed to either of us by a third party, other than through a breach of this Agreement, and

(b) information developed independently by you or us.

Consequential Loss means:-

(a) any damages or losses which are not direct and which do not flow naturally from the relevant breach of this Agreement or the relevant act or omission, as the case may be, even if those damages or losses may reasonably be supposed to have been in the contemplation of either of us as a probable result of the breach, act or omission at the time this Agreement was made; and

(b) any loss of profits, loss of reputation, loss of credit rating, loss or denial of opportunity, loss of goodwill, loss of access to markets, loss of data, loss of use, loss of production, financing costs, and special, incidental or punitive damages (whether they are direct or indirect).

Customer Data means data owned or supplied by you or by another person on your behalf and any other user’s data stored on the Owner’s systems through your or any other user’s usage of the Application.

Customer Materials means any trademarks, images, content or other materials developed by you or any other user prior to you accepting the terms of this Agreement or independently of this Agreement and includes any Customer Data.

Defect means a material failure of the Application.

Documentation means any and all proprietary documentation made available to you by us for use with the Application, including any documentation available online.

Force Majeure Event means any event beyond the control of the relevant party including any act or omission of a third party, fire, flood, earthquake, elements of nature or act of God or riot, civil disorder, rebellion or revolution.

Government Agency means any governmental, semi-governmental, administrative, fiscal, judicial or quasi-judicial body, department, commission, authority, tribunal, agency or entity.

Intellectual Property Rights means all intellectual property rights of whatever nature including all rights conferred under statute, common law or equity, including all copyrights, patent rights, trade mark rights (including any goodwill associated with those trade mark rights), design rights and trade secrets.

Loss means claims, liability, loss, damage, costs and expenses including but not limited to legal costs on a full indemnity basis.

Owner means Online Procurement Services Pty. Ltd. A.C.N. 612 258 376 of 16 Cinderella Dr, Springwood QLD 4127, Australia.

Personal Information has the same meaning as defined in s 6 of the Privacy Act 1988 (Cth).

Website means the website where this End User Licence Agreement is contained.

Unless the context requires otherwise:-

(a) the expressions “we”, “us” and “our” are a reference to Online Procurement Services Pty Ltd ABN 52 612 258 376;

(b) the expressions “you” and “your” are a reference to the user accepting the terms and conditions in this Agreement by clicking “I Accept” at the end of this Agreement;

(c) a reference to a person includes a corporation or any other legal entity;

(d) the singular includes the plural and vice versa;

(e) headings are for convenience and do not form part of this Agreement or otherwise affect the interpretation of this Agreement;

(f) the term “includes” (or any similar term) means “includes without limitation”; and

(g) a reference to any statute includes references to any subsequently amended, consolidated or re-enacted version of that statute and all delegated legislation or other statutory instruments made under it.

1. Background

The Owner has granted us a licence to use the Application and Documentation and to sub-licence the same.

2. Grant of Licence

We grant you a personal, non-exclusive, non-transferable sub-licence to use the Application and the Documentation, subject to and in accordance with the terms and conditions set out in this Agreement.

3. Obligations

(a) You agree to:-

(i) Comply with this agreement along with all applicable laws and regulations;

(ii) Comply with all lawful and reasonable directions that Online Procurement Services may issue in its discretion from time to time with respect to access of the application;

(iii) Use the application in good faith and for lawful purposes

4. Restrictions

(a) You must not:-

(i) use the Application in any way that could damage the reputation of the Owner or us or the goodwill or other rights associated with the Application;

(ii) permit any third party to use the Application other than as set out in this Agreement; or

(iii) reproduce any part of the Application for sale or incorporation in any product or service intended for sale or supply to third parties.

(b) Except as expressly permitted by this Agreement and except to the extent that applicable laws, including the Copyright Act 1968 (Cth), prevents the Owner and us restraining you from doing so, you must not:-

(i) reproduce, make error corrections to or otherwise modify or adapt the Application or create any derivative works based upon the Application;

(ii) de-compile, disassemble or otherwise reverse engineer the Application or permit any third party to do so.

(c) You must ensure that all usernames and passwords required to access the Application are kept secure and confidential. You must immediately notify us of any unauthorised use of your password or any other breach of security and we will reset your password. You must take all other action that the Owner or we reasonably deem necessary to maintain or enhance the security of the Owner’s computing systems and networks and your access to the Application.

(d) When accessing and using the Application, you must not:-

(i) attempt to undermine the security or integrity of the Owner’s computing systems or networks or, where the Application is hosted by a third party, that third party’s computing systems and networks;

(ii) use, or misuse, the Application in any way which may impair the functionality of the Application or the Website, or other systems used to deliver the Application or impair the ability of any other user to use the Application or the Website;

(iii) attempt to gain unauthorised access to any materials other than those to which you have been given express permission to access or to the computer system on which the Application is hosted;

(iv) transmit, or input into the Website, any files that may damage any other person’s computing devices or software, content that may be offensive, or material or Customer Data in violation of any law (including Customer Data or other material protected by copyright or trade secrets which you do not have the right to use);

(v) attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Application or to operate the Website;

(vi) remove or modify any program markings or any notice of proprietary rights, irrespective of whether such markings or notices are those of the Owner or a third party; and

(vii) make any part of the Application available in any manner to any third party for use in that third party’s business operations, or otherwise sub-licence, rent, assign, communicate to the public or otherwise deal (wholly or in part) with the Application.

5. Availability of Application

Your access to the Application is subject to the right of the Owner to, without notice, suspend all or part of any access to the Application immediately, including where:-

(a) there is a malfunction or breakdown of any of the Owner’s equipment or if the Owner is required to undertake the repair, maintenance or service of any part of the Application;

(b) it is reasonably required to reduce or prevent fraud or interference with the Application;

(c) the Owner is required to comply with an order, instruction or request of a Government Agency, or other such competent body; or

(d) there is a Force Majeure Event.

6. Downtime

You acknowledge and agree that access to the Application is reliant upon various factors outside the control of the Owner and us, including your internet service provider, telecommunications provider or equipment used to access the Application or the Website, the Owner’s hosting and web server and other factors which may impact upon the delivery of the Application to you via the internet. While the Owner and we will use all reasonable endeavours to ensure you have access to the Application, the Owner and we will not be liable to you or any other person for any Claim or to any other extent for Loss or damage caused by such factors.

7. Viability

You acknowledge that the Owner or we may suspend access to the Application if a Claim is made against either the Owner or us that:-

(a) alleges that the continued provision of the Application infringes the rights of any person; or

(b) exposes the Owner or us to liability or prosecution for an offence or liability to a statutory penalty.

8. Maintenance

You acknowledge that the Owner or we may suspend access to the Application for any scheduled or unscheduled maintenance of the Application.

9. Loss of Access

You agree that you will not have a Claim against the Owner or us in respect of loss of access to or the functionality of the Application.

10. Warranty and Liability

(a) You acknowledge that the Application cannot be guaranteed error free and further acknowledge that the existence of any such errors shall not constitute a breach of this Agreement.

(b) You agree that neither the Owner nor we will be liable for any Consequential Loss arising out of a breach of this Agreement or arising out of the Application being or becoming defective.

(c) Nothing in this Agreement excludes, restricts or modifies any condition, warranty, right or liability implied in this Agreement or protected by law to the extent that such exclusion, restriction or modification would render this Agreement or any provision of this Agreement void, illegal or unenforceable. Subject to that, any condition, warranty, right or liability which would otherwise be implied in this Agreement or protected by law is excluded.

(d) The application of the United Nations Convention on Contracts for the International Sale of Goods (the Vienna Convention) to this Agreement (by virtue of any law relevant to this Agreement) is excluded.

(e) Pursuant to s 64A of the Australian Consumer Law (under the Competition and Consumer Act 2010 (Cth)):-

(i) this sub-clause applies in respect of any of the goods or services supplied under this Agreement which are not of a kind ordinarily acquired for personal, domestic or household use or consumption, provided that this clause 10(e) will not apply if you establish that our reliance on it would not be fair and reasonable;

(ii) liability for breach of a guarantee conferred by the Australian Consumer Law (under the Competition and Consumer Act 2010 (Cth)), other than those conferred by ss 51–53 of that Law, is limited:-

(A) In the case of goods, to any one of the following as determined by us:-

(A1) the replacement of the goods or the supply of equivalent goods; or

(A2) the repair of the goods; or

(A3) the payment of the cost of replacing the goods or of acquiring equivalent goods; or

(A4) the payment of the cost of having the goods repaired.

(B) In the case of services, to any one of the following as determined by us:-

(B1) the supplying of the services again; or

(B2) the payment of the cost of having the services supplied again.

11. Intellectual Property Rights

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

(b) You acknowledge that all Intellectual Property Rights subsisting in the Application are either owned or licensed from third parties (as the case may be) by the Owner and that nothing in this Agreement has the effect of or should be construed as passing ownership of any Intellectual Property Rights of the Owner or any third parties to any person, including you.

(c) You must not directly or indirectly do anything that would or might invalidate or put in dispute the Owner’s title in the Application or any of the Owner’s registered or unregistered trade marks (Trade Marks).

(d) You must comply with our reasonable usage guidelines and directions with respect to the Application and the Trade Marks as notified to you from time to time

12. Continued Development

(a) You consent to the Owner soliciting comments, information, requests, data, ideas, enhancement requests, recommendations, description of processes, or other information concerning the Application from you and other users (Feedback).

(b) You agree that the Owner will own all Intellectual Property Rights in any Feedback and may use such Feedback for any purpose related to the Application or the carrying out of services generally in its business activities without further approval or acknowledgement, and you hereby assign to the Owner any Intellectual Property Rights in any such Feedback or agree to execute any documents necessary to assign to the Owner any Intellectual Property Rights in any such Feedback.

13. Customer Materials

(a) We acknowledge that all Intellectual Property Rights subsisting in the Customer Materials are either owned or licensed from third parties (as the case may be) by you and that nothing in this Agreement has the effect of or should be construed as passing ownership of any Intellectual Property Rights in the Customer Material to us.

(b) You hereby grant to us a royalty free, non­exclusive, non-transferable licence to use, operate, modify, support and maintain the Customer Materials in order to support the Application and agree that we may grant the Owner a sub-licence upon those terms.

14. Customer Data

(a) Through the usage of the Application, you and other users will provide and have stored on the Owner’s servers, Customer Data.

(b) You acknowledge that the Owner will have no liability whatsoever for any loss of Customer Data that may occur.

(c) You must not knowingly do any act or thing in relation to data which would infringe any party’s copyright or intellectual property rights and you will be responsible for obtaining consent, approval or license from the holders of any intellectual property rights required to enable you to deal with any relevant data or to do any act or thing in relation to those intellectual property rights.

(d) You grant and the Owner reserves the right to use, test, manipulate or put to any other application the Customer Data for the purpose of improving the Application.

(e) You acknowledge that through the use of the Application you may exchange or otherwise receive or disclose Customer Data to and from other users. You acknowledge and agree that the Owner and we have no control over any or all such information and do not give any warranty or guarantee as to its accuracy or otherwise or the appropriateness of the data and all such data is used completely at your own risk.

15. Confidentiality

(a) Neither you nor us may, without the prior written consent of the other, use or disclose the other’s Confidential Information unless expressly permitted by this Agreement or required to do so by law or any regulatory authority.

(b) Either you or us may:-

(i) use the Confidential Information of the other solely for the purposes of complying with your or our respective obligations and exercising your or our respective rights under this Agreement; and

(ii) disclose the Confidential Information to your or our respective personnel or advisers to the extent necessary for them to know the information for purposes related to this Agreement, but only if reasonable steps are taken to ensure that the confidentiality of the information is retained.

(c) You and we must implement and maintain effective security measures to prevent unauthorised use and disclosure of the other’s Confidential Information whilst it is in the receiving party’s possession or control.

(d) You and we must return, or at the other’s option destroy, all Confidential Information of the disclosing party in the receiving party’s possession or control, on the earlier of our request or on the expiry or earlier termination of this Agreement for any reason.

16. Privacy

We will comply with the terms of our privacy policy that can be seen at https://www.onlineprocurement.com.au/privacy-policy/

17. Indemnity

You must indemnify and keep indemnified us, our directors, employees, contractors and agents from and against all Claims:-

(a) In the event that your act or omission causes or contributes to us breaching our obligations to the Owner; or

(b) As a result of your use of the Application, including but not limited to you breaching the provisions of this Agreement.

18. Termination

In the event of you breaching any of the terms of this Agreement, we may, in our absolute discretion, suspend or terminate your access to the Application.

19. General

(a) You must not assign, sub-licence or otherwise deal in any other way with any of the rights granted to you under this Agreement.

(b) Nothing contained in this Agreement creates any relationship of partnership or agency between you and us.

(c) If a provision of this Agreement is invalid or unenforceable it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.

(d) The terms of this Agreement survives its expiry or termination to the extent permitted by law.

(e) You must at your expense and we must at our expense do everything reasonably necessary to give full effect to this Agreement and the events contemplated by it.

(f) This Agreement is the entire agreement between you and us about its subject matter and supersedes all other representations, arrangements or agreements. Other than as expressly set out in this Agreement, neither you nor us have relied on any representation made by or on behalf of the other.

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

(h) This Agreement will be governed by and construed in accordance with the laws of the State of Queensland and the Commonwealth of Australia and you and we hereby agree to submit all disputes arising between you and us to the Brisbane Registry of any such Queensland or Commonwealth court as is competent to hear the matter.

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