Enterprise Terms
These Enterprise terms apply if you are a Master Account Holder OR if you are an inndox Enterprise Customer.
1. Acceptance
(a) These Enterprise Terms apply to and are incorporated into your acquisition of the Application Service pursuant to the Enterprise Subscription Form and are incorporated into the Agreement of the parties.
(b) You will be taken to have accepted, and will be legally bound by, these Enterprise Terms if you:
(i) reply electronically to us confirming that you agree to the proposal for Application Services provided to you by us;
(ii) sign the Enterprise Subscription Form and return it to us electronically or by any other means; and/or
(iii) accept these Enterprise Terms where the option is made available to you.
(c) We may amend these Enterprise Terms from time to time, by providing reasonable written notice to you.
(d) You must not enter into an agreement with us for the supply of the Application Service, and we will be under no obligation to supply the Application Services, if you do not agree to and accept these Enterprise Terms or if you do not have authority to act on behalf of any person or body corporate for whom you are acquiring the Application Services.
2. Subscription Term
(a) This Agreement commences on the Commencement Date and continues for the Initial Term unless terminated in accordance with clause 2(b) or clause 17(a).
(b) At the end of the Initial Term, and at the end of any subsequent Renewal Period, this Agreement will automatically renew for a Renewal Period unless the Customer notifies Inndox at least 30 days before the end of the Initial Term or Renewal Period (as the case may be) that the Customer does not wish to renew this Agreement.
3. Use of the Application Service
(a) The Customer and its Users may use the Application Service and the Inndox Materials on the terms set out in this Agreement for the Subscription Period.
(b) The Customer agrees that all Users must agree to the EULA prior to accessing the Application Service and the Inndox Materials. Users must comply with the terms of this Agreement and the EULA at all times.
(c) Only the Customer and its authorised Users may use the Service and the Inndox Materials.
(d) The Customer and its Users must not:
(i) resell the Application Service or any of the Inndox Materials;
(ii) use the Application Service for anyone else's benefit (including using it to provide outsourcing services, application services or software as a service);
(iii) sub-licence the use of the Application Service;
(iv) copy any of the Inndox Materials (except incidentally in the course of use the Application Service);
(v) use the Application Services, or any information gathered through the use of the Application Services, in a way which is in breach of any statute, regulation, law or legal right of any person within Australia; or
(vi) reverse engineer any of the Application Services or any of the Inndox Materials to determine any design structure, concepts or methodology behind any of them or to incorporate any of them in any other software or product or for any other purpose.
(e) The Customer is responsible for ensuring that its Users and Representatives comply at all times with the terms of this Agreement and will be liable to Inndox for the consequences of each failure to comply with this Agreement by any of the Customer's Users or Representatives.
3.2 Open Source Software
(a) Access to the Open Source Software may be provided subject to the terms imposed by the licensor of that Open Source Software. Where applicable, the Customer agrees to be bound by those terms in addition to the terms set out in this Agreement.
(b) No fee is payable in respect of the use of any Open Source Software.
(c) The Customer acknowledges and agrees that any Open Source Software is made available "as is", without any warranty or guarantee from Inndox.
4. Provision of Application Services
4.1 Inndox obligations
(a) From the Commencement Date and for the duration of the Subscription Period, Inndox will provide the Application Services in accordance with this Agreement.
(b) Inndox will:
(i) perform its obligations under this Agreement with due care and skill and in a timely and professional manner;
(ii) comply with all laws and maintain any licences or authorisations required for the purposes of providing the Application Service;
(iii) use reasonable endeavours to ensure no viruses or similar programming effects are coded or introduced as a direct result of the provision of the Application Service; and
(iv) to the extent possible, control, co-ordinate, supervise, direct and complete all activities necessary to provide the Application Service.
(c) Inndox may, but is not obliged to, monitor the use of the Application Service. Inndox may remove or block any User or Property Data from the Application Service if it believes, in its absolute discretion, that such User or Property Data breaches this Agreement, or in the case of a User, has breached the EULA.
4.2 Customer obligations
The Customer must:
(a) provide, and ensure its Users provide, all necessary information, documentation and assistance, in a timely manner, required by Inndox to provide the Application Service;
(b) maintain any licences or authorisations required for the purposes of receiving the Application Service; and
(c) co-operate, and ensure its Users and Representatives co-operate, with Inndox as Inndox reasonably requires.
4.3 Customer and User Facilities
The Customer:
(a) must procure, and keep in good working order, all Customer's Facilities in a way that meets the requirements in the Documentation;
(b) is solely responsible for resolving all problems, delays or delivery failures and all loss and damage arising from or relation to the Customer's Facilities; and
(c) acknowledges that Inndox is not responsible for any problems, delays or delivery failures and all loss and damage arising from or in relation to the User’s Facilities.
4.4 Updates
(a) Inndox reserves the right, but is not required, to provide Updates.
(b) If Inndox exercises its right under clause 4.4(a) and the Update is a Major Update, Inndox will provide the Customer with reasonable notice before providing the Major Update (Major Update Notice). The Major Update Notice must identify the nature of the Major Update and its anticipated effect on the Customer's ability to access and use the Technology. For the avoidance of doubt:
(i) a Major Update Notice shall be deemed as satisfied upon providing notice of such by e-mail to the Customer’s Representative; and
(ii) Inndox is not required to provide the Customer with notice of an Update that is not a Major Update.
(c) Inndox will not exercise its rights or fulfil its obligations under this clause 4.4 in a manner which would cause the Customer to lose access to Property Data, interrupt the Customer’s business or materially decrease the utility of the Application Service to the Customer or its Users.
(d) Notwithstanding clause 4.4(a), Inndox shall be obliged to provide an Update to the Customer at no additional charge:
(i) to the extent that such Update is required to overcome an Error;
(ii) to ensure that the Application Service complies with changes in applicable Law; and
(iii) in connection with any enhancement to the Application Service which has been made available for the benefit of Inndox’s other clients generally, and which is designed to provide an improvement to the Application Service. For the avoidance of doubt, the Updates referred to in this clause 4.4 do not include new features or modules developed by Inndox, which may be subject to additional terms and charges.
(e) Inndox does not guarantee that any change, addition, deletion, error correction or patch will be compatible with any application, other software or interface that connects to or interfaces with the Application Services.
5. Service Levels and assistance requests
(a) Inndox will provide requested assistance that aligns with the Support Services and Service Levels set out in the Service Level Schedule at: https://www.inndox.com/service-level-schedule provided that the Customer provides Inndox with notice in accordance with this clause 5 and assists Inndox as necessary.
(b) All Customer requests for assistance must be made to Inndox by the Customer's Authorised Support Contact, including any person that the Customer has notified to Inndox as a replacement Authorised Support Contact.
(c) Inndox may, in its sole discretion, accept or reject any assistance requests from persons other than the Customer's Authorised Support Contact, including requests from Users.
(d) Requests for assistance should be made by:
(i) contacting the Contract Representative set out in the Enterprise Subscription Form; or
(ii) emailing us at info@inndox.com.
(e) The Customer agrees to assist, and ensure its Users assist, Inndox with investigating and ascertaining the cause of any Error and provide Inndox with all necessary information relevant to the Error (including but not limited to any act or omission by the Customer or User which may have contributed to the Error).
(f) Inndox is not obliged to provide any consultancy, installation, configuration, integration or development services (collectively, Professional Services) or training to the Customer, or any Support Services, Professional Services or training to any Users.
(g) If the Customer requests any Professional Services, and Inndox agrees to provide them, the parties will record the Professional Services to be provided and the fees payable for them in writing, signed on behalf of each party. The terms of this Agreement will apply to the provision of those Professional Services, unless the parties have entered into a formal Service Agreement signed by both parties that indicates this Agreement will not apply to those Professional Services.
(h) Where Service Levels specifically apply under the terms of this Agreement, Inndox will use reasonable endeavours to:
(i) achieve or exceed the Service Levels; and
(ii) comply with the requirements outlined in the Service Level Schedule.
(i) The Service Levels are guidelines only and Inndox does not undertake that it will meet them, but Inndox will use reasonable endeavours to do so.
(j) For the avoidance of doubt Support Services and Service Levels apply only to the Customer and not apply to the Users. All User support is to be managed and provided by the Customer directly.
6. Inndox Policies
(a) The Customer must comply with all Inndox Policies.
(b) Inndox must provide or make available to the Customer a copy of any relevant Inndox Policy within a reasonable time of such Inndox Policy being made by Inndox or being made available to Inndox by a third party.
7. Subcontracting
(a) Inndox may subcontract any of its obligations under this Agreement without the Customer's prior consent.
(b) Inndox remains fully responsible for acts or omissions of its subcontractors in connection with this Agreement as if they were the acts and omissions of Inndox.
8. Fees and payment terms
8.1 Fees
(a) In consideration of supply of the Application Service, the Customer will pay the Fees in accordance with the Payment Terms or otherwise within 30 days after the date of Inndox's invoice for the same.
(b) The Customer agrees and acknowledges that Inndox may review its Fees at any time and may at its absolute discretion, amend the Fees with at least 30 days' notice to the Customer.
(c) Inndox is not obliged to provide any service except the Application Service and the Inndox Materials. Inndox reserves the right to charge the Customer, and the Customer will pay Inndox at Inndox's standard rates from time to time for any additional service supplied by Inndox.
(d) In the event that the Customer does not comply with this clause 8.1, then, in addition to any other rights or remedies, Inndox is entitled in its sole discretion to:
(i) charge the Customer interest on amounts not paid at a rate equivalent to 2% per annum plus the cash rate set by the Reserve Bank of Australia, calculated daily from the due date to the day of payment of the debt;
(ii) suspend all or any part of its obligations under this Agreement without notice to the Customer, including access to the Application Services; and/or
(iii) terminate this Agreement in accordance with clause 18.3.
(e) If Inndox suspends the account in accordance with clause 8.1(d)(ii) and the Customer then makes full payment of the amount charged under 8.1(d)(i) before Inndox has exercised its right to terminate the Agreement under clause 18.3, Inndox will withdraw the suspension and reinstate provision of the Application Services.
(f) The fees and charges payable under this Agreement are not refundable except in accordance with any applicable Australian Consumer Laws.
8.2 Disputed Invoices
(a) If the Customer wishes to dispute any part of an invoice, the Customer must notify Inndox within 5 days after receipt of the invoice, explaining the reason for the dispute and the amount disputed (Disputed Invoice).
(b) Where only part of the invoice is disputed, the Customer must pay the undisputed amount of the invoice on or before the due date for payment.
(c) If Inndox is not notified that an invoice is disputed within the timeframe in clause 8.2(a), the invoice will be deemed undisputed and will be due and payable in accordance with the terms of this Agreement.
(d) The parties will work together to resolve any Disputed Invoice expeditiously.
9. Taxes
9.1 GST
If GST is or becomes payable on any party making a supply under this Agreement, the parties agree that:
(a) consideration for the supply is to be considered exclusive of GST; and
(b) Inndox may recover from the recipient an additional amount equal to the consideration for the supply multiplied by the prevailing GST rate.
9.2 Indemnity
The Customer agrees to indemnify Inndox for all Losses and Claims arising as a result of any Tax for which the Customer is responsible pursuant to clause 9.1.
10. Intellectual Property
10.1 Inndox Material
(a) Inndox owns all right, title and interest in and to Inndox Material.
(b) Inndox hereby grants to the Customer a non-exclusive, non-transferable, non-sublicensable (except as contemplated in this clause 10.1(b)), non-assignable, non-perpetual, revocable and worldwide licence to use Inndox Material by and for itself and strictly for the Approved Purpose.
(c) The Customer must not, and must ensure that its Users and Representatives do not, use Inndox Material for any purpose other than the Approved Purpose.
10.2 Customer Material
(a) The Customer remains the owner of the Customer Material.
(b) The Customer grants to Inndox a royalty-free, worldwide, non-exclusive licence to use, modify and adapt the Customer Material for the Subscription Period and strictly for the purpose of performing its obligations under this Agreement.
(c) The Customer must ensure that the Customer Material does not contain anything which:
(i) is offensive, abusive or menacing;
(ii) is pornographic, obscene or indecent;
(iii) is unlawful;
(iv) is an invasion of privacy
(v) infringes any Third Party IP; or
(vi) incites, or is capable of inciting, violence, racial hatred, cruelty or which encourages any unlawful or illegal act or omission.
10.3 Developed Material
(a) Inndox will own, and the Customer hereby assigns to Inndox on creation, all existing and future Intellectual Property Rights in and to any Developed Material. The Customer must do all things necessary to assign or transfer ownership of Developed Material to Inndox.
(b) Inndox grants to the Customer a royalty free, revocable, worldwide, non-exclusive licence to use, the Developed Material for the purposes of this Agreement.
(c) In using the right granted to it by Inndox in clause 10.3(b), the Customer concedes that it will not be in any way, in breach of its obligations under this Agreement.
10.4 Intellectual Property Rights warranties
The Customer warrants to Inndox that:
(a) to the extent that Customer Material or Property Data contains Personal Information, it has obtained the necessary consents required to transfer or permit access to this personal information; and
(b) the Customer Material and Property Data does not infringe, and the Customer or Inndox's use of the Customer Material as contemplated under this Agreement does not infringe, any Third Party IP.
10.5 Infringement Claim
(a) Subject to any orders made under the law and subject to clause 10.5(b), in the event of an Infringement Claim, the party who is being threatened with or has received an Infringement Claim (Indemnified Party) in relation to the other party's (Indemnifying Party) IP, must:
(i) promptly notify the Indemnifying Party of the Infringement Claim in writing;
(ii) use its best endeavours to mitigate any Loss;
(iii) update and consult with the Indemnifying Party about the progress of the Infringement Claim;
(iv) not make any admissions or take any action in relation to the Infringement Claim without the Indemnifying Party's prior written consent;
(v) permit the Indemnifying Party control over any and all investigations, negotiations, settlement and dispute resolution proceedings relating to the Infringement Claim; and
(vi) cooperate with, assist and act at all times in accordance with the reasonable instructions of the Indemnifying Party, in relation to the Infringement Claim and any consequent investigations, negotiations, settlement and dispute resolution proceedings.
(b) In the event that the Indemnified Party owns the IP which is the subject of the Infringement Claim, then clause 10.5(a) does not apply.
10.6 Indemnity
Each party must indemnify each other party against Losses sustained or incurred by the other party:
(a) as a result of an Infringement Claim; or
(b) directly out of or in connection with the Indemnifying Party's breach of any warranties given by it under clause 10.4,
(c) except to the extent that the Indemnified Party has failed to mitigate its Loss, or the Loss is directly attributable to the negligence or wrongful act or omission of the Indemnified Party or its Representatives.
11. Confidentiality and privacy
11.1 Confidentiality obligations
The parties acknowledge and agree that each of them must:
(a) not disclose the other party’s Confidential Information to any person except as permitted under clause 11.2;
(b) only use or copy the other party’s Confidential Information for the purposes of this Agreement; and
(c) take all steps reasonably necessary to secure the other party’s Confidential Information against theft, loss or unauthorised disclosure.
11.2 Permitted disclosures
The Customer or Inndox (Disclosing Party) must not disclose the Confidential Information of the other party except:
(a) to a Representative of the Disclosing Party who needs to know the Confidential Information for the purposes of this Agreement;
(b) with the other party's prior written consent, which must not be unreasonably withheld;
(c) as required to be disclosed by any law or the listing rules of any stock exchange where that party's securities are listed or quoted; or
(d) as expressly permitted by this Agreement.
11.3 Return and destruction of Confidential Information
(a) Subject to clause 11.3(b), at the request of the party to whom the Confidential Information belongs, each party must, at the other party's option, return, erase or destroy any Confidential Information belonging to the other party in all documents and other materials in any medium in the possession or under the power or control of the party or any of its Representatives.
(b) If a party must retain the other party’s Confidential Information for the purpose of:
(i) complying with any law;
(ii) litigation;
(iii) internal quality assurance and record-keeping; or
(iv) performing its obligations or exercising its rights under this Agreement,
it may retain and use it solely for this purpose but must deal with the Confidential Information in accordance with clause 11.3 promptly after it is no longer required for this purpose.
11.4 Privacy
(a) Inndox handles information it collects in accordance with its privacy policy, available on the Inndox website.
(b) Each party must:
(i) comply with all applicable Privacy Laws;
(ii) only collect, store, use, disclose or otherwise deal with Personal Information in accordance with all Privacy Laws;
(iii) only use or disclose Personal Information to the extent necessary to provide or use the Application Service; and
(iv) not do any act, engage in any practice, or omit to do any act or engage in any practice that:
(A) would result in a breach of a Privacy Law if the Privacy Law applies to those things done, engaged in or omitted to be done by the party; or
(B) would cause the other party to breach or be taken to breach a Privacy Law.
(c) The Customer must, and must ensure that its Users and Representatives:
(i) take all reasonable steps to ensure that Personal Information held or accessed by it in connection with this Agreement is protected against misuse, interference and loss, and from unauthorised access, modification and disclosure;
(ii) immediately notify Inndox of any Data Breach and provide information, assistance and other cooperation as requested by Inndox in respect of the Data Breach;
(iii) co-operate with any reasonable requests or directions of Inndox relating to the security, use, disclosure, and transfer of Personal Information handled under this Agreement, including:
(A) Inndox’s legal obligations relating to the Personal Information,
(B) complaints relating to the Personal Information; and
(C) the rights of individuals to access and correct their Personal Information.
(d) Inndox may disclose Personal Information to its employees and Representatives to the extent they have a need to know for the purposes of providing the Application Service, or as otherwise permitted under Inndox's published Privacy Policy.
11.5 Indemnity
Each party agrees to indemnify and keep the other party indemnified against all Losses directly incurred by the other party as a result of or in connection with any breach by it of its obligations under this clause 11.
12. Property Data
(a) Inndox is the owner of all Intellectual Property Rights in and to the Property Data.
(b) Inndox grants the Customer a non-exclusive, royalty-free, irrevocable licence to access, copy, modify and share the Property Data to the extent necessary for the purposes of using the Application Services.
(c) The parties agree and acknowledge that the Property Data is provided as is and as available, and is derived from a range of third party sources, including other Users and publicly available information. Inndox will not be held responsible in any way for the content of any Property Data.
(d) Inndox will store all Property Data in perpetuity, including any inactive Property Data.
13. Inndox Materials
(a) Inndox reserves the right to remove any of the Inndox Materials from the Application Service.
(b) Where reasonably practical, Inndox will endeavour to notify the Customer and its Users in writing prior to the effective date of the removal of the Inndox Material.
14. Representations and Warranties
14.1 Representations and warranties as to capacity
Each party represents and warrants to all other parties that as at the Commencement Date and for the Subscription Period each of the following statements is true in respect of that party and will be true for the Subscription Period:
(a) (if a corporation) it is validly incorporated;
(b) (if a corporation) it has taken all corporate action necessary to authorise the execution of this Agreement to render this Agreement legally enforceable in accordance with its terms;
(c) (if a corporation) that any representative executing this Agreement has the relevant authority from the company to execute agreements of this nature and bind the Customer to the terms of the Agreement;
(d) all authorisations and consents, including by any government agency, that are required or will be required to execute and perform the obligations under this Agreement have been lawfully obtained;
(e) it has full legal capacity, power and authorisation to enter into this Agreement; and
(f) the execution and performance by it of this Agreement does not breach its Constitution, any agreement binding on it or any applicable laws.
14.2 General warranties
Additionally, each party represents and warrants to the other that as at the Commencement Date and for the Subscription Period each of the following statements is true in respect of that party and will be true for the Subscription Period:
(a) it has disclosed any and all information concerning it which could reasonably be regarded as affecting the decision of the other party to enter into this Agreement; and
(b) no statement made by it leading up to the Commencement Date has been misleading or deceptive in any material respect.
14.3 Application Service warranties
(a) Subject to clause 14.3(b), Inndox represents and warrants to the Customer that, as at the Commencement Date and at all times during the Subscription Period, to the best of its knowledge:
(i) to an extent reasonably expected of the type and complexity of the Application Service, the Application Service will substantially be in conformity with any specifications or representations made by Inndox in writing and will be materially free from defects and omissions in material, design or workmanship; and
(ii) it is the owner of the Intellectual Property Rights in the Application Service and Inndox Materials, or has the right to make the Application Service and Inndox Materials available to the Customer.
(b) Inndox makes no further warranty. Without limitation, it does not warrant that the Application Service will be uninterrupted or available at all times.
(c) The Customer acknowledges and agrees that:
(i) unless otherwise agreed between the parties, the Application Service and the Inndox Materials are a standard service and standard materials provided to Inndox's customers generally;
(ii) the Application Service and Inndox Materials have not been developed to meet the Customer's specific requirements; and
(iii) it is the Customer's responsibility to check that the features, facilities and functions of the Application Service meets their requirements.
(d) The representations made and warranties given by Inndox under clause 14.3(a) do not operate where the substantial non-performance of this Agreement arises in respect from the nature or operation of the equipment on which the Application Service is used.
15. Liability
15.1 Loss
Without limiting any other rights a party may have, including under any other provision of this Agreement, an Indemnifying Party is liable for and indemnifies the Indemnified Party against any Loss or Claim incurred or suffered by the other party as a direct result of:
(a) any breach of this Agreement by the Indemnifying Party or its Representatives;
(b) any unlawful, fraudulent or negligent act or omission of the Indemnifying Party or its Representatives;
(c) any death or personal injury caused or contributed to by any act or omission of the Indemnifying Party or its Representatives; or
(d) any damage to or loss or destruction of real or personal property caused or contributed to by any act or omission of the Indemnifying Party or its Representatives,
except to the extent the Loss or Claim is directly attributable to the negligence or wrongful act or omission of the other party or its Representatives.
15.2 Limitation on liability and exclusion of Consequential Loss
(a) Subject to clause 15.2(c), to the fullest extent permitted by law, the total aggregate liability of a party to the other party under or in connection with this Agreement in respect of all Losses and Claims is limited to the Liability Cap Amount.
(b) Subject to clause 15.2(c):
(i) neither party is liable to the other for any kind of Consequential Loss arising out of or in connection with this Agreement; and
(ii) Inndox is not liable for any loss to the extent that the loss is directly or indirectly attributable to the Customer’s breach of any part of this Agreement or the Customer’s use of any aspect of the Application Service for any purpose other than the purposes expressly set out in this Agreement.
(c) The limitations and exclusions in this clause 15.2 do not apply to a party's liability for Loss suffered or incurred by the other party in respect of:
(i) any unlawful, fraudulent or negligent act or omission;
(ii) death or personal injury;
(iii) damage to or loss or destruction of real or personal property;
(iv) any Infringement Claim; or
(v) breach by a party of clause 11 or clause 12.
(d) Inndox is not liable for any loss or damage incurred by the Customer or its Users to the extent that any failure of the Application Service or the Inndox Materials to comply with any warranty, or to the extent that any Error or other defect, bug or deficiency in the Application Service or Inndox Materials, or Inndox's failure to correct or delay in correcting it, results from any of the following:
(i) the Customer or any User not having complied with their obligations under this Agreement;
(ii) the use of the Application Service or Inndox Materials contrary to Inndox’s instructions or the Documentation;
(iii) any error or incompleteness in the Property Data, or the Property Data being out of date;
(iv) any delay or failure by the Customer or User to notify Inndox of any error or incompleteness of the Property Data;
(v) any delay or failure by the Customer or User in providing any data or information to Inndox;
(vi) any other act or omission of the Customer, Users or any third party;
(vii) the Customer or any User having failed to comply with any technical prerequisites specified from time to time by the licensor of any software or the manufacturer of any equipment;
(viii) the Customer or User's failure to implement, or delay in implementing, any firewall, anti-virus software, security patch, upgrade, update, new release, revision, version, workaround or modification which would have remedied or mitigated the effects of any Malicious Code, error or deficiency; or the failure of any firewall; or
(ix) any problem with, or any delay or interruption in Inndox’s System and the Application Service (or either of them), or for any failure or delay in delivery, or for any loss or damage resulting from the transfer of data (or the failure to transfer data) over any communications network or facility, including the Customer or User's network connections or telecommunications links and the internet, and the Customer acknowledges that Inndox’s System and the Application Service may be subject to limitations, delays and other problems inherent in the use of such communications networks and facilities;
(x) any failure of, or fault, error or bug in, the Customer or User’s equipment, software, network or telecommunications system or any Third Party IP; and
(xi) any failure of the Application Service to operate with equipment or operating system or any data feed not specified in the Documentation or for any degradation in performance or reduction in functionality caused by the use of the Application Service with any operating system, equipment or data feed not specified in the Documentation.
15.3 Implied terms
(a) Subject to clause 15.3(b), any condition or warranty which would otherwise be implied in this Agreement is excluded.
(b) Pursuant to s 64A of the Australian Consumer Law, this clause applies in respect of any services that are not of a kind ordinarily acquired for personal, domestic or household use or consumption. Liability for breach of a guarantee conferred by the Australian Consumer Law (other than those conferred by ss 51 to 53 of the Australian Consumer Law) is limited to:
(i) the cost of re-supplying the Application Service; or
(ii) making full payment for the cost of re-supplying the Application Service.
15.4 Australian Consumer Law
Nothing in this Agreement is intended to limit or exclude the Customer’s consumer guarantees under the Australian Consumer Law.
16. Force Majeure Event
16.1 Notice
A party affected by a Force Majeure Event must as soon as practicable provide notice to all other parties specifying the date and nature of the Force Majeure Event, as well as the anticipated duration of the suspension of its obligations under this Agreement.
16.2 Consequences of a Force Majeure Event
If a party is directly and adversely affected by a Force Majeure Event, a party is excused from performing its obligations under this Agreement (other than its obligation to pay money and provide requisite notice) for the period of delay arising directly from that Force Majeure Event.
16.3 Mitigation and resumption of obligations
A party affected by a Force Majeure Event must:
(a) use all reasonable efforts to overcome the effects of the Force Majeure Event; and
(b) resume performance of its obligations under this Agreement as soon as possible after the Force Majeure Event has abated to the extent necessary to permit a resumption of performance.
16.4 Party not liable for damages
Without limiting the generality of clause 16.2, it is acknowledged and agreed by the parties that, where a party is prevented from complying with its obligations under this Agreement as a result of a Force Majeure Event, that party is not liable for Loss of any kind, including for Consequential Loss, arising out of or resulting directly from that failure to comply.
16.5 Termination following a Force Majeure Event
If a Force Majeure Event prevents performance of one or more of the material obligations under this Agreement and the delay caused by the Force Majeure Event continues for a period of 30 days, any party may by written notice to all other parties terminate this Agreement without liability for breach of contract.
17. Disputes
(a) The parties must use reasonable endeavours to resolve any dispute through negotiation.
(b) If, within 14 days the dispute cannot be resolved following negotiation between the parties, either party may refer the dispute for mediation.
(c) The parties agree to negotiate in good faith to agree on the appointment of a mediator, or failing agreement, as appointed by the President of the Queensland Law Society.
(d) The costs of the mediator are to be borne equally between the parties.
(e) If a party fails to adhere to the terms of this clause 17 and proceedings are subsequently issued by the defaulting party, this clause can be used as a bar to any proceedings so issued.
(f) If the dispute cannot be resolved through mediation, either party may commence proceedings.
18. Termination
18.1 Termination for cause
In addition to any other express right of termination granted to a party under this Agreement, either party may terminate this Agreement by giving notice with immediate effect if the other party:
(a) commits a breach of any of its material obligations under this Agreement, and if the breach is capable of remedy, does not remedy that breach within thirty days after receipt of notice of the breach or any further time allowed by the party;
(b) breaches any warranty or representation under this Agreement; or
(c) suffers an Insolvency Event.
18.2 Consequences of termination by the Customer for Inndox's default
(a) If the Customer terminates this Agreement under clause 18.1 then the Customer:
(i) will not be required to make any payment in respect of the Application Service not yet supplied on the effective date of termination; and
(ii) may recover from Inndox all money paid for the Application Service, or part of the Application Service, not yet supplied.
(b) After exercising its rights under this clause 18.2, the Customer must pay any net amount outstanding to Inndox.
18.3 Termination by Inndox for the Customer’s default
Inndox may immediately terminate this Agreement by notice to the Customer, if:
(a) the Customer fails to make payment of any amounts due under this Agreement; and
(b) Inndox issues a notice to the Customer that it intends to terminate this Agreement pursuant to this clause 18.3 if payment of the outstanding amount, plus interest, is not received within fourteen days of the Customer receiving the notice; and
(c) the Customer fails to make payment of the outstanding amount plus interest within fourteen days of receiving a notice in accordance with this clause 18.3.
18.4 Effect of termination
(a) If this Agreement is terminated by Inndox under clause 18.1 or clause 18.3, all money owing by the Customer to Inndox under this Agreement will immediately become due and payable by the Customer to Inndox.
(b) On termination or expiry of this Agreement, the Users will no longer be able to use and access the Application Services under this Agreement.
18.5 Preservation of rights
On termination of this Agreement under this clause 18, each party retains its rights against the other parties in respect of any past breach, in addition to any other rights, powers or remedies provided by law.
18.6 Non-solicitation
The Customer will not solicit or entice away, any person or organization that was an actual or prospective, client, employee, contractor, representative, agent of, or developer to, Inndox, during the Term of this Agreement and for a period of 12 months following the termination or expiration of the Agreement.
19. General
19.1 Notices
(a) A notice or other communication connected with this Agreement (Notice) has no legal effect unless it is in writing and signed by the sender or a person authorised by the sender.
(b) In addition to any other method of service provided by law, the Notice may be sent by email to the email address of the addressee.
19.2 Entire understanding
This Agreement:
(a) is the entire agreement and understanding between the parties on everything connected with the subject matter of this Agreement; and
(b) supersedes any prior agreement or understanding on anything connected with that subject matter.
19.3 Waiver
Waiver of any power or right under this Agreement:
(a) must be in writing, signed by the party entitled to the benefit of that power or right; and
(b) is effective only to the extent set out in the written waiver.
19.4 Assignment
(a) Inndox may assign this Agreement by reasonable notice to the Customer.
(b) The Customer must not assign or deal with this Agreement, except with the prior written consent of Inndox, which consent must not be unreasonably withheld.
(c) Inndox does not unreasonably withhold its consent if it requires:
(i) the Customer to pay all expenses (including legal costs) incurred by Inndox in investigating the proposed assignee or in connection with the proposed assignment; or
(ii) the proposed assignee to agree in writing with Inndox to comply with this Agreement as if it were an original party to this Agreement.
19.5 Costs
Each party must bear its own legal, accounting and other costs associated with the preparation and execution of this Agreement.
19.6 Relationship of the parties
This Agreement does not create a relationship or agency, contractor, partnership, joint venture or employment between the parties. No party may act or hold itself out as having the authority to act as the agent or representative of another party or in any way bind or commit another party to any obligation.
19.7 Non-exclusivity
The Customer acknowledges that it is not, nor will it be, the exclusive customer to Inndox of the kinds of services contemplated by this Agreement and that Inndox may, at any time and from time to time, perform, provide or engage a third party to perform or provide part of its obligations under this Agreement, without the consent of or notice to the Customer.
19.8 Counterparts
This Agreement may be executed in any number of counterparts and all counterparts constitute an original document and when taken together will constitute one document.
19.9 Variation
An amendment or variation to this Agreement, including but not limited to the Enterprise Subscription Form, is not effective unless it is in writing and signed by all the parties. We may change this Agreement at any time, and if we make changes then we will take reasonable steps to let our Customers know about the changes.
19.10 Severability
Part or all of any provision of this Agreement that is illegal or unenforceable will be severed from this Agreement and will not affect the continued operation of the remaining provisions of this Agreement.
19.11 Cumulative rights
The rights, powers and remedies provided in this Agreement are in addition to those provided by law independently of this Agreement and each right, power and remedy provided in this Agreement (including any right of indemnity) is additional to and not exclusive of every other right, power or remedy provided in this Agreement
19.12 Survival
Termination or expiration in whole or in part of this Agreement does not affect those provisions and those obligations of a party which by their very nature survive termination, including clauses 3(e), 10 (Intellectual Property), 11 (Confidentiality and privacy), 12 (Property Data), 15 (Liability), 17 (Disputes).
19.13 Governing law and Jurisdiction
(a) This Agreement is governed by and is to be construed in accordance with the laws applicable in the State of Queensland, Australia.
(b) The parties submit all matters arising out of or in connection with this Agreement to the State of Queensland, Australia.
20. Interpretation and precedence
20.1 Definitions
In this Agreement:
Agreement means the agreement between the parties made up of the Enterprise Subscription Form, these Enterprise Terms, and any schedule or annexure to it;
Application Service means the software developed and provided by Inndox used to connect enterprise systems and automate business processes, and other features available on the platform provided by Inndox from time to time pursuant to this Agreement;
Approved Purpose means for the purpose of receiving and using the Application Service in the ordinary course of the Customer's business, and the business of its Users;
Australian Consumer Law means the Competition and Consumer Act 2010 (Cth);
Authorised Support Contact means the Customer's employee, agent or representative authorised to submit assistance requests to Inndox pursuant to clause 5, as specified in the Enterprise Subscription Form or as otherwise notified to Inndox from time to time;
Claim means any claim, demand, remedy, suit, action, proceeding, right of action, claim for compensation or claim for abatement of any monetary obligation, whether arising under contract (including this Agreement), in tort (including negligence), at common law, in equity, under statute, under an indemnity or otherwise;
Commencement Date means the date listed in the Enterprise Subscription Form;
Confidential Information means all confidential, non-public or proprietary information exchanged between the parties before, on or after the Commencement Date relating to the business, technology or other affairs of each party or which comes into a party’s possession pursuant to, or as a result of, any negotiations or discussions in connection with this Agreement including the existence, nature and terms of this Agreement, whether disclosed verbally, in writing, in electronic form or by any other means;
Consequential Loss means the following, however arising and even if it is reasonably contemplated by the parties at the Commencement Date as a likely result of breach of the Agreement:
(a) incidental, special, remote or unforeseeable loss or damage;
(b) loss of, damage to, breach of, or corruption of data;
(c) breach of security;
(d) loss of revenue, profit, income, bargain, opportunity, use, production, business, contract, goodwill, reputation anticipated savings, loss caused by business interruption, or the cost of obtaining new financing or maintaining existing financing, but excluding loss of any amounts that would, but for the act or omission of a party, have otherwise been payable under this Agreement;
(e) costs or expenses incurred to prevent or reduce loss or damage which otherwise may be incurred or suffered by a third party; or
(f) loss or damage of the nature set out above in clauses (a) to (e) (inclusive) that is incurred or suffered by or to a third party;
Corporations Act means the Corporations Act 2001 (Cth);
Customer means the party identified in this Agreement as the Customer, and includes its Representatives, subsidiaries and related bodies corporate;
Customer's Facilities means the servers, hardware, equipment, operating systems, software, data feeds, databases, network connections and telecommunications links from their systems (except the Inndox System) necessary for the Customer and the Users to receive and use the Application Service and the Inndox Materials;
Customer Material means all Material owned by the Customer or licensed to the Customer by a third party which is provided by or on behalf of the Customer to Inndox for the purposes of this Agreement and includes:
(a) any modifications or revisions to or enhancements of the Customer Material made after the Commencement Date;
(b) any Material derived from the Customer Material after the Commencement Date,
but excludes:
(c) Inndox Material; and
(d) Developed Material;
Data Breach means any actual or suspected:
(a) impairment, compromise or damage to the confidentiality, reliability, integrity or assurance of the Property Data;
(b) flaw or vulnerability of any kind in the security controls or other measures used to protect the Property Data; or
(c) misuse or loss of, interference with or unauthorised access to, modification of or disclosure of Property Data;
Developed Material means all Material in any form (whether visible or not) brought or required to be brought into existence by or on behalf of the Customer pursuant to this Agreement, other than Third Party IP;
Documentation means the user documentation included with the Application Service;
Enterprise Terms means these terms and conditions, as amended by us from time to time;
Enterprise Subscription Form means the physical or electronic subscription form or plan that sets out the terms of the Customer’s subscription to the Application Services, including but not limited to the Subscription Period and the Fees;
EULA means Inndox’s end user licence agreement governing the relationship between Inndox and the Customer’s Users, as amended by Inndox from time to time;
Error means a material failure of the Application Service to provide the functions described in the Documentation;
Fees means the subscription fees payable by the Customer to Inndox pursuant to this Agreement, as set out in the Enterprise Subscription Form or the Inndox website at the time of subscription and revised by Inndox from time to time pursuant to clause 8.1;
Force Majeure means anything outside the reasonable control of a party regardless of whether it is reasonably contemplated by the parties at the Commencement Date as a likely result of breach of the Agreement;
GST has the meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
Indemnified Party has the meaning given to it in clause 10.5;
Indemnifying Party has the meaning given to it in clause 10.5;
Inndox Material means any material (including know-how, technique, methodologies, concepts and ideas) owned by Inndox or licensed to Inndox by a third party before the Commencement Date or developed by Inndox or licensed to Inndox outside the scope of this Agreement and provided to the Customer in connection with the Application Service, but excludes Property Data;
Infringement Claim is:
(a) any Claim which would, if true, involve a breach of a warranty under clause 10.4;
(b) where Inndox is the indemnifying party, any actual, threatened or potential Claim by a third party that the supply or other use of the Application Service or Inndox Material infringes any Third Party IP; or
(c) where the Customer is the indemnifying party, any actual, threatened or potential Claim by a third party that the provision of Customer Material or its use in accordance with this Agreement infringes any Third Party IP;
Initial Term means the initial term for the Application Service, as set out in the Enterprise Subscription Form;
Insolvency Event means, in relation to a party, any one or more of the following:
(a) it is (or states that it is) insolvent under administration or insolvent (each as defined in section 9 of the Corporations Act);
(b) it has had a controller appointed, or is in liquidation, in provisional liquidation, under administration, or wound up or has had a receiver or receiver and manager appointed to any part of its property;
(c) it is subject to any compromise, arrangement, assignment, moratorium or composition, protected from creditors under any statute or dissolved (in each case other than to carry out a reconstruction or amalgamation while solvent on terms approved by the other parties, such approval not to be unreasonably withheld);
(d) an application or order has been made (and in the case of an application, it is not stayed, withdrawn or dismissed within 30 days), resolution passed, proposal put forward, or any other action taken, in each case in connection with that party, which is preparatory to or could result in any of paragraphs (a), (b) or (c) above;
(e) it is taken (under section 459F(1) of the Corporations Act) to have failed to comply with a statutory demand;
(f) it is the subject of an event described in sections 459C(2) or 585 of the Corporations Act (or it makes a statement from which another party to this Agreement reasonably deduces it is so subject);
(g) it ceases or threatens to cease to carry on all or a material part of its business;
(h) it suspends payments of its debts or is otherwise unable to pay its debts as and when they become due and payable; or
(i) something having a substantially similar effect to one or more of the preceding paragraphs happens in connection with that party under the laws of any jurisdiction,
unless such event or circumstance occurs as part of a solvent reconstruction, amalgamation, scheme, compromise, arrangement, merger or consolidation approved by the other parties to this Agreement;
Intellectual Property Rights includes all industrial and intellectual property rights, and includes any patents, registered designs, copyright (including future copyright), trade or service marks (whether registered or unregistered), trade secrets, know-how, rights in relation to circuit layouts, or other proprietary right, and applications for, and rights to apply for, registration of any of the foregoing;
Liability Cap Amount means the amount equal to the Fees paid for the Application Service from which the liability arose in the 12 months prior to the liability arising. In the event that the liability arose prior to the 12 month term having been reached, the total aggregate liability shall be the annual Fees which are reasonably expected to be paid under this Agreement for the Application Service from which the liability arose;
Loss means loss, damage, liability, charge, expense, outgoing, payment or cost of any nature or kind, including all legal and other professional costs;
Major Update means an Update that will or is likely to materially affect the Customer or its Users’ ability to access and use the Application Service as contemplated by this Agreement;
Material means material in whatever form, including without limitation documents, specifications, reports, products, equipment, information, data, graphic layouts, images and software;
Open Source Software means the open source software made available to the Customer from time to time as part of the Application Service;
Payment Terms means the terms on which payment must be made by the Customer to Inndox, as particularised in the Enterprise Subscription Form;
Personal Information means data by which a person may be personally identified, including a person's name, postal address, email address, telephone number and any other information a party collects, including that which is defined as personal or personally identifiable information under applicable Privacy Laws;
Privacy Laws means all domestic and international privacy data protection and anti-spam laws, rules, regulations and regulatory guidance relating to privacy, data security, cybersecurity, anti-spam and the collection, storage, use and disclosure of Personal Information, as applicable to either party;
Property Data means any information relating to real property inputted into or generated by the Application Service platform;
Renewal Period means a period of equal duration to the Initial Period for which this Agreement automatically renews in accordance with clause 2(b);
Representative means, in respect of a party, any person acting for or on behalf of the party and includes any director, officer, employee, agent, contractor or sub-contractor of the party;
Service Levels means the service levels set out in the Service Level Schedule;
Service Level Schedule means a schedule to this Agreement which sets out the Service Levels and Support Services for the Application Services;
Subscription Period means the period for which the Customer has paid the Fees, and includes the Initial Term and any Renewal Period;
Support Services means the services set out in the Service Level Schedule;
Third Party IP means Intellectual Property Rights in Material owned by a third party;
User means an employee, contractor or franchisee (as applicable) authorised by the Customer and approved by Inndox who use or have used the Application Service or any of the Inndox Materials;
Update means, in relation to the Application Service, software which has been provided or produced to alter, improve or add to the functionality of the Application Service or to overcome Error in the Application Service; and
User’s Facilities means servers, hardware, equipment, operating systems, software, data feeds, databases, network connections and telecommunications links from their systems (except the Inndox System) necessary for the User to receive and use the Application Service and the Inndox Materials.
20.2 Interpretation
In this Agreement:
(a) if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(b) words such as including or for example do not limit the meaning of the words preceding them;
(c) a reference to a document or instrument, including this Agreement, includes all of its clauses, paragraphs, recitals, parts, schedules and annexures;
(d) a party includes the party’s successors and permitted transferees and assigns and if a party is an individual, includes executors and personal legal representatives;
(e) an obligation or liability assumed by, or a right conferred on, two or more parties binds or benefits them all jointly and severally;
(f) no provision of this Agreement will be construed to the disadvantage of a party merely because that party was responsible for preparing this Agreement or including the provision in this Agreement;
(g) all monetary amounts are expressed in Australian Dollars ($AUD); and
(h) parties must perform their obligations on the dates and times fixed by reference to Brisbane, Queensland.
20.3 Precedence
Unless otherwise expressly provided, if there is any inconsistency between provisions or the documents comprising this Agreement, the terms of this Agreement can be ascertained by giving the documents the precedence reflected in the following order:
(a) Enterprise Subscription Form (being the Customer Terms);
(b) this Agreement;
(c) any relevant EULA; and
(d) any other schedule or annexure to this Agreement.
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